Legal Question in Immigration Law in New Jersey

My Husband is working in TOP Investment bank as a consultant. They are now ready to hire him as fulltime employee. However his visa is going to expire by July 2011 so he has to file for green card - LCA by June 2010 to get 1 year of extension. But the company lawyer denied to file GC saying they might get delay to file LCA.

Please let us know is 3 months time enough to start GC process, get all documents and file LCA before 30 June 2010.

Why this big I-Bnaks are denying for GC process.

Asked on 4/09/10, 10:51 am

2 Answers from Attorneys

Luba Smal Smal Immigration Law Office

This is always up to the employer to start a green card process for an employee. If they want to hire him for a full-time permanent position, then they start with PERM as a first step. LCA is not involved into this immigration process. I don't understand your post and what the company's lawyer said. You should consult another lawyer for a consultation and advice, if necessary, and will have to deal with the employer through their lawyer.

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Answered on 4/14/10, 11:11 am

Ajay Arora Ajay K. Arora, Attorney-at-Law, P.C.


The green card process through the process of filing an application for alien employment certification (also known as PERM) is quite complex:

You are confusing PERM with the Labor Condition Application (LCA), which is part of H1B petition, and is relatively simple.

It typically takes 4 to 5 months for PERM to be properly prepared and filed. Indeed, a preliminary step (the prevailing wage determination by the Department of Labor) is currently taking close to 2 months before recruitment can even begin. Many of the recruitment steps for U.S. workers must be for a period of at least 30 days, and a minimum of 30 days must be completed after all recruitment is completed prior to filing of PERM in