Alternatives to PERM

by Youngwook ("Christian") Park and Naomi Y. Kim

The "bread and butter" of employment-based (EB) immigrant visa cases can differ for each practitioner, but familiarity with non-PERM based EB paths can greatly enhance a practitioner's toolbox when advising clients with special qualities. For example, some firms tend to cater to individual foreign nationals seeking green cards, while others generate revenue by serving as a vendor to corporate clients. These characteristics can limit the exposure to the types of EB cases for a practitioner, but alternatives to the basic labor certification (LC) process can offer valuable tools in advising the client to navigate the EB methods of petitioning for permanent residency.

The basic LC process offers a path to permanent residency, but alternatives to the basic LC process present several strategic advantages. First, these alternatives eliminate the processing time a case is pending with the U.S. Department of Labor (DOL) and may lead to a faster green card. Practitioners note that DOL's LC adjudications consume 4-6 months. With audits or supervised recruitment, the LC process can often take more than a year. For foreign beneficiaries from backlogged countries, the EB1's may reduce years of waiting for the priority date to become current.

Second, these alternatives can be helpful for those cases involving a foreign beneficiary that does not want to involve the employer. Several self-petitioned methods, such as the EB1 Extraordinary Ability (EB1A) or EB2 National Interest Waiver (NIW), allow foreign beneficiaries to pursue EB permanent residency without being tied down to a particular employer's job offer. Self-petitions may be particularly helpful in this high-tech, high mobility era, when employees and employers experience frequently see changes in staffing and employment.

Third, avoiding the basic LC process may also enable concurrent filing of the adjustment of status (AOS) and employment authorization document (EAD). For those foreign nationals that are nearing the end of H/L, and where H extensions beyond the normal 6 years do not apply, concurrent filing may lead to uninterrupted work while the green card process is pending.

Fourth, foreign beneficiaries with highly technical skills with U.S. degree equivalency issues or lacking formal degrees may have to resort to the EB3 category under the PERM. However, alternatives to the PERM can allow for EB1's or even if EB2's based on NIW, Schedule A, Group II, or upgrading EB3's to EB2's based on Exceptional Ability. Notably, this method can be a game-changer for clients.

Finally, given the downturn in the U.S. economy, some practitioners report that DOL adjudications seem to be tougher. Moreover, some occupations are less likely to survive the testing of the U.S. labor market--leaving the employer with expenses but without any PERM applications filed for the employee. For these reasons, avoiding the PERM can greatly benefit the client and offer additional tools for the immigration practitioner.

From a case preparation standpoint, EB1A and EB2NIW tend to be similar with one exception that EB2NIW will have to meet the standards of the national interest argument under the NYSDOT case. In the academic or research context, the beneficiary may be eligible for EB1B as well. To note, EB1B must be petitioned by a qualifying employer while EB1A and EB2NIW are eligible for either employer- or self-petitions. Additionally, while EB1A and EB1B permit premium processing, EB2NIW does not. Notably, EB2NIW has a higher likelihood of success. This is perhaps a result of the Kazarian decision that allows the USCIS to deny cases even after meeting the requisite number of factors under EB1A or EB1B.

The EB1C is similar to an L-1A with one notable difference: the managerial or executive duties must have been held both abroad and for the offered position. Unlike, other EB1's, there is no premium processing. EB1C remains an attractive option for qualifying employers and employees as there are no backlogs.

The authors wish to give particular emphasis to the standards of EB2. EB2 can be met with either an advanced degree (or its equivalent, i.e., a bachelor's degree and five years of progressive post-degree experience) or exceptional ability (meeting 3of the 6 factors) [Editor's Note: this number has been corrected, 10/21]. This understanding can greatly expand the toolset for immigration practitioners. With a foreign beneficiary that seems to fall short of the EB1 or NIW standard, an immigration strategy can be devised to allow for Schedule A, Group II (20 CFR 656.19). Schedule A, Group II, is a rarely used but valuable method that can allow for either EB2 or EB3 with a minimal testing of the U.S. labor market. Schedule A can be particularly useful for getting into EB2 for the following situations: the NIW is unlikely to succeed due to the national interest argument; cases involving degree equivalency issues; beneficiary lacks a formal degree; or the labor market under the basic LC process is likely to fail.

Finally, there is the art of upgrading EB3 to EB2 based on an approved labor certification. Strictly speaking, this does not avoid the LC process. However, for those cases that involve degree equivalency issues or lack of a formal degree, a PERM application may be designed to meet EB2 under Exceptional Ability. If all else fails, the practitioner can then rely on EB3 at the I-140 stage.

Practitioners should note that this article does not attempt to cover all EB methods, such as those for college/university teachers, physicians, investors, religious workers, or special immigrants. In conclusion, the strategic alternatives to PERM can be employed to provide comprehensive immigration counseling.

About The Authors

Youngwook ("Christian") Park is an Associate in the Dallas office of Berry Appleman & Leiden LLP. Mr. Park’s work focuses on business immigration matters involving the recruitment, hiring, transfer, and retention of international workers. Prior to joining BAL, Mr. Park worked on immigration matters for a wide range of industries including healthcare, engineering, business, and information technology. Mr. Park is fluent in Korean.

Naomi Y. Kim is a graduate of Wellesley College and Fordham Law School.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.