PERM vs. Pre-PERM Labor Certifications : Waiting for the Green Card
Posted Feb 18, 2005
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Since the final PERM regulations were released on December 27, 2004, many would-be immigrants have expressed the belief that they will obtain an employment-based green card in six months or within a year. Some have even thought that the entire green card process would be over in as little as 4 weeks! Some articles in the foreign press have served to fuel these rumors. It seems that people are confusing labor certification under PERM with the entire green card case. PERM does not change the basic requirements for a green card, only the process for obtaining the labor certification, which is the first stage of the green card process. Unfortunately, waiting times for a green card after PERM are unlikely, in many cases, to be much faster than the waiting times under the pre-PERM system.
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Three Stages of Green Card and Timing
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As many MurthyDotCom and MurthyBulletin readers know, there are three stages to the green card process: the labor certification stage; the I-140 stage; and the I-485 (or, alternatively, consular processing) stage. PERM processing only relates to the labor certification portion of the case. Under the pre-PERM system, a majority of the labor certifications took more than a year to process. In many cases, the processing times were in excess of two or three years. Even at the Backlog Elimination Centers (BECs) that are in place now for these cases, some cases are not expected to be processed for another two to two-and-a-half years. Once the labor certification is approved, the I-140 petition and I-485 application could take another one to three years to be processed. As a result, the pre-PERM labor certification process can take anywhere from two to five years to complete.
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Because the labor certification process often involves the longest wait time in the pre-PERM labor certification system, people have assumed that, if the PERM application can be processed in 45 to 60 days, then the case will get through the I-140 and I-485 stages in about a year or so. This would potentially save several years of waiting for the green card. These assumptions do not take retrogression into account, however.
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Retrogression Slows Process
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As regular readers of MurthyDotCom and the MurthyBulletin know, EB3 priority dates have already retrogressed for nationals from India, mainland China, and the Philippines. [See our December 10, 2004 NewsFlash, Employment Visa Numbers Retrogress, available on MurthyDotCom.] A person who does not have a priority date that was before the date listed in the Department of State (DOS) Visa Bulletin cannot file and/or complete the third stage (I-485 or consular processing) of the employment-based green card process. Thus, when the priority dates retrogress, or move backwards, many people are unable to move their cases forward to the I-485 stage. They are, essentially, left waiting until the priority dates move forward and their priority date becomes available.
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Priority dates retrogress when the number of those seeking employment-based green cards exceeds the visa numbers that are available in the particular category. These annual numerical and country limits are set by law. When more people seek employment-based green cards, the numbers retrogress further. Each time a person is granted an employment-based green card, there is one less visa number available for that fiscal year.
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PERM Makes Further Retrogression Likely
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When the labor process is slow and only releases a low number of approved cases at any given time, there are fewer people applying for the I-140 and, consequently, fewer people applying for the I-485 (or consular processing). This means that fewer people are obtaining employment-based green cards in any given year and that retrogression will either not occur or will occur in a way that only affects a relatively small number of those seeking the employment-based green card. This is under the pre-PERM system.
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When the labor process is faster, as expected under PERM, more individuals are eligible for I-140 filings and, consequently, more people seek to apply for the I-485 (or consular processing). This means that the number of people obtaining the employment-based green card in any given year fills up more quickly. As a result, retrogression is likely to increase to affect more people. It could expand to many more countries in EB3; expand into the EB2 category; result in further retrogressions of the priority dates in categories already affected; or a combination of some or all of these scenarios.
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Faster Processing of Cases by USCIS Fuels Retrogression
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Also fueling this retrogression are the backlog reduction efforts by the USCIS. Since demand for visa numbers creates retrogression, the faster approvals of I-140s/I-485s and the clearing of backlogged cases by the USCIS creates demand for visa numbers. A visa number must be available and is allocated to each I-485 or consular immigrant visa approval.
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With retrogression, one who files under PERM may get through the labor certification and I-140 process more quickly than under the pre-PERM system, but may be held up at the I-485 (or consular processing) stage. Such an individual will either have to wait to file the I-485 or, if the case is filed before the numbers retrogress, the I-485 (or consular processing) will not be approved until the priority date is current for these cases. This could be several years down the road for some nationals depending upon one's employment-based category priority date.
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Will Pre-PERM Cases also be Affected by Retrogression?
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Pre-PERM cases have been and will continue to be affected by retrogression as well. This means that, even after the wait at the labor certification stage, they may be stopped at the I-485 (or consular processing stage). Of course, these cases will have priority dates that are earlier than PERM priority dates. Thus, these people will have some potential advantage in a situation where the priority dates have retrogressed. This issue was discussed in our January 21, 2005 MurthyBulletin article, PERM and EB3 Candidates-File Regular LC Now!, available on MurthyDotCom.
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In a retrogressed situation, it may help to think of the three stages as a road trip. PERM is the highway, with a 70-mile-per-hour speed limit. Non-PERM is the much slower scenic route. However, both trips end at a body of water, with a ferry taking the cars to the desired destination. Cars can get on the ferry based upon the date that they started out. Thus, the PERM car will reach the body of water before the Non-PERM car. But the PERM car will have to sit until there is space on the ferry, just as the non-PERM car. In the end, the one who started earlier will likely get on the ferry first and reach the destination first.
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When Will Retrogression Affect Even More Cases?
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No one knows exactly when retrogression will affect more people. In mid-February 2005, the Department of State (DOS) released its March 2005 Visa Bulletin, indicating that the EB3 "other worker" preference category has retrogressed for all countries, as reported in our February 11, 2005 NewsFlash, EB3 Numbers Move Forward, "Other Workers" Retrogress. Unless Congress and the President enact a law that increases the number of employment-based green cards available per fiscal year, further retrogression can be expected. At present, it does not appear that expanding the numbers of immigrants to the United States for each fiscal year is on the agenda in Washington D.C., so it is likely that retrogression will continue to be an issue for the foreseeable future.
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Conversion of Non-PERM Cases
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While there may be other reasons to consider converting non-PERM cases to PERM cases, the assumption that the conversion will mean obtaining the green card faster should not be the sole reason for attempting to convert to PERM. Since there is a risk of losing the original priority date in a re-filing under PERM, the question of whether or not to convert must be carefully considered.
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Conclusion
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There will likely be some nationals who are not affected by retrogression and who will obtain their "green cards" faster by using PERM. The number of people within this unaffected group, however, is likely to decrease over time, as retrogression expands. Therefore, the threat or reality of retrogression must be another factor to consider when deciding how to proceed with any case.
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