BEC Conversion - Can I change my mind?

P

prezcalvin

Registered Users (C)
Hello,

EB2-nonRIR Labor filed PD: October 2003.

Company filed for PERM July 2006 trying to retain my old priority date. Now, I was born in India but my wife was born in Britain and Britain is current right now. I didn't think that BEC conversion would take so long ( it's been 4 months now), but now after reading that some people wait for over 9-10 months for it, I am willing to lose my priority date and just risk it with a new PD since my wife is current.

My question is can the lawyers withdraw the existing PERM and file for a new one which does not try to retain the old priority date ? I mean, can they do it without going through the whole recruitment blah blah again in a matter of days or is it a major procedure?

Also, seeking advice from those who are much wiser than me, do you advice I do this or just be patient and wait for the BEC conversion to come through ?

Thanks guys!
 
Did your employer file (1) an RIR conversion request or (2) an identical PERM application asking to retain the original (non-RIR) priority date? It's not quite clear from your inquiry.

If (1), your BEC case could be pending for a while. It doesn't seem like the DOL knows what to do with RIR conversion requests just yet. However, a lot of employers are filing RIR conversion requests, so they'll probably have a protocol soon.

If (2), the processing of the PERM application would require the withdrawal of the application pending at the BEC. So there's a chance that if the PERM is withdrawn, you could be stuck without a pending labor cert anywhere ... which would suck for you if you're approaching your sixth year of H-1B.

In any case, I would just wait it out -- less risky -- unless your immigration counsel and/or employer strategizes your case in another way that can safeguard your H-1B extensions.

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Hi Daniela,

Thanks for the answer. It is #2, non RIR PERM conversion for me. MY sixth year starts in March of 2007, so I have some time. One of my questions was whether it will require the whole procedure of receruitment etc. to be repeated if I withdraw my PERM case and refile for a fresh PD or can it be done in a matter of weeks? Thanks.

I am most likely going to wait it out, but just wondering since my wife is current fi it makes sense to just get rid of the old PD.
 
Just to be clear, then, you don't have a conversion. You have a withdraw/re-file, meaning "withdraw the labor cert at the BEC and re-file an identical PERM application."

It sounds like you still need the BEC labor cert to extend your H-1B, so I definitely wouldn't touch the withdraw/re-file.

PERM recruitment is valid for 180 days. More likely than not, at least some of the original recruitment for your PERM case has expired, so your employer may have to re-recruit for a new PERM case. Who knows if they would even agree to that ... ?

As is, your employer is (1) providing you a path to a green card and (2) safeguarding your work authorization beyond your sixth year. They're not necessarily required to go above and beyond for you just because your spouse would make your priority date current. I think they're being conservative and doing the right thing, but you may want to ask your immigration counsel for confirmation.

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