Lost PD. Help!

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xiaopang

Registered Users (C)
Since my traditional labor application was stuck in Philly backlog center, this year we converted it to PERM. According to USCIS, you can keep the original PD as long as the job opportunity remains the same as in the original labor application.

So, the PERM was approved but the PD is pushed back to 2006. This is devastating. I was told the reviewer did a word for word comparison between the description in the original application and the new PERM newspaper ads, and found they were not literally identical, hence the decision. In reality, my job has aboslutely no change whatsoever.

What are my options? My boss and our lawyer (Fragomen) want me to suck it up and wait (our department has lost many people so they would love to trap me here for years). Fragomen says since the PERM is approved, we can't really use the appeal process.

I am very frustrated to say the least. I am inclined to pursue all options, including suing DOL in court.

Any thoughts/tips from you guys will much appreciated!
 
I am sorry to hear what has happened to you. When you say "convert", I guess you have withdrawn your regular labor. In that case, I don't think you have any option. You might want to go labor department website to read the faqs. I believe there was one answering the "convert" which says it has to been exactly same as the older one to retaint the pd. Or you might find some way to fight with Labor department. I think you might just sue your attorney or ask money back.
 
Thanks for your input. The money is not what concerns me. The additional waiting time of 1-3 years is going to kill me. We have very long hours and super intensive work schedule here (in fact, only 1/3 of the staff that worked here 2 yrs ago are still working here). This is nuts.
 
My opinion is not about your legal situation since it is bit complex. I would like to say though that you keep your cool. It is very important to be focused in this kind of situation. I agree that it is frustrating but you are the only person who can help yourself. So please do not get more distracted. Keep it cool and weigh your options carefully. What happened was bad but do not make it worse by loosing your mind on it.

I hope the situation gets resolved. I would suggest to contact AILA.org since they are very good in this kind of "Special Case" scenarios.

Best Luck !
 
Change your job. NOW!!!!
If you have already lost your PD, why not get a good job?!
The longer you stay on this job, the more will be temptation to not lose even this perm PD.
 
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2nd opinion

My personal opinion : The good thing about these immigration / labour laws is that the consittution always allows some kind of appeal , 2nd review by govt agency.
So the best thing for you is to schedule a 2nd opinion consulation with another attorney. It might cost you 250 $ for an hour , but you and i both can understand that its negligible sum to pay for what is at stakes here.
 
It could also be a case of attorney in cahoots with your employer to screw your PD. Remember, it's the employer who's paying, not you.

I don't understand why they cannot appeal. Try to insist on this. A good lawyer can always find ways. Or at least not give up so easily.

The lawyers could also be just lazy. They want to do most of the cookie-cutter work (like filing labor application by just doing cut-n-paste over a template) and avoid anything that requires real work such as appeals.
 
Thank you all for the input.

Gravitation, I think you might be right on this. I just discovered that the lawyer actually included some tighter requirements in the "additional requirements and specific skills" section of the PERM, which could arguably make it NOT "identical" to the original application. Either they didn't know what the F they were doing, or they didn't care if I could retain my old PD as long as the PERM is approved (so they continue to look good without a losing track record), or (ever worse), they may have conspired with our HR and deliberately done this so I will be stuck on this job for a few more years.

It does seem like not many people have run into this situation and the legal ramifications are not clear, but this is pretty ridiculous.
 
NO way

xiaopang said:
Thank you all for the input.

Gravitation, I think you might be right on this. I just discovered that the lawyer actually included some tighter requirements in the "additional requirements and specific skills" section of the PERM, which could arguably make it NOT "identical" to the original application. Either they didn't know what the F they were doing, or they didn't care if I could retain my old PD as long as the PERM is approved (so they continue to look good without a losing track record), or (ever worse), they may have conspired with our HR and deliberately done this so I will be stuck on this job for a few more years.

It does seem like not many people have run into this situation and the legal ramifications are not clear, but this is pretty ridiculous.
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My friend your law firm ( Fragomen) is a repute law firm. They wont do stupid tactis such as collaborating with your employer to make you loose the PD to retain you for long time.
BTW which company r u working for? Or whcih state r u located in?
 
Believe me, this is not a crusade to destroy a fine firm's reputation.

The lawyer has stressed to me several times that her "client" is my employer and not me. And there is no doubt our HR manager wants to keep me for years. She once even asked me, "are you trying to get the GC right away so you can quit the job?" So even if Fragomen tries to lengthen the process, it would still be in their "client's interest".
 
Your lawyer is right. He is paid by your company and would do the very best to keep you locked.

I went through a very similar hole and had to fight with all I had got to prevent this.

What options do you have ? Which country and category you belong to ? Also if you put up a fight, can the decision be changed and you get your old PD. This itself may take some time.

Think of all the options other than current company.

xiaopang said:
Believe me, this is not a crusade to destroy a fine firm's reputation.

The lawyer has stressed to me several times that her "client" is my employer and not me. And there is no doubt our HR manager wants to keep me for years. She once even asked me, "are you trying to get the GC right away so you can quit the job?" So even if Fragomen tries to lengthen the process, it would still be in their "client's interest".
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Sorry to hear this. I heard about a similar case with another 'so called reputed firm' Sheela Murthy. They are also notoriously employer friendly and screw the employee most of the times. Very mercenary in their approach.


I personally do not think you can do anything with your current attorney given their attitude and approach. If you can take the case away to a different attorney you should try to do that. If not I guess, cut your losses and switch jobs.

We need to firmly teach our employers that they just cannot exploit us endlessly and think that we are trapped given the GC situation. I recently switched jobs with a pending LC for nearly 3 years. Given the fact that retrogression has no immediate remedy in sight with all the dirty politics, we need to take decisions to enhance our career and not stay trapped in this illusion called a Green card.

What the heck , worst situation stay out of the country and return again for another 6 years.
 
how did you convert? did you withdraw the one in BEC?
doesn't the fact that the word-to-word comparison not match mean that the one in BEC is safe still and you got your perm for a different opportunity?
xiaopang said:
Since my traditional labor application was stuck in Philly backlog center, this year we converted it to PERM. According to USCIS, you can keep the original PD as long as the job opportunity remains the same as in the original labor application.

So, the PERM was approved but the PD is pushed back to 2006. This is devastating. I was told the reviewer did a word for word comparison between the description in the original application and the new PERM newspaper ads, and found they were not literally identical, hence the decision. In reality, my job has aboslutely no change whatsoever.

What are my options? My boss and our lawyer (Fragomen) want me to suck it up and wait (our department has lost many people so they would love to trap me here for years). Fragomen says since the PERM is approved, we can't really use the appeal process.

I am very frustrated to say the least. I am inclined to pursue all options, including suing DOL in court.

Any thoughts/tips from you guys will much appreciated!
Click to expand...
 
Tusharvk, the original labor application was withdrawal as part of the PERM process.

Indio, I have about 15-16 months left on my H1 so I am not sure I have enough time to get a new PERM filed if I switch a job (I assume I have to file the I-140 by the 5th anniversary of my H1 in order to get extensions, so I really don't much time left). Either way, interviewing and getting a new job will be a pretty big undertaking...

Realistically, I can either wait for the new PD to get current or to file an appeal and try my luck.
 
xiaopang said:
Tusharvk, the original labor application was withdrawal as part of the PERM process.

Indio, I have about 15-16 months left on my H1 so I am not sure I have enough time to get a new PERM filed if I switch a job (I assume I have to file the I-140 by the 5th anniversary of my H1 in order to get extensions, so I really don't much time left). Either way, interviewing and getting a new job will be a pretty big undertaking...

Realistically, I can either wait for the new PD to get current or to file an appeal and try my luck.
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xiaopang: FYI: 15-16 months is ample time to get a new PERM filed and for H-1B extensions. You are eligible for H-1B extensions if you have a pending LC for more than 365 days or if you cannot file for I-485

In your case or rather everyone's case given that a new PERM can be approved in 4- 6 months now and the inability to file I-485 due to retrogression, 3 year H-1Bs can be obtained. I am with a new employer with only 13 months left on H-1B and plan to go the PERM route and apply for additional H-1B beyond the 6 year.
 
xiaopang said:
Believe me, this is not a crusade to destroy a fine firm's reputation.

The lawyer has stressed to me several times that her "client" is my employer and not me. And there is no doubt our HR manager wants to keep me for years. She once even asked me, "are you trying to get the GC right away so you can quit the job?" So even if Fragomen tries to lengthen the process, it would still be in their "client's interest".
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I know of another case where frago f***ed up. They could not even reply to a query from DOL within 45 days and my friend lost his PD! His case got closed.
 
krik,

I think you can use your old PD of May 2002 after your PERM is approved with the new employer?


krik said:
Folks,

Just wanted to say that you can switch employers on H1B even after 6 years is over, if you are willing to make some compromises.

For example,
1. I came to the USA in Feb 1999.
2. My Labor app was filed in May 2002.
3. I am on my 8th year of Extension, valid from Feb 2006 to Feb 2007.
4. A very good job opportunity was presented in July 2006.
5. After a lot of thought, I decided to take the plunge. My reasoning, maybe flawed, was this. If there is no legislation change, PD of May 2002 will take probably another 3 years to become current. A PD of 2007 will take double the time probably. I know this. However, if legislation changes , then quite possible that PD 2007 will be quick too. In addition, i thought it does not really matter if you are on EAD/H1/GC , as long as you are happy with your current job and it provides you appropriate compensation and job satisfaction.
6. After a lot of thought, I transferred my H1 to the new employer. Since my Labor with PD 2002 with the old employer was filed over 365 days back, I was eligible for an additional one year extension. Thus, the new H1 is valid till Feb 2007 + 1 year from that = valid till Feb 2008.
7. I am in the process of applying for Perm by end of Jan 2007.
8. If nothing else, I can hope for getting the Perm in 2007 + file and get I140 approved in 2007. Then, i can get a 3 yr extension on H1 in 2008.

Ok.......did not want to bore you with the details. But just wanted to share that this is possible too. Everyone has different priorities, agreed...and should look into what is important for them. Just wanted to share that you are not really stuck with an employer even after 6 years........Timing is everything.

Regards.
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segio_01,

Unfortunately No. The old PD of May 2002 was never approved, but still in the Philly BEC.

Even if the old Labor app had been approved, you need the I140 to be approved too with the old employer. If that is done, then you can attempt to port your PD when applying for the new I140 with the new employer.

Thanks...

segio_01 said:
krik,

I think you can use your old PD of May 2002 after your PERM is approved with the new employer?
Click to expand...
 
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