If you are a foreign worker who needs to obtain permanent residence in the United States through employment, this will likely require your employer to get PERM labor certification as part of the process. The permanent labor certification program (PERM) ensures there are no qualified U.S. workers available before the employer can hire and sponsor you for a green card.
Unfortunately, obtaining PERM approval often takes well over a year. Thankfully, there is an important rule regarding PERM that can help extend your H-1B status while you wait: the 1-year rule.
The 1-Year Rule for Pending PERM Cases
If your employer’s PERM labor certification application has been pending with the Department of Labor for 365 days or more, you may qualify for 1-year extensions of your H-1B status while waiting.
What Exactly Does This Rule Allow?
Under this 1-year rule, you can extend your H-1B nonimmigrant status in 1-year increments while your PERM application remains pending.
For example, if your PERM has been pending for two years, you may be able to get two separate 1-year extensions of your H-1B status. These 1-year extensions can be continually renewed annually until a final decision is made on your PERM application.
Why Was This Rule Created?
The PERM labor certification process can easily take 18 months to 3 years, sometimes even longer if audited. The 1-year rule for pending PERM applications allows you, as a foreign worker, to remain in valid H-1B nonimmigrant status during this lengthy period of uncertainty and delay.
It prevents disruption to your authorized employment and income in the United States while your PERM application moves through processing.
Who Qualifies for 1-Year H-1B Extensions?
To qualify for the 1-year extension of H-1B status under this rule, two key requirements must be met:
- You must currently hold valid H-1B nonimmigrant status. Your H-1B status must be active and in a valid period at the time your employer requests the extension.
- Your employer’s PERM labor certification application must have been pending for at least 365 consecutive days. This means 365 full days must have passed since your employer first filed the PERM application.
Step-by-Step Process for Obtaining 1-Year Extensions
To obtain 1-year extensions of H-1B status under the pending PERM 1-year rule, your employer must take the following steps:
- File a new H-1B petition on your behalf with USCIS to request an extension of your stay in H-1B status for 1 year.
- Cite the specific 1-year rule for pending PERM labor certification applications as the legal basis for the H-1B extension request.
- Include clear evidence that your PERM application has, in fact, been pending for over 365 days, such as a copy of the PERM filing receipt notice dated more than 1 year ago.
If approved, your extension petition will grant you an additional 1-year extension of your H-1B nonimmigrant status while you continue waiting for your PERM labor certification to be approved.
The 1-Year Rule for Approved PERM Cases
The 1-year rule does not only apply to pending PERM applications. It also covers cases where your employer’s PERM application has already been approved by the Department of Labor.
What Does This Rule Allow?
If your PERM labor certification has been approved and your employer originally filed it more than 365 days ago, you may qualify for 1-year extensions of H-1B status while you wait for your Immigrant Petition (Form I-140) and final green card approval.
For example, if your PERM was approved 2 years after it was filed, you would be eligible for two separate 1-year extensions of your H-1B status under this rule. You can continue extending in 1-year increments based on the approved PERM certification.
Why Is This Rule Important and Necessary?
Even after the PERM labor certification is approved, your green card process still has multiple steps remaining. Your employer must still file the I-140 Immigrant Petition, and you have to wait many months or years for an employment-based green card number to become available, depending on your country of birth.
Unfortunately, this entire process after PERM approval often takes 3+ years to finally receive your green card. The 1-year rule for approved PERM applications allows you to remain in valid H-1B nonimmigrant status and continue working uninterrupted for the same employer during these lengthy delays.
What Are the Requirements to Qualify for 1-Year Extensions?
In order to qualify for the 1-year extension of H-1B status under this rule after your PERM has been approved, two key requirements must be met:
- Your PERM labor certification must remain valid and unexpired. PERM applications are approved for 180 days and remain valid for that timeframe.
- Your employer’s PERM application must have been filed at least 365 days prior to filing the H-1B extension petition. This shows the job offer remains current.
Step-by-Step Guide to Obtaining 1-Year Extensions After PERM Approval
To obtain 1-year H-1B extensions under the approved PERM 1-year rule, your employer must take the following steps:
- File a new H-1B petition on your behalf requesting to extend your stay.
- Include a copy of your PERM labor certification and make sure it is still valid and unexpired.
- Provide clear evidence that your PERM was filed more than 365 days ago, such as a copy of the acceptance receipt notice.
- Request that your H-1B status be extended for 1 additional year.
If the extension petition is approved, you will gain another year of H-1B status, allowing you to continue working for the sponsoring employer.
Comparison of the 1-Year Rule vs. the 3-Year Rule
There is another similar H-1B extension rule that allows 3-year extensions instead of just for one year. The key differences compared to the 1-year PERM rule are:
- The 1-year rule only requires a pending PERM for 365+ days.
- The 3-year rule has higher requirements – you need an approved I-140 immigrant petition.
Overall, the 1-year rule for pending and approved PERM cases has a lower eligibility threshold. But the 3-year extension rule allows you to get longer H-1B extensions per request. Understanding both will provide more options if you end up stuck in the green card backlog.
Work with Pride Immigration to Make the Most of the 1-Year Rule
The PERM labor certification process is often riddled with uncertainty and delays lasting years. However, the 1-year rule provides essential protections if your PERM gets held up.
With extensive experience in employment-based immigration, the Pride Immigration team can help you develop an optimal strategy around these important 1-year extension provisions. Contact Pride Immigration today to ensure you have an expert on your side leveraging every option available under the PERM rules and regulations.
Beeraj Patel, Esq.
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