* We note that, following the last retrogression, the priority dates became current (indicated by the letter "C") for all categories and countries in July 2001 and remained so through December 2004.
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The priority dates only became current in July 2001 because of certain provisions in the AC21 law that allowed for the reallocation of about 50,000 unused immigrant visa numbers regardless of a person's country of origin. Therefore, when drawing any conclusions about the likely duration of the retrogression, this important factor must be taken into account. There is a movement towards requesting similar reallocation this time around, which would certainly provide much- needed relief. We always recommend, however, planning for the worst, while hoping for the best.
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Filing a Regular LC Case Will Provide an Earlier Priority Date!
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The future cannot be predicted with any certainty based on our chart on the history of the last retrogression. The difference that a day, a week, or a month in priority dates can make in employment-based immigration cases is clearly illustrated, however. This difference can critically affect the timing of the filing of the final step in the green card case or in one's eligibility for obtaining the immigrant visa abroad at the consulate, as well as the timing of the approval of the green card.
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EB3 Candidates Must Consider Regular LC Now, Before PERM
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As regular MurthyDotCom and MurthyBulletin readers know, the DOL is changing the entire permanent labor certification system. The new system, known as PERM, is scheduled to commence from March 28, 2005. All permanent labor certification cases filed on or after March 28, 2005 must use the PERM system. Until that time, cases can and must be filed under the current labor certification procedures. More information about the new PERM regulation is available on MurthyDotCom.
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The big advantage of PERM is that it is slated to be significantly faster than the current system. As many know all too well, the current backlogs in the labor certification process historically have been measured in years in many locations. The most recent information we have received from the DOL came in a January 11, 2005 meeting in Chicago, where it was revealed that PERM approvals are expected 45 to 60 days after the filing of the application. This is assuming that there is no audit. If a decision is made within that time, and it is positive, the next step would be for the employer to file the I-140 petition for the employee. At that time, the EB3 category candidate would have to wait until the priority date becomes current in order to be able to file the I-485 application for adjustment of status or obtain the immigrant visa abroad. Thus, with the current EB3 retrogression, much of the benefit of the faster labor certification could be nullified. It is a "hurry-up-and-wait" scenario, much like the car that accelerates only to reach a stop sign or a red light and lose all the momentum gained.
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Alternatively, until March 28, 2005 the employer may choose to file labor certifications under the existing rules. Currently, cases may be filed under RIR (reduction in recruitment) or Regular (without prior recruitment). Generally, the processing of regular labor cases is slower than that of RIR cases. Given the limited time left before PERM will become mandatory, unless recruitment efforts have already started or been completed, there is not enough time to initiate a full recruitment campaign for an RIR case. Thus, a labor certification case started at this time would, in all likelihood, have to be filed as a regular case. These cases could be prepared and filed fairly quickly, if needed.
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In light of retrogression, we at The Law Office of Sheela Murthy believe this may be a viable, and perhaps preferable, option for an EB3 candidate. If the EB3 candidate does not wait and file under PERM, but files a standard labor certification case immediately, the person will have a priority date that is several months ahead of the earliest PERM cases. The only downside for the employer or the employee is having to pay some legal fees to file a regular LC case now and then again for PERM later if one seeks to convert to PERM processing. The benefit of an earlier priority date would, for most applicants, outweigh the additional legal fees to start a regular LC process. While the regular labor certification case will take a long time to process under regular labor processing, taking this approach ultimately may speed the case along because of the earlier priority date. This is the value of an earlier priority date now that there is a retrogression in priority dates.
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EB3 Candidate Has Two Options prior to March 28, 2005 Only
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Taking this approach potentially opens two options to the EB3 candidate, as well. The individual could wait out the standard case in its normal progression, which may improve with backlog reduction efforts. Alternatively, the person could withdraw the case and re-file under PERM at a later time, attempting to carry-over the original filing date as the priority date to the new case. While there is some uncertainty about the ability to maintain the original filing date on a re-filed regular labor case under PERM, filing the case under current procedures at least potentially provides the candidate with another option. As seen from our chart above, it is possible that having even a slightly earlier priority date could result in a net advantage in the processing of a case amounting to many months or even years!
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We at The Law Office of Sheela Murthy, P.C. hope that our review and analysis provides a framework to guide some EB3 applicants towards a wise choice in the limited time available to file a regular case under EB3 prior to March 28, 2005.
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