May 22 2020
As we enter a third month of the COVID-19 pandemic, many employers are wondering what the future may hold for PERM recruitment. With a potential recession looming over us, does that mean no more PERM applications, or even supervised recruitment after PERM applications have been submitted?
The rules for the PERM applications require employers to carefully test the labor market to ensure no qualified, able and willing US workers were overlooked for an advertised position. When the economy is booming, workers can be much more selective in their pick of jobs. On the flip side, when the economy falters, workers tend to be more willing to accept imperfect positions.
1. PERM Application Filings May Be Delayed
A PERM application can only be filed if an employer can demonstrate that it tested the labor market (by running a series of advertisements) and was unable to find any qualified US workers for the position.
During an economic downturn, employers who post job advertisements should expect to see a rise in applicants if the role is a popular position. Qualified, willing and able US workers will ultimately obviate the need to permanently hire a foreign worker. Employers should therefore carefully review its hiring needs before embarking on PERM processes; including reviewing and considering any previously laid off employees who might be qualified for an open position.
2. We Could We See an Increase in Audit Requests for PERM Applications
Recent headlines are predicting dire economic outlook:
- White House Economist: Unemployment could hit 20% by June
- Jobless claims may reach 30 million in 6 weeks as Covid-19 layoffs continue to soar
- Coronavirus Layoffs: Lyft, Boeing Latest to Cut Workers Amid Pandemic
- The coronavirus recession is unlike any economic downturn in U.S. history
The Department of Labor will be taking stock of these economic conditions and reviewing PERM applications accordingly. Therefore, employers should be prepared to qualify their recruitment protocols if the Department of Labor requests to audit those protocols.
3. We Could See More Supervised Recruitment of PERM Applications
If we end up heading straight into a recession, the Department of Labor (DOL) may increase its request for supervised recruitment of a PERM application; which is basically a fancy way of asking an employer to conduct a second labor market test under the direct supervision of the DOL. The DOL will issue instructions for the employer to run a new set of ads. The DOL will review and approve the ad text and determine where and when the ad will run. For example, DOL has been known to instruct an employer to post the ad on 10 different job search websites, where it will most certainly be viewed by job seekers who are looking for employment.
Further, the ads will instruct applicants to send their resumes directly to DOL (usually through an unidentified P.O. Box or mailbox) and not to the employer. DOL will then review the resumes and forward them to the employer for evaluation. At the end of the day, if there are qualified U.S. worker applicants, the PERM application will not be approved.
In summary, navigating the PERM process has never been and will never be a straightforward process. In times of economic constraint, it is more important than ever for employers to understand their options, their responsibilities to weigh the pros and cons of proceeding with a PERM application, and to be ready to defend their recruitment protocols. There is no need to fear the PERM process when working with an experienced immigration attorney to help determine the proper strategy. The attorneys at Accel Visa Attorneys have experience with supervised recruitment and can properly advise you. Contact our experts to help develop a PERM strategy and guide you through the process.
May 11 2020
Almost every week, someone asks me, “Is my application EB-2 or EB-3?” For most employment-based applicants born in India or China, one of the most important outcomes is to have their applications qualify for EB-2.
EB-2 and EB-3 are the two categories for PERM-based green card processes. EB-2 means an applicant is being sponsored for a role which requires an advanced degree (Master’s degree or higher) or a Bachelor’s degree followed by 5 years of work experience. This is the “higher” of the two classifications and traditionally provides a faster path to a green card than the EB-3 classification – at least for applicants born in India and China. This is why most applicants from these two countries have always pushed for EB-2.
However, for applicants born in China, an EB-3 application may not be so bad as it can sometimes be faster than EB-2. Here is a look at the State Department’s Visa Bulletin going back 2 years:
China EB-2 Cut-Off Date (Final Action) China EB-3 Cut-Off Date (Final Action) May 2020 10/01/2015 05/15/2016 April 2020 09/01/2015 04/15/2016 March 2020 08/01/2016 03/01/2017 February 2020 07/15/2015 01/01/2016 January 2020 07/01/2015 12/01/2015 December 2019 06/22/2015 11/01/2015 November 2019 03/15/2015 11/01/2015 October 2019 01/01/2015 11/01/2015 September 2019 01/01/2017 01/01/2014 August 2019 01/01/2017 07/01/2016 July 2019 11/01/2016 01/01/2016 June 2019 11/01/2016 01/01/2016 May 2019 05/15/2016 08/22/2015 April 2019 04/01/2016 08/01/2015 March 2019 01/01/2016 07/08/2015 February 2019 10/01/2015 07/01/2015 January 2019 08/01/2015 06/08/2015 December 2018 07/01/2015 06/08/2015 November 2018 05/15/2015 06/01/2015 October 2018 04/01/2015 06/01/2015 September 2018 01/01/2013 11/01/2014 August 2018 03/01/2015 07/01/2014 July 2018 01/01/2015 01/01/2013 June 2018 09/01/2014 06/01/2015 May 2018 09/01/2014 06/01/2015
As you can see, over the last 2 years, about half the time EB-3 had a later cut-off than EB-2. Since the cut-off date determines when an applicant can file a green card application (either an I-485 application for adjustment of status with USCIS or an immigrant visa application through Dept. of State), at certain times it can be advantageous to be in the EB-3 classification. (With the Visa Bulletin, the earlier the cut-off date, the longer the wait to file a green card application.)
The beauty of it is that applicants whose PERM applications qualify for EB-2 can choose to downgrade to EB-3 in order to file an I-485 application with USCIS. Even if an applicant already has an approved PERM and an EB-2 I-140 approval, he or she can always file another I-140 petition and request the EB-3 classification in order to proceed with the I-485 filing.
In October 2019, we received an approved PERM for an employee who was born in China. Although the PERM qualified for EB-2, we gave the employee the choice of filing an EB-3 I-140 petition and also a concurrent I-485 application for adjustment of status (AOS) based on a priority date from a previous I-140 approval. As you know, there are many advantages of having a filed AOS, including an EAD and AC21 job portability where an applicant may be able to change jobs after the I-140 is approved and the AOS has been pending for 180 days. This particular employee politely declined and wanted to wait for the EB-2 date to become current. As of the end of April 2020 this employee is still waiting. In putting together this chart of the Visa Bulletin dates for China, I noticed that if this employee had filed his AOS back in October 2019, based on USCIS processing times and immigrant visa number availability over the past 4-5 months, he probably would have received his green card by now.
So the moral of the story is – don’t be afraid to process in the EB-3 category. It may be faster than EB-2 at times (for applicants born in China) and you know what they say about a bird in the hand…. From our perspective, the actual green card looks the same regardless of whether it was issued based on EB-2 or EB-3.
To speak to an attorney about the PERM process or any other employment-based green card matters, please contact us here. Our experienced team can advise you on the quickest way to process your case.