On December 27, 2004, the U.S. Department of Labor finally published the long awaited regulations for implementing the new PERM labor certification program. This program will ultimately replace the current system in which employers can sponsor for foreign workers green cards. The PERM system doesn’t go into effect until March 27, 2005. PERM has more restrictions than the current system. However, it does seem to promise (although not guarantee) a faster processing time (60 days) than the current system. As with any new system, it is uncertain how smooth the transition to PERM will be.
Pending applications for a labor certification can be withdrawn and “converted” to PERM subject to specific requirements of the new PERM program. The regulations permit employers to withdraw old pending applications and file new revised ones for processing under the new PERM system and still retain the priority dates of the original applications. However, this can only be done where no recruitment has occurred in the original application. As a result, cases that were filed under Reduction in Recruitment would not qualify. In order to retain the old priority date the new application must occur no later than 210 days from the date of the withdrawal. It is possible to withdraw an RIR case and refile under PERM but the original priority date would be lost. You should discuss this matter with your attorney to make an informed decision about whether or not to withdraw and refile. There may be consequences to individuals who require the old priority date in order to support a 7th year or later extensions of H-1B status.
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