• Option for Employees Mired in the Employment Based Third (EB3) Backlog
  • August 16, 2010
  • Law Firm: Dinsmore Shohl LLP - Cincinnati Office
  • An employer has successfully gained a labor certification application approval from the U.S. Department of Labor ("DOL") and a subsequent Employment Based Third (EB3) I-140 Immigrant Petition approval for a foreign national employee. The employee has filed a permanent resident application, but the application is going nowhere due to the huge quota backlogs in the EB3 category.

    In August 2010, only those foreign nationals with an EB3 priority date of June 2004 or earlier can expect U.S. Citizenship and Immigration Services (CIS) to approve their pending I-485 permanent residence applications (with the wait for persons born in China and India being even longer). The priority date is established when the employer files the labor certification application with DOL.

    A question these employers may ask is whether to begin a new PERM labor certification application that, if approved, will track to the Employment Based Second (EB2) category where the queues or backlogs of earlier-qualified applicants are shorter. The following considerations may help to navigate this issue.

    • Consider Whether a New, Materially Different Job Will Become Available to the Employee in the Future. If the employee remains in the same position that was the subject of the initial labor certification application, then normally initiating an EB2 based PERM case proceeding will not be possible. If the job required less than the threshold required for EB2 classification (which is at least a master's degree or alternatively a bachelor's degree plus five years of progressive post-baccalaureate experience), then a new PERM application based on the same job as before normally would require the same qualifications. Stating a higher level of education and experience for the same job might trigger DOL scrutiny as to whether the new application contains material overstatements or misrepresentations.
    • Determine Whether the Employee Will be Able to Meet the New Skill Set Standards. The employee must be able to prove that prior to the filing of this new (second) PERM case, he or she already met the higher quotient of education and experience required by the EB2 job.
    • Examine the Likely DOL Prevailing Wage. The employer may not proceed with recruitment under a PERM case unless it agrees to pay the prevailing wage at the time when the employee becomes a permanent resident. The higher education and experience requirements for EB2 classification may trigger a higher required wage rate, so the employer should not forge ahead without knowing how DOL will classify the new job for wage purposes.
    • Determine the Impact on the Employer's Immigration Sponsorship Policy. We recommend that every employer that sponsors an employee for permanent resident status have an immigration sponsorship policy in place and that the employer require the employee to sign an immigration sponsorship agreement based upon the policy before agreeing to start the permanent resident process. If the employer's policy does not cover filing a second case, then the employer might consider amending its policy to address what it will do in such situations. At the very least, the employer should require the employee to sign a new agreement BEFORE starting the second permanent resident process. The employer should state that it has agreed to proceed with a second case but may decide in its sole discretion to end such a process at any time for any reason.
    • Retaining the EB3 Priority Date. If, all going well, the employer later secures a PERM approval and files an EB2 I-140 immigrant petition, the employer can request CIS to transplant the earlier EB3 priority date into the EB2 Immigrant Petition.