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Reapplying while PERM application is still pending

New York, NY |

I submitted my PERM as EB3, awaiting my current date in the next couple of years. I am getting promoted in a couple of months, which would make me eligible for EB2. Can I resubmit my PERM in the new category, even though my first PERM was approved?

Attorney Answers 4

Posted

Talk about this with the EMPLOYER'S immigration attorney who prepared and filed the PERM. Experience gained whole working for petitioning cannot be used for labor certification purposes! I just don't see how you suddenly qualify for EB-2 just because you got promoted. You simply do not. You either had the necessary on the job experience BEFORE starting to work for this employer or you didn't. To qualify for EB-2 you can use the (I assume 5 years) experience gained with your current employer and have another employer apply for an EB-2 PERM on your behalf. Since PERM is a job offer for the future., you do not need to be working for the petitioning employer at the time of application.

Behar Intl. Counsel 619.234.5962 Kindly be advised that the answer above is only general in nature cannot be construed as legal advice, given that not enough facts are known. It is your responsibility to retain a lawyer to analyze the facts specific to your particular situation in order to give you specific advice. Specific answers will require cognizance of all pertinent facts about your case. Any answers offered on Avvo are of a general nature only, and are not meant to create an attorney-client relationship.

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Posted

I don't need to switch employers to count additional years of experience, as long as the job I do is different. I am aware I can't count years of experience gained in the same position, but you are wrong to suggest the only way one can add additional years of experience in order to qualify for EB 2 is to change employers.

Giacomo Jacques Behar

Giacomo Jacques Behar

Posted

Yes. The logic is very simple: if you think you already had the qualifications for the EB-2 then why didn't the employer file for the EB-2 from the get go? Again, one does not suddenly qualify for an EB-2 position because one got promoted to a higher, more responsible position. I wish. But that's not how the law works in the PERM field. You are obviously confused, you should be having these conversations with your employer and his immigration lawyer. Best wishes.

Asker

Posted

I will only qualify for EB2 once I am promoted to my new position. My responsibilities would be more than 50% different from my current position and will allow me to recapture the years of experience I gained at my current position (i.e. 6). At the time my application was submitted, I could only recapture 3. People in my position pay attention to the process (as you can imagine, it is quite important and personal) and are not as confused as you seem to think.

F. J. Capriotti III

F. J. Capriotti III

Posted

I totally support Mr. Behar in that: 1. Increased responsibilities do not necessarily make a job substantially different from a 'lesser' one ... which is required to try claiming on-the-job experience. 2. You need to talk to the lawyer that will be putting his/her signature on the papers ... se if he/she agrees with your interpretation of the law.

Posted

YOU didn't submit anything .... the employer that probably also 'owns' the H visa did the petitioning ... and paid all the expenses.

With that understood, Mr. Behar is completely correct ... you have given us no reason to believe that you qualified for EB-2 ... BEFORE you were hired and before your EMPLOYER's PERM was approved.

You need to talk to the immigration attorney that did the PERM papers.

PROFESSOR OF IMMIGRATION LAW for over 10 years -- franco@capriotti.com -- www.capriotti.com -- This blog posting is offered for informational purposes only. It does not constitute an attorney-client relationship. Also, keep in mind that this is an INTERNET BLOG. You should not rely on anything you read here to make decisions which impact on your life. Meet with an attorney, via Skype, or in person, to obtain competent personal and professional guidance.

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Posted

My question is a general one. Can the process be restarted while a PERM is pending.

Asker

Posted

"You didn't submit anything", "You haven't persuaded us...??"....If you are going to be hostile and standoffish, why do you bother being on this forum? This is a friendly place.

F. J. Capriotti III

F. J. Capriotti III

Posted

I had no hostility in my statement ... which is a fact ... only the employer can sign and submit the papers. Far too many employees think that the papers are 'theirs' ... which they are not. The PERM, I-140 and H papers are the property of the employer, and the employer alone.. As to whether or not the employer can re-start PERM papers for one of his/her employees ... sure ... if they qualified for EB-2 BEFORE they were hired, they can cancel the EB-3 and re-file. As to why I'm here, my 36 years of experience, having answered over 13,000 questions and the fact that I'm the 3rd highest rated immigration lawyer on this forum speaks for itself. Have a nice day.

Asker

Posted

Sure.

Posted

I agree with my colleagues.

The answer provided here is general in nature and does not take into account other factors that may need to be reviewed for a more precise answer. You should consult with an immigration attorney before taking any action. The answer here is not intended to create an attorney-client relationship.

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Posted

As you may already know, your employer's filing of a PERM is a future job offer. In answer to your question, "can an employer file a PERM while there is another PERM pending for the same individual?" the answer is yes. As long as the 2nd PERM is for a completely different position, with different requirements. The challenge then becomes, how does the same individual qualify for such different requirements?

Your employer will have to evaluate whether this new position is significantly different, how different the requirements are, and finally, whether or not you qualify for these new requirements. Generally you may not use experience from the same employer, unless the future job offer is 50% different from your current position.

I hope that is helpful for you.

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