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Most foreign nationals who wish to obtain permanent resident (green card) status through employment are required to have their employers file labor certification applications with the Department of Labor. These applications require employers to engage in recruitment efforts in order to satisfy the Labor Department that the foreign national employee is not taking a job from a qualified, interested and available U.S. worker. This has traditionally been an arduous process that took multiple years to complete. An elite group of foreign nationals immigrating through employment are able to avoid this process. This group includes: � Aliens with “extraordinary ability” which places them at the top of their fields; � Aliens with “exceptional ability” who are performing work in the U. S. national interest; � “Outstanding” professors and researchers; and � Multinational managers and executives. Foreign nationals who qualify in one of these categories have traditionally opted for filing in one of these categories and therefore avoiding the necessity of the labor certification application. However, effective March 28, the Labor Department promulgated its long-awaited PERM regulations. These new regulations substantially revamp the labor-certification process. Among the major changes are electronic filing and an anticipated adjudication time of two months or less. With this new substantially expedited labor certification process, counsel to employers and foreign nationals who may qualify under one of the labor certification-exempt categories are faced with the need to re-evaluate whether the new labor certification procedure tips the balance in favor of filing a labor certification application rather than undergoing the document-intensive process of proving the foreign national’s extraordinary ability or work in the national interest. The position of this author is that, for most of the best and brightest, avoiding the labor certification process is still the avenue of choice. There are several advantages of the labor certification-exempt categories: � No job offer or employer sponsorship is required for extraordinary ability and national interest waiver applications. � The expenses of the recruitment process need not be incurred. � There is no requirement of payment of the “prevailing wage.” � The PERM regulations provide for DOL random and targeted audits, which can substantially increase the anticipated processing times. � There is no issue of availability of U.S. workers, which could result in the denial of the labor certification application. � The employee is free to change positions, change employers and change locations of employment, all of which may be restricted with the labor certification application. In addition, although the labor-certification process should be substantially expedited compared to the previous system, the time from hiring until permanent residence is achieved is still longer with the labor certification application process. With the PERM process, the time from preparation to filing is likely to be a minimum of three to four months. Even if the Labor Department keeps to the anticipated processing times, and assuming no audit, the foreign national would have an approved labor certification within five to six months after the preparation is commenced. Once the labor-certification application is approved, the remaining steps in the immigration process (employer’s immigrant petition and application for permanent residence) can be filed with U.S. Citizenship and Immigration Services (USCIS). On the other hand, with one of the labor certification-exempt categories, preparation time may be similar; but the immigrant petition and application for permanent residence are filed directly with USCIS, saving both the Labor Department processing time and the risk of audit or denial of the labor certification application. The time saved before filing of the application for permanent residence can be critical in certain cases. The application for permanent residence triggers the ability of the foreign national and the foreign national’s spouse to obtain an employment-authorization document, which permits work without employer sponsorship. It also triggers the ability of the foreign national and his family to obtain travel documents, which allow international travel without visas. It is especially critical if one of the children is approaching age 21 since, in most cases, the age of the child is frozen on the date of filing of the application for permanent residence. This is significant because otherwise, if the child turns 21 before the permanent-residence process is completed, the child loses eligibility to immigrate with the parents. Another very important consideration has arisen in recent months for the first time in many years. This issue is immigrant quotas. By way of explanation, Congress has placed a worldwide and per-country limitation on the number of foreign nationals who can obtain permanent residence in each fiscal year. This limit is further divided into “preference categories” based on the nature of the employment and the education or experience required to perform the position. All of the labor certification-exempt categories are first preference (except national-interest waiver, which is second preference). All of the labor certification cases are third preference (except jobs requiring an advanced degree or a bachelor’s degree plus five years of progressive experience, which are second preference). This is important because, starting in 2005, the third-preference quota has been exhausted. This may mean a multiple-year wait before the approved labor certification beneficiary may apply for permanent residence. At least as of this writing, there is no waiting list in the first or second preference. Of course, this analysis changes significantly if counsel believes that the labor certification application has an excellent chance of success, whereas the extraordinary ability or national-interest waiver petition is highly speculative. This has to be balanced against the many possible post-filing occurrences that could jeopardize the permanent residence case based upon the labor-certification application. These occurrences include loss of job, promotion to a different job, reduction in wages, corporate reorganization and change of location of employment. Without question, the attempt to expedite the labor-certification process is long overdue. For many employers and foreign nationals, the new regulations provide a welcome alternative to the previous, seemingly interminable process. However, those clients who are truly the best and brightest or who otherwise fall into one of the labor certification-exempt categories will, in many and probably most cases, still choose to opt out of the new labor certification procedure. H. Ronald Klasko is the managing partner of Klasko Rulon Stock & Seltzer, a firm devoted exclusively to the practice of immigration and nationality law with offices in Philadelphia and New York. Klasko is a former national president and general counsel of the American Immigration Lawyers Association.

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