1. Company’s hiring freeze may affect PERM application
A reader asks:
The company is hiring freeze, but there is no layoffs. The departments that need to recruit are referred internally; it means there is no recruitment externally. If this is the case, can I still apply for a green card? Specifically which part will be affected? PWD, AD, or PERM?
Arthur Lee Esq. answers:
If there is a hiring freeze, the part of your application that may be affected is mainly the advertisement and recruitment stage. The PWD will not be affected since that is just a determination of your wage level and position by the Dept of Labor based upon the job description provided by your company. The ETA 9089 (ie PERM) is not affected as it asks a company to disclose whether it has had a layoff in the past 6 months in positions related to the one you will occupy upon obtaining a green card. However, the recruitment phase may be affected because the company will have to perform external recruitment for your position in its test of its labor market before you can be certified under PERM. This includes placing a job order with the state workforce agency, doing an internal posting disclosing that it will offer you a position at a specified wage, posting 2 Sunday newspaper ads in the area of intended employment, and 3 alternate forms of recruitment such as but not limited to website posting, 3rd party posting such as on Indeed or Monster, local newspaper ad, radio/TV ad, or college recruitment assuming that this is a professional position. If the company receives resumes from U.S. workers who seem like they may be qualified for the position, your company will need to contact/interview these candidates. If a candidate is able, willing, qualified and available to take the position, the company will have to offer your position to that qualified/able U.S. worker in its test of the labor market. Therefore, the recruitment phase may be affected and you must discuss the above possibility with your employer and verify that it is willing to do external recruitment on your green card position to test the U.S. labor market during this hiring freeze.
2. To apply for a PERM green card, the employer must be willing to hire full-time employees
A reader asks:
I am currently working as an engineer in a company with a work visa. What is certain now is that the company will no longer recruit full time engineers in the future, but will turn to outsourcing to find contractors. Excuse me, will this affect my PERM application and the advertisement before application?
Arthur Lee Esq. answers:
It depends on the circumstances of your case. First, your employer must understand that if your PERM case is successful, it must hire you as a permanent fulltime employee upon your getting your green card. If your employer is not willing to do that, then there is no basis for your PERM labor certification case. Second, during the recruitment process, your employer must test the labor market and interview all apparently qualified candidates for a fulltime engineering position. At this stage, there must be a willingness on the part of your employer to hire a fulltime engineer. Since your employer is testing the market for your proffered fulltime position, it must be willing to replace you with a qualified and willing U.S. worker who meets the qualifications as a fulltime employee if such a person applies and your employer has no other open position. As a side note, if there is a layoff in the engineering position in the six months prior to filing ETA 9089, your employer would need to notify and consider previously laid off workers in the engineering roles for your PERM position.
3. To track for case processing times
A reader asks:
It has been 3 months since I did fingerprints for my I-485. My application number is in the MSC239019 section. I finished fingerprinting in February, and it has been over 4 months. The case status is still showing “Case Was Updated.” When do I need to check with EMMA to speed up my case process?
Arthur Lee esq. answers:
I-485 processing times vary based upon the type of I-485 you are filing eg. employment-based, family-based, asylum-based, etc., and which local field office is adjudicating your I-485 application. The field office adjudicating your application will typically be your geographically-located local USCIS field office. You can visit the USCIS website page for processing times (https://egov.uscis.gov/processing-times/) and enter your case type (I-485, and specify which type), and your field office, and the website will inform you of the normal processing times for your type of I-485 application. You can also enter the date in which your I-485 application was filed at the bottom of the page. Once you enter that, the webpage will tell you whether your case is being processed normally or if it is outside normal processing times. If it is outside normal processing times, then you may file an eRequest or chat with EMMA to place a service request to inquire about the status of your case.