The labor certification process, also known as Program Electronic Review Management (PERM), is an important step for many foreign nationals seeking an employment-based green card. PERM requires U.S. employers to test the local job market and demonstrate that no qualified American workers are available for the position before sponsoring a foreign national.
You may wonder if you can stay in the U.S. while your PERM application is still pending. Luckily, in most cases, it is possible. As long as you maintain valid nonimmigrant status, you can stay in the United States throughout the Department of Labor’s PERM status check process.
Maintaining Status While PERM is Pending
Provided you have a valid nonimmigrant status, you are generally permitted to remain in the U.S. while your PERM application is pending review. Some of the nonimmigrant visas that allow this include:
- H-1B skilled worker visa – The H-1B is commonly used by PERM applicants. You may stay in H-1B status beyond the 6-year maximum if your PERM or I-140 petition remains pending.
- L-1 intracompany transfer visa – The L-1 lets specialized knowledge workers and managers work for a U.S. office of their foreign employer. No minimum education is required.
- F-1 student visa – F-1 students can participate in practical training related to their field before and after finishing their degree.
- J-1 exchange visitor visa – Research scholars, professors, and other J-1 visitors may qualify for PERM sponsorship.
- O-1 extraordinary ability visa – The O-1 suits individuals with extraordinary talents in sciences, arts, education, business, or athletics.
- TN professional visa – Citizens of Canada and Mexico in many professions can easily obtain TN status.
If you maintain your underlying status and meet all requirements, you can stay in the U.S. while the Department of Labor reviews your PERM application. Be sure to keep close track of status expiration dates and plan any extensions or changes well in advance.
PERM Status Check Options if Current Status Is Expiring
Some foreign nationals encounter an issue because their present nonimmigrant status will expire before PERM approval. For instance, your H-1B maximum of 6 years may end while awaiting PERM labor certification. In such cases, you have a few options:
Switch to Another Nonimmigrant Status
One choice is to change to another nonimmigrant status that permits you to remain in the U.S. longer. For example, you could switch from H-1B to O-1 if you possess extraordinary abilities. Or you could change from F-1 to H-1B after completing your studies. Consult your immigration attorney about viable options.
Extend Your Current Status
If applicable, you may be able to file for an extension to your current nonimmigrant status. Certain statuses, such as H-1B, do allow extensions past the initial maximum period if PERM or I-140 remains pending.
Depart the U.S. and Consular Process Immigrant Visa
If you cannot extend your status and no other viable option exists, you may be required to leave. Instead of trying to adjust your status from within the U.S., you can then complete consular processing for your employment-based green card at a U.S. consulate within your home country.
Travel Considerations While PERM Is Pending
Generally, you can travel internationally while your PERM application is pending if you have a valid visa stamp and can maintain your status upon re-entry. However, some precautions are recommended:
- Carry PERM paperwork when traveling – Having PERM documents when re-entering the U.S. can explain international travel amid the green card process.
- Get H-1B travel endorsement – For added security when traveling on H-1B status, obtain a travel endorsement on your H-1B visa at a U.S. consulate abroad.
- Understand status violations – Spending prolonged time outside the U.S. can jeopardize your underlying status and disrupt PERM. Discuss travel plans with your attorney.
- Check visa expiration – To re-enter the U.S., your visa stamp must be valid. Verify the expiration date before traveling.
With proper documentation and careful planning, international travel while PERM is pending can be accomplished smoothly.
Maintaining Lawful Status
You must maintain lawful immigration status while your PERM application is pending. Violations can trigger 3/10-year “unlawful presence” bars and prevent U.S. re-entry if you depart. What to avoid:
- Letting status expire – Always file extensions well before expiration. Overstays accrue unlawful presence.
- Working without authorization – Only work within your status scope. Unauthorized work is a violation.
- Remaining in the U.S. after the program ends – For instance, F-1 students must depart within 60 days after graduation.
Not following your specific nonimmigrant status terms can quickly lead to violations. Stay in close contact with your immigration attorney to ensure you maintain lawful status.
Next Steps After PERM Approval
Once the Department of Labor approves your PERM labor certification application, your employer can proceed to filing Form I-140 (immigrant petition) with U.S. Citizenship and Immigration Services (USCIS).
After I-140 approval, you may be able to file your adjustment of status application if your priority date is current. Remember, the approved PERM certification alone does not grant any form of lawful immigration status. You must carefully maintain your underlying nonimmigrant status throughout the process until your adjustment of status or consular immigrant visa processing is approved.
Consult Pride Immigration for Guidance on Your PERM Case
Navigating the PERM labor certification process can be complex, but understanding whether you can stay in the United States while your application is still being processed is a priority. With careful planning and compliance, most foreign nationals can maintain their underlying nonimmigrant status throughout the Department of Labor’s PERM status check process.
If you are an employment-based green card applicant whose PERM is pending, the experienced legal professionals at Pride Immigration are here to help.
We have guided thousands of clients through successful labor certifications over our years of practice. Contact us today at (703) 594-4040 or online to schedule your initial consultation and ensure your PERM case is handled efficiently and effectively.
Beeraj Patel, Esq.
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