Q&A’s published on the World Journal Weekly on June 25, 2023 – 1. The time to begin a labor certification is 2 years prior to the 6-year expiration of H-1B 2. PERM application related skills depends on the employer’s requirement 3. PWD can be used for the same position and multiple people 4. EB-2 and EB-3 can apply at the same time 5. The old and new companies overlap for 1 month, you should answer truthfully

1. The time to begin a labor certification is 2 years prior to the 6-year expiration of H-1B

I am a PhD in Tiankeng major (which is the collective name of Chinese netizens for the four majors of biology, chemistry , environment , and materials ( biochemical and environmental materials ), and I switched to computer field in 2019. In 2019, I won the H-1B lottery and went through several companies. Unfortunately, every time when my PERM was about to be approved or ready to file PERM, I was laid off (twice), and never filed PERM. My current situation is that my company successfully filed the PERM for me in March of this year, but I am not sure whether I will be laid off before the I-140 is approval. Now I want to apply for NIW-EB-2, and my articles were cited 23 times at the journal/conference and had 160 reviews1. My questions are: How do I apply for NIW which can extend my H-1B? My H-1B will be in the fifth year in October 2024. When do I need to get my PERM’s I-140 approval to renew my H-1B? Will it be before October 2024 or October 2025? When I got the approved I-140, I would want to leave the company, but will the company withdraw the I-140 application if I leave? At present, the PERM of all companies, large and small, has basically stopped. what do I do?

Mr. Lee answers,
Whether USCIS will approve your NIW EB-2 application depends upon the officer’s judgment of your qualifications in light of the precedent decision, Matter of Dhanasar, with factors whether your endeavor has both substantial merit and national importance; whether you are well-positioned to advance the endeavor; and if on balance, it would be beneficial to the United States to waive the job offer and thus the permanent labor certification requirement. In order to renew your H-1B past the standard six year limitation, you would either have to have 365 days pass since filing the NIW or labor certification application, or if you are from a country with backlogged quota, have an approved I-140 petition. The time to begin a labor certification if everything goes well is approximately two years prior to the six-year expiration due to the time required to obtain the prevailing wage determination and for the labor certification to pass through the Department of Labor. If you obtain an I- 140 approval, the petitioning organization generally has 180 days to revoke the petition. If such is done within 180 days, the priority date is usually preserved, but the petition is not valid for extending H-1B status past the six-year limit.

2. PERM application related skills depends on the employer’s requirement

I graduated this year, and I am lucky to get an offer as a junior front engineer at the beginning of the year. The company is willing to immediately to get started with PERM EB-2 for me. A few days ago, the lawyer contacted me and gave me a verification of skill. The letter template only lists a few points and says it cannot be changed. However, I feel it is very unreliable. I worry more about it will attract a large number of local people to apply when the job is advertised. Have you tried using this small amount of simple skills, people have successfully passed the PERM labor certification in the end? Would it be better to write more skills?

Mr. Lee answers,
It appears from your fact situation that you have already gone over all of your skills with the attorney and he or she has given you a template of an experience letter based upon what he or she believes are the relevant skills to be required in the labor certification application. Please note that the education, experience, and other skills in an application are based upon what the employer requires and not necessarily what the applicant possesses. For example, an applicant may have 20 different kinds of skills, but the employer only requires three or four of them as relevant to the offered job. The Department of Labor requires the employer to list its minimal requirements for the position. If you believe that the attorney is failing to recognize relevant skills for the position taking the employer’s needs into account, you should contact him or her to explain their relevance and why they should be included as requirements in the PERM application.

3. PWD can be used for the same position and multiple people

I am applying for employment green card under EB-2. My lawyer told me that my job description and background were very similar to another colleague in the company, and suggested to use his prevailing wage determination (PWD) directly, saying that way, I could skip my job posting and could start 9089 form directly. Is it possible to do like this? That means the PWD follows the job instead of the person. If I meet the same job requirement, I can skip the job posting process?

Mr. Lee answers,
Labor certification applications are for individual applicants –that being said, a prevailing wage determination (PWD) can be used for multiple individuals having the same position with the same requirements. In such case, the attorney or other preparer of the application must ensure that the job is the same, the offered wage to the alien is at least at the prevailing wage level, and that the alien’s education, work experience, and any special requirements of the ETA-9141 prevailing wage form are met by all applicants using the prevailing wage determination. If any parts of recruitment pursuant to the prevailing wage determination have been completed, they can usually be used in connection with the ETA 9089 PERM application forms of other individuals. Recruitment is only good for 180 days from the date of PWD issuance where the recruitment was begun prior to the date of issuance, or 180 days from the date of first recruitment if recruitment was begun after the PWD was issued. So you should ensure that your case fits within the parameters of the ETA 9141 and that it is submitted on time in the event that you and the attorney choose to use the already issued PWD for your case.

4. EB-2 and EB-3 can apply at the same time

Currently, I have the I-140 employment-based immigration approval under EB-2, but the priority date is still many years away, and it could take three to five years. Recently EB-3 category’s priority date has moved forward. Is it possible to file an EB-3 I-140, to keep EB-3 and EB-2 at the same time, instead of downgrading? In this case, whichever comes first can be submitted first.  Are there any risks in doing so?

Mr. Lee answers,
It is entirely possible to file another I-140 under EB-3 even if you already have an approved I-140 under the EB-2 preference category. What you are asking is commonly done, and we have done so many times for our Chinese and Indian clients. When the priority date becomes current for one of the categories, you could file for adjustment of status under the petition that has visa availability. We do not see the risk in doing another petition unless the petitioning organization can no longer support the prevailing wage of the labor certification (we assume that this is a labor certification based case).

5. The old and new companies overlap for 1 month, you should answer truthfully

After being laid off, I continued to stay on payroll for three months. During that period, I found a job, and there was a one-month overlap between the last day of the previous employer’s payroll and the first day of the new company. In this case, what date should I put down on the form as the last day of my former employer when the new company applies a green card for me?

Mr. Lee answers,
There is no easy answer to your question. The issue you are likely attempting to address is how to handle the 60 day grace period that H-1B holders are allowed to find another organization and have that organization file a H-1B transfer petition. Did your old company consider the layoff to take effect at the beginning of the 90 days or sometime later? Did your old company send a letter of termination immediately to USCIS or did it do so later? If you are relying upon a statement of prior experience from the old company, what dates will it attest to as your time of employment? Generally, the best policy is honesty taking the above or any other factors into account.