Labor cerification - BPC and PERM

[KbK]

Hi friends
I am sure lot of applicants are hold up in labor certification at Backlog Processing Centers. The implication of this delay are; even if the current bill is passed and all the provisions in the current bill are implemented, still it will be of NO USE to the applicants who are awaiting labor certification.

The other option is to apply through PERM and try to get certification quickly. But the catch here is, if the PERM application is approved then the original labor application is cancelled and priority date would become 2006. For example, if someone's application is pending since year 2002 and now if that person applies through PERM and if it gets approved within three months then that person would loose the priority date of 2002 and will have a priority date of 2006. If the green card numbers are not current then it would be a big disadvantage.

On the other hand if someone had applied through PERM in 2004 and his/her labor is approved then, with this new proposed bill, there is a good chance that he/she might get green card immediately because priority dates would have moved up to 2004. The reason I think this is a possibility is because, the quota numbers are going to increase substantially and BPC is very slow in approving labor certification. Hence there is a good chance that priority dates would move up fast.

If this happens then people who had applied earlier and waited for such a long time, will be at very big disadvantage.

I propose that we should request for change in law to allow existing applicants to apply through PERM and keep the old priority dates even after the application is approved.

This will not only help all of us but also help the authorities; as it would reduce the work load on BPC.

Friends at the end, may I request you to please send your thoughts on this?

Thanks

[guesswho]

I though there is already an option where you could apply in PERM requesting transfer of the non-perm application to PERM (as against a new PERM application). That way you can keep the old PD.

[popoye]

Yes. the provision is already there. You can covert your RIR or non-RIR cases in BPC to PERM without losing priority date, as long as the case is identical

[21stIcon]

I filed my conversion case two months ago, they have not withdrawn my BEC case yet since BEC had not sent 45 days letter so far and BEC could not locate my old case to verify with new case, so my conversion case dormant at PERM as well as old case @ BEC. no use of PERM conversion if you have not received 45 days letter, it may be helpful for who have received 45days letter and waiting for BEC decision.


Thx,
PD -->01/07/2004
RIR/TX
No 45 days letter yet
PERM Conversion filled on 02/07/06

[guesswho]

That sucks

[KbK]

Originally Posted by popoye

Yes. the provision is already there. You can covert your RIR or non-RIR cases in BPC to PERM without losing priority date, as long as the case is identical

Dear friends
Can anyone please give details of this provision...like under which section it is allowed or which website this information is available etc?
Thanks

[alanoconnor]

http://www.ows.doleta.gov/foreign/fa...rs.asp#refile3

REFILING

Can the employer refile a labor certification application filed under the previous permanent labor certification regulations under the new streamlined system and retain the filing date of the original application?
Yes, if a job order has not been placed pursuant to the regulations in effect prior to March 28, 2005, an employer may refile by withdrawing the original application and submitting, within 210 days of withdrawing, an application for an identical job opportunity which complies with all of the filing and recruiting requirements of the new PERM regulation.

NOTE: Indicating on the Application for Permanent Employment Certification, ETA Form 9089, the desire to use the filing date from a previously submitted application, i.e., marking "yes" to question A-1, is deemed to be a withdrawal of the original application.

NOTE: If a job order for an application has been placed by the State Workforce Agency (SWA) as part of the traditional recruitment process under the regulations in effect prior to March 28, 2005, the employer is prohibited from refiling the application and retaining the original filing date. However, if an employer placed a job order as a recruitment step in a reduction-in-recruitment application, the job order is not considered a job order placed by the SWA as part of the traditional recruitment process and the employer is permitted to withdraw and refile.

[mbartosik]

I posted a few days ago here
http://immigrationvoice.org/forum/showthread.php?t=544 (Let's ask for ability to keep priority dates)

For those people on 1 year extensions (or near end of 6 years) they cannot refile without perfect timing because otherwise the labor would be cancelled when filing, and thus PERM would not be outstanding for greater than 12 months.

Also if your job has been in DoL and BEC for 4 years and is in the technoology business then it is likely that the description has changed enough to make an identical filing untrue, just because technology changes and thus skills requirements do, and thus PD is not kept because the job is not identical. Also DoL has not defined "how equal" the application must be to qualify to keep the PD.

Thus we need a law to allow keeping the PD even if the job description has changed.

Also it would be good to allow people to file PERM without withdrawing their Labor app. However, this might flood PERM, because too many people might do that.

My current estimate is that BEC will process my application within about 12 months, if their 18 month estimate is right. But it would take 6 months of recruitment effort plus overhead to do PERM -- maybe or 9 months total, and then two months waiting for PERM -- total 11 months. Saving 1 month. But the PERM queue could grow too.

If I trust BECs on their estimate it is not worth the hassel of PERM, but should I trust someone who's estimates have been wrong two or three times before?

What is also needed is an "insurance policy" if BECs do not deliver on their promise of only 18 more months, but it would be hard to get law made on this. For example, after 18 month deadline, the assumption could be that all remaining applications are valid and allowed to proceed UNLESS BEC later demonstrates a fraudulant application. Otherwise people are always in the situation of DoL saying "just another X months". This would also allow BECs after 18 months to change mode into just looking for fraud which should be easier to do than qualifying the case.

There is also an issue of employers not wanting to file PERM, because they know that they have an endentured / captive employee and the BECs are doing their dirty work. So it is important to break this chain.

So in summary law changes:
1) Allow PD to be kept even if employer withdrawns labor, changes description, or refiles with PERM. After some date any labor application unprocessed by BEC would give the immigrant a guarenteed priority date.

2) Consider allowing concurrent PERM filing.

3) If DoL does not meet its own target (which is well behind congress's target), then all outstanding applications are assumed valid and allowed to proceed as if certified, unless the application is later shown to be frivolent or clearly fraudulant. Leaving BECs to just "skim check" for fraud and stupid applications after 18 months.