1. Labor certification applications can be restarted at any time.
A reader asks:
I was just informed today that the labor market test failed, so the PERM process will need to restart. I’ll talk to the lawyer later for more details. What are the common reasons for failing the labor market test? If I need to restart, do I have to wait 6 to 12 months? I’ve been at this company since graduating from university, and previously relocated to Canada for a year before returning to the U.S. this year, so the work experience used for the PERM comes from my time at the Canadian office.
Could the failed labor market test be related to that work experience? Or could it be related to the job location? For example, are there differences between the San Francisco Bay Area and New York in terms of passing the labor market test? I’m considering moving to New York next year. If the PERM location is New York, would it be easier to get approved?
Alan Lee, Esq. answers,
I am sorry to hear that your labor certification market test failed. Common reasons are typographical errors (the PERM process is pretty strict on errors on the forms); the recruitment may not have been done correctly; there may have been able, willing, qualified, and available US workers that the employer was not able to screen out for valid job related reasons; the applicant’s qualifications may not have matched what was required on the labor certification application, etc. Generally speaking, a labor certification application can be begun again immediately and you generally do not have to wait 6 months or more to begin a new labor certification. If the labor certification requirements were only matched by you in the same company’s Canadian operation, such could be a reason for having a problem with the Department of Labor as experience gained in the same company should be in a position which is substantially different from the position being offered. On the question of San Francisco or New York, the question may be whether there are more qualified candidates who would be interested in a job like yours in San Francisco or New York. That goes to advertising the position and the company screening the candidates. If the position is remote, the test would be national rather than in Just the local market.
2. The H-1B extension petition can only be filed within six months of its expiration date.
A reader asks:
I checked the Department of Labor website, and the average PERM wait time is 17 months, so it’s unlikely I’ll get it within 12 months. I have two questions:
- Based on my situation, can I apply for a 1-year H-1B extension before it expires? If so, when is the earliest I can apply?
- Can recapture time be filed separately, or must it be submitted along with the H-1B extension?
Can I file a new H-1B extension before May 2026? I was outside the U.S. for almost two months during my H-1B six-year period, so those two months should push my H-1B expiry date further. My H-1B expires in May 2026, and my PERM was filed in May 2025 (PD). Although my PERM was filed within 365 days before my H-1B maxes out, it was only by one day. I thought I could apply for a one-year extension in May 2026 just because the PERM was filed 365 days before. But when I reread the AC21 rule, it seems I might not be eligible until 365 days after the PERM filing date, which would be May 2026. If that’s true, I am worried I might fall out of status. What should I do?
Alan Lee, Esq. answers,
Based on your situation, you can apply for a one-year H-1B extension before it expires. The beginning of the requested time must be after the labor certification application has gone 365 days. The H-1B extension petition can only be filed within six months of its expiration date. You can also file to recapture time separately, but that would have to be in the form of an H-1B extension petition.
3. EB-1A and EB-1B can be submitted simultaneously if the contents of one do not contradict the other
A reader asks:
I have prepared all the materials and drafted my I-140 petition letter for EB-1A. I originally wanted to go through my employer’s EB-1B petition, as it seemed more stable. However, my company’s law firm is moving too slowly. Should I file EB-1A on my own first? Can EB-1A and EB-1B be filed simultaneously?
Alan Lee, Esq. answers,
Both EB-1A and EB-1B can be filed simultaneously, but the contents of one cannot contradict the other. If you wish to file the EB-1A petition on your own, please ensure that it will be consistent with the claims made on the EB-1B petition.