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1. After the PERM Application Approval, How
Long the I-140 Petition Process Will Likely Take?
After the U.S.
Department of Labor (DOL) approves the PERM Labor Certification
application, the U.S. employer can file an Form I-140 petition with
U.S. Citizenship and Immigration Services (USCIS). The Form I-140
petition should includes the original approved PERM application in
which the U.S. employer and the alien beneficiary worker must sign
it.
The Form I-140 petition should also include the evidence of the U.S.
employer’s ability to pay the alien worker’s
salary, and documents confirming that the alien beneficiary is
qualified for the position, such as a copy of the alien
worker’s educational degrees. The approved PERM Labor
Certification application is only valid for a certain period of time,
therefore the Form I-140 petition must be filed within this validity
period. Otherwise the PERM Labor Certification application will expire,
and the employer must start over again.
Generally, USCIS may take at least four months for I-140 decisions, and
it can take USCIS much longer to adjudicate the Form I-140 petitions.
Also, there is an expediting option available, Form I-140 Premium
Service, for Form I-140 petition. The employer can pay an extra $1000
fee and request premium processing within 15 calendar days of receipt.
A USCIS officer will review the application and determine the
appropriate action which would be an approval. Alternatively, an USCIS
officer could issue a Request for Further Evidence (RFE), or a Notice
of Intent to Deny (NOID). For the case of RFE, USCIS will make a
decision within 15 days of receipt of the response.
2. The
Premium Processing Service of Form I-140 Petition
U.S. Citizenship and Immigration Services
(USCIS) has started the form I-140 petition Premium Processing Service,
which allows U.S. employers to pay a $1,000 Premium Processing fee in
exchange for 15-calendar-day processing of their case.
USCIS accepts the Premium Processing
requests for form I-140 petitions involving one of two employment-based
immigration categories within the employment-based preference. Those
categories are:
1) EB-3
Professionals, i.e. immigrant workers with bachelor degrees who are
members of the professions, and
2) EB-3
Skilled Workers, i.e. immigrant workers capable of performing skilled
labor requiring at least two years of education, training or
experience.
Employers
file for both categories using Form I-140 - Immigrant Petition for
Alien Worker. Premium Processing is not available to “other
workers” in
the EB-3 category for jobs that do not require two years of education,
training or experience.
Under the Premium Processing Service, USCIS
guarantees petitioners that, for a $1,000 processing fee, it will issue
either an approval notice, or where appropriate, a notice of intent to
deny, a Request For Evidence (RFE), or open an investigation for fraud
or misrepresentation, within 15 calendar days of receipt.
3. The
Advantage of the Premium Processing Services for Form I-140 Petition
The launch of
I-140 petition premium processing services, limited to EB-3 cases only
initially, may induce the EB-3 professionals to take advantage of the
premium processing services for a number of reasons:
1) H-1B extension beyond
the six-year limit. The services will be
particularly valuable for those who could not file a H-1B extension
beyond the six-year limit, because they started the labor certification
application after they reached five years in H-1B status.
2) The premium processing of I-140 will help
those who need to change employment after 180 days of I-485 filing.
USCIS allows
portability of I-140 petition after passage of 180 days after filing of
I-485 and the I-140 petition was approved. Launch of the I-140 premium
processing services will help such aliens to achieve the needed change
of employment under AC-21 Act.
3) The premium processing of
I-140 will also assist those aliens who need the retention of their
priority date and transfer to another petition.
Under the current law, the priority date of the employment based
immigrant petition can be retained once the I-140 petition is approved
and can be transferred to another immigrant petition.
4. Date For Filing vs. Final Action Date, the Two-Tiered Visa Bulletin
To provide those who are stuck in immigrant visa quota backlog with the
benefits of a pending adjustment, and to reduce waiting time where
possible, U.S. Department of State’s monthly visa bulletin
provides "Date For Filing" and "Final Action Date"
Previously, the monthly visa bulletin has served to update one date for
each category of permanent residence applicant - the priority date
cutoff. This one date determined whether you were eligible to submit
your permanent residence application, and whether it was expected that
there would be a visa number available, allowing your application to be
approved.
Now, the “Date for Filing” determines whether or not you
can submit the final immigrant visa application, and the “Final
Action Date” indicates whether or not it is expected that an
immigrant visa number will be available.
In many cases, the Date for Filing will be well before the Final Action
Date, meaning that the alien applicants will be eligible to submit an
application for permanent residence well before it is even possible for
the government to approve that application.
Therefore, those stuck in a backlog can get benefits of a pending
adjustment - apply for a combined EAD/AP card, which provides
employment and travel authorization. Immigrants holding an EAD can work
for any U.S. employer, which provides significantly more security and
flexibility than the employer-specific H-1B petitions that serve as the
basis for many immigrant’s employment authorization. For
family-based applicants, the EAD may be their first-ever work
authorization in the U.S., so getting that earlier is a great benefit.
Also, earlier filing of the final application means that
employment-based permanent residence applicants will be eligible for
AC21 portability earlier, meaning they can change employers, under
certain circumstances, without being forced to re-start their permanent
residence application from the beginning.
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