Labor Certification, technically called “PERM” (Program Electronic Review Management) is a procedure frequently used by Employers to sponsor foreign workers as part of the Green Card process. Once the PERM is approved, the immigration case is filed with the USCIS to commence the immigration process.

In years past, the PERM process was often very quick, with approvals received in as little as a few days up to a few months. However, several years ago, the Dept of Labor (DOL) began to drastically slow down processing of applications, resulting in processing delays which often exceeded a year.

In recent months, however, the DOL has begun processing PERM applications and issuing decisions and approvals at a very rapid pace. This change in processing appears to be a concerted DOL initiative to reduce processing times to a reasonable pace as originally intended by the 2005 PERM regulations. It is hoped that this new initiative will result in processing times being reduced to 180 days or less in 2010 and beyond.

Immigration Tip: H-1B Visas can be extended past the six-year limit as long as a Labor Certification is filed 365 days or more before the sixth year of the Visa expires.

H-1B (Professional) Work Visas can be valid for up to six years allowing a foreign worker to be employed by a sponsoring U.S. employer during that period. Once an H-1B worker has reached the end of the sixth year, eligibility for the H-1B visa begins again once the foreign national has left the U.S. and remained outside for at least one year.

Immigration regulations do allow foreign nationals to extend H-1B Work Visas past the sixth year limit; however, there is often quite a bit of confusion regarding this issue. As a consequence, otherwise eligible H-1B workers often lose the opportunity to extend H-1B visas past six years, due to misunderstandings about procedures and filing deadlines. Generally, in order to be eligible to extend an H-1B past the sixth year limit, the employer must file a Labor Certification (PERM) at least 365 days before the sixth year expires. Once the Labor Certification is filed on or before this deadline, as long as it has not been denied and remains pending, the H-1B can then be extended past the six years, in one year increments. When the Labor Certification and I-140 Immigrant Visa petition are approved, the H-1B Visa can be extended for a full three year period.

Labor Certifications filed after the 365 day deadline can still result in eligibility for an H-1B Visa extension, as long as the Labor Certification is approved and the I-140 Immigrant Visa is filed and approved by the USCIS before the sixth year expires. If approved after the sixth year has expired, the H-1B worker must leave the U.S. or change to another visa status to remain legal, and then reapply for a new H-1B visa.

It is very important to know that a Labor Certification can only be filed after several months of pre-filing requirements, including “recruitment” undertaken by the sponsoring employer. Therefore, if the employer waits until the last moment to file the Labor Certification the deadline may be passed.

Strategically, it is critical to begin the Labor Certification process as early as possible, due to the long immigrant visa waiting lines, often spanning many years for employment Green Cards. The date the Labor Certification is filed, called a “priority date”, gives the immigrant worker a fixed place in the long waiting line for residency. Therefore, the earlier an immigrant gets into the line, the less time there is to wait until an Immigrant Visa is available for Green Card.

Finally, before any Labor Certification is filed, it is essential that both the immigrant and sponsoring employer company are aware of the requirements. There is nothing worse than losing time and substantial legal fees on a Labor Certification case, when either the immigrant or the company is not technically qualified. This is especially tragic when a foreign worker who is not in legal status is sponsored by a company, only to find out later that even if the Labor Certification is approved, in many cases he or she is not eligible to obtain a Green Card under current employment-based immigration regulations.

*This column is published for the purposes of providing a general understanding of immigration legal issues, as a public service and is not intended to establish an attorney client relationship. Consideration given to any immigration issue is not intended in any way to substitute for individual legal consultation with a licensed attorney. Readers should understand that this column and the foregoing illustrations are subject to different interpretations in each particular immigration case that may arise and no one reading this column should attempt to apply his own particular situation to the principles described herein. Readers with specific legal immigration issues should consult their attorney. If you have an immigration issue and do not know an attorney, you may call your state’s attorney Bar Association.