Going to PERM or Not?
va-12-04 said:
Hi:
What will be the situation if I am in 6th year and my new PERM case gets rejected. Does it affect the old labor any way.. I really do not want to loose the old priority date(EB2-12/2004:India).
Under whatb circumstances I can use the old PD with the new PERM?
Thanks
Hi va-12-04,
Below is what I got from my lawer before I got 45 day letter. We have conference call next Tuesday to discuss about this issue. My H1 will be ended 6th year on May, 2007.
"I had made a note to follow up with you to discuss the new PERM program.
There have been a number of changes in the processing of visas, and unfortunately, they are not positive. There are no updates on the
backlog center yet. They have not published any processing times. However, it is likely that it will be quite some time before they reach your case. We have not received 45-day letters for any cases yet. We have been told that they are very behind in processing these letters.
I also want to inform you about another situation that has occurred as of October 1, 2005. This is a lengthy explanation, so please read through it to understand the impact this new situation will have on your pending case.
In order to be granted permanent residence, you must be granted an immigrant visa number. Employment-based applications are separated
into several categories based on the requirements for the position for which the labor certification application was filed. In your case, the initial job requirements indicated that the position requires a minimum of a Bachelor's degree. This would place the job in the EB3 (Employment-based 3rd) category.
There is an annual limit on the number of immigrant visas issued in
each category
per country. Over the past several years, this has
not been a problem because CIS has approved relatively few permanent
residence applications (thereby increasing the backlog of cases within CIS, and lengthening the processing times). However, CIS is now moving through cases much more quickly, and therefore they are approving more cases and using more visa numbers. Visa numbers are assigned based on a priority date which is established by
the date of filing of the labor certification application (in your case, March 20, 2003). When the State Department begins to run out of visa numbers for the current fiscal year, the priority dates retrogress, and only those applications with priority dates prior to the
dates listed on the visa bulletin can be processed.
The State Department has announced that, as of October 1, the priority date for EB3 applicants from all countries (except India, China and the Philippines, which have retrogressed further back) has retrogressed back to March 1, 2001. This means that you are prohibited from advancing to the final stages of the Permanent Residence process (i.e. filing an I-485 Adjustment of Status application or Consular Processing) until your priority date becomes current.
The State Department has indicated that forward movement in the
retrogressed dates is likely to be slow, so there is no way to estimate how long it will be before your priority date becomes current. The State Department issues the Visa Bulletin for each month in the middle of the previous month. You can find the current Visa Bulletin online at
http://www.travel.state.gov/visa/frvi/bulletin/bulletin_1360.html.
As you know, while your labor certification application is pending,
you will continue to be eligible for extensions of your H-1B status
on a yearly basis. However, even if you had an approved labor
certification today, we would not be able to file for adjustment
of status to permanent residence for you. Therefore, even though
the backlog center is taking a long time, it is not significantly
impacting your ability to file for permanent residence. This means
that it even if you file under PERM and get an approved labor certification very quickly, you would not be able to file your I-485. However, we could file a visa petition (I-140) for you.
The only way this would change is if you were in another job at your firm that required either a Master's degree or a Bachelor's degree
plus 5 years experience. In that case, you would be in the EB2 category, and that category is not current backed up for your country."
