PERM and Priority date
- Thread starter drhnp
- Start date
Conversion of Pending Cases
Section 656.17
(d) Refiling Procedures.
(1) Employers that filed applications under the regulations in effect prior to March 28, 2005, may, if a job order has not been placed pursuant to those regulations, refile such applications under this part without loss of the original filing date by:
(i) Submitting an application for an identical job opportunity after complying with all of the filing and recruiting requirements of this part 656; and
(ii) Withdrawing the original application in accordance with ETA procedures. Filing an application under this part stating the employer's desire to use the original filing date will be deemed to be a withdrawal of the original application. The original application will be deemed withdrawn regardless of whether the employer's request to use the original filing date is approved.
(2) Refilings under this paragraph must be made within 210 days of the withdrawal of the prior application.
(3) A copy of the original application, including amendments, must be sent to the appropriate ETA application processing center when requested by the CO under Sec. 656.20.
(4) For purposes of paragraph (d)(1)(i) of this section, a job opportunity shall be considered identical if the employer, alien, job title, job location, job requirements, and job description are the same as those stated in the original application filed under the regulations in effect prior to March 28, 2005. For purposes of determining identical job opportunity, the original application includes all accepted amendments up to the time the application was withdrawn, including amendments in response to an assessment notice from a SWA pursuant to Sec. 656.21(h) of the regulations in effect prior to March 28, 2005.
Prepared by Rajiv S. Khanna--Work in Progress
Immigration.Com
Last updated: 1/4/2005
Section 656.17
(d) Refiling Procedures.
(1) Employers that filed applications under the regulations in effect prior to March 28, 2005, may, if a job order has not been placed pursuant to those regulations, refile such applications under this part without loss of the original filing date by:
(i) Submitting an application for an identical job opportunity after complying with all of the filing and recruiting requirements of this part 656; and
(ii) Withdrawing the original application in accordance with ETA procedures. Filing an application under this part stating the employer's desire to use the original filing date will be deemed to be a withdrawal of the original application. The original application will be deemed withdrawn regardless of whether the employer's request to use the original filing date is approved.
(2) Refilings under this paragraph must be made within 210 days of the withdrawal of the prior application.
(3) A copy of the original application, including amendments, must be sent to the appropriate ETA application processing center when requested by the CO under Sec. 656.20.
(4) For purposes of paragraph (d)(1)(i) of this section, a job opportunity shall be considered identical if the employer, alien, job title, job location, job requirements, and job description are the same as those stated in the original application filed under the regulations in effect prior to March 28, 2005. For purposes of determining identical job opportunity, the original application includes all accepted amendments up to the time the application was withdrawn, including amendments in response to an assessment notice from a SWA pursuant to Sec. 656.21(h) of the regulations in effect prior to March 28, 2005.
Prepared by Rajiv S. Khanna--Work in Progress
Immigration.Com Last updated: 1/4/2005
Had a lengthy conversation with attorney. Seems to disagree that PERM can be filed in RIR cases without loss of PD. As you notice in line 1
"Employers that filed applications under the regulations in effect prior to March 28, 2005, may, if a job order has not been placed pursuant to those regulations, refile such applications under this part without loss of the original filing date by"
The key is JOB ORDER. The Job order is not placed in non RIR cases so they can retain PD but in RIR, the job order and recruitment efforts hsve been made, as such the PD retainer does not apply to RIR. Certain attorneys have appealed to DOL to remove that line and are also considering lawsuit for that. Till that time, RIR cases would not be able to convert to PERM and retain PD.
If any lawer has different thoughts, please let me know.
Sincerely
"Employers that filed applications under the regulations in effect prior to March 28, 2005, may, if a job order has not been placed pursuant to those regulations, refile such applications under this part without loss of the original filing date by"
The key is JOB ORDER. The Job order is not placed in non RIR cases so they can retain PD but in RIR, the job order and recruitment efforts hsve been made, as such the PD retainer does not apply to RIR. Certain attorneys have appealed to DOL to remove that line and are also considering lawsuit for that. Till that time, RIR cases would not be able to convert to PERM and retain PD.
If any lawer has different thoughts, please let me know.
Sincerely
Your attorney is Wrong. I have seen coments from respected attorneys (Rajiv, Murthy and others) and also AILA summary of PERM regulations. They all agree that the RIR cases can be converted to PERM while retaining PD, if the RIR and PERM applications are Identical.
The Job Order is placed with SWA for Non-RIR cases.
The Job Order is placed with SWA for Non-RIR cases.
drhnp said:
eppo_varum_enGC
Registered Users (C)
Both you guys are right. It is upto the individual interpret the rules. DOL is made a mistake. If DOL says one can not retain PD if job order placed with SWA (in regular cases) at the same time if DOL allows RIR guys to retain PD, it creates a room for a legal suit by the regular guys who has affected by this.
In simple logic, JOB order means employer or SWA is looking for a qualified US worker for the job for which employer is seeking a foreigner. It is one form of recruitment. In RIR case, employer has already done the same thing (looking for US worker) before filing LC. Then, why is the double standard?
Hence it is confusing.
In simple logic, JOB order means employer or SWA is looking for a qualified US worker for the job for which employer is seeking a foreigner. It is one form of recruitment. In RIR case, employer has already done the same thing (looking for US worker) before filing LC. Then, why is the double standard?
Hence it is confusing.
I agree with the double standard but the question here is whether RIR can be converted to PERM while retaining the PD? According to my understanding the answer is YES. This is what expert attorney's came to conclution after reading the PERM publication. This is not upto the DOL to interprit in a way not intended by the authors of PERM.
eppo_varum_enGC said:
eppo_varum_enGC
Registered Users (C)
GC_DJ said:
Yes, All reputed attorneys are saying that RIR can be refiled with old PD. If it is so, DOL has some reason to say PD cannot be maintained if joborder (recruitment) is already placed. What factor is stoping them not to refile in PERM? DOL has to clearly say what is the technical reason behind it.
Another problem with converting RIR to PERM is that DOL has to locate the original LC filed to confirm that both job descriptions are the same. So the 45-60 day processing time goes out of the window because right now noone has an idea where the applications are.
Any comments
Any comments
I am getting very confused. Eighty percent of lawyers, I have talked to say that RIR can not be converted to PERM while retaining priority date, even if the job description is identical, where as some contend that it is possible. Does any one has clear info from DOL regarding this matter?
Answer is *NO*
I asked the same question to my attorney *Well known in this field* and their answer is :-
Regarding conversion from RIR to PERM and maintaining the PD :-
"In addition, please review the information regarding the retrogression of priority dates for Indian nationals I provided in the email sent yesterday. Unless you have citizenship in another country where visa numbers have not retrogressed, the most important factor for you is having the earliest possible priority date, right now your priority date is XXX **, 2003 based on your pending application (with RIR) in #####. If you file a new application (using PERM) and use that to obtain your green card the new priority date would apply. So the best option for you would be to maintain your existing application if possible. The difference in the priority date can add several years to the process."
Hope this helps. I am NOT moving ahead with PERM. I will stick with RIR and see how it goes.
Thxs
I asked the same question to my attorney *Well known in this field* and their answer is :-
Regarding conversion from RIR to PERM and maintaining the PD :-
"In addition, please review the information regarding the retrogression of priority dates for Indian nationals I provided in the email sent yesterday. Unless you have citizenship in another country where visa numbers have not retrogressed, the most important factor for you is having the earliest possible priority date, right now your priority date is XXX **, 2003 based on your pending application (with RIR) in #####. If you file a new application (using PERM) and use that to obtain your green card the new priority date would apply. So the best option for you would be to maintain your existing application if possible. The difference in the priority date can add several years to the process."
Hope this helps. I am NOT moving ahead with PERM. I will stick with RIR and see how it goes.
Thxs
This from Rajiv for another thread:
In future, please send me and/or the moderators an email if something is a consistently unclear issue of law.
Q. Can we file another Labor Cert application under PERM and still keep pending another application through RIR/NON RIR.
A. Short answer: Yes. But do read on.
If you want to transfer the priority dates, you will have to withdraw the old labor cert and refile within 210 days a PERM base labor cert. Both labor certs MUST be IDENTICAL (absolutely same).
If you do NOT want to transfer the PD, you could file an identical OR a different application under PERM. As long as both applications are filed in good faith (not fraudulent), you can take advantage of both. USDOL does not like this practice, but so far they can do nothing about it.
Also keep an eye here:
http://www.immigration.com/dollinks/permindex.html
I trust that makes things clear. Good luck. Rajiv.
__________________
Rajiv S. Khanna; Law Offices of Rajiv S. Khanna, PC - Your Host
703-908-4800 Extension 110
In future, please send me and/or the moderators an email if something is a consistently unclear issue of law.
Q. Can we file another Labor Cert application under PERM and still keep pending another application through RIR/NON RIR.
A. Short answer: Yes. But do read on.
If you want to transfer the priority dates, you will have to withdraw the old labor cert and refile within 210 days a PERM base labor cert. Both labor certs MUST be IDENTICAL (absolutely same).
If you do NOT want to transfer the PD, you could file an identical OR a different application under PERM. As long as both applications are filed in good faith (not fraudulent), you can take advantage of both. USDOL does not like this practice, but so far they can do nothing about it.
Also keep an eye here:
http://www.immigration.com/dollinks/permindex.html
I trust that makes things clear. Good luck. Rajiv.
__________________
Rajiv S. Khanna; Law Offices of Rajiv S. Khanna, PC - Your Host
703-908-4800 Extension 110
drhnp said:
naku_GC_kavali
Registered Users (C)
PERM and Pre approved LC - Urgent
Gurus - My labor ( EB2 ) is approved recently and My employer is planning to apply for I-140 in April 2005. With regards to PERM commencing in March 05 will effect my 140 application date..?
Please advise.
Thanks.
Gurus - My labor ( EB2 ) is approved recently and My employer is planning to apply for I-140 in April 2005. With regards to PERM commencing in March 05 will effect my 140 application date..?
Please advise.
Thanks.
naku_GC_kavali
Registered Users (C)
Thanks
Thank You gth9..
Thank You gth9..
Had extensive talks with a multitude of lawyers.
In Nutshell
As far as we know now now only NON RIR can retain priority date. RIR's may be able to retain PD but, it's not clearly stated by DOL( kinda vague about "job order"). Awaiting DOL's clearification. Even if DOL let's you retain PD, it remains to be seen how the US Immigration dept with handle from there.
Even if they let you retain PD, PERM timings won't apply to "converters" as the National Processing Center will have to track the old LC from Backlog reduction center to make sure if the applications are "IDENTICAL". How these two dept's i.e NPC and BEC will share data is unknown.
I am not trying to dissuade anyone from trying to convert their traditional RIR into PERM. I am only raising certain points due to which it may not be as rosy as it seems to be.
Sincerely
In Nutshell
As far as we know now now only NON RIR can retain priority date. RIR's may be able to retain PD but, it's not clearly stated by DOL( kinda vague about "job order"). Awaiting DOL's clearification. Even if DOL let's you retain PD, it remains to be seen how the US Immigration dept with handle from there.
Even if they let you retain PD, PERM timings won't apply to "converters" as the National Processing Center will have to track the old LC from Backlog reduction center to make sure if the applications are "IDENTICAL". How these two dept's i.e NPC and BEC will share data is unknown.
I am not trying to dissuade anyone from trying to convert their traditional RIR into PERM. I am only raising certain points due to which it may not be as rosy as it seems to be.
Sincerely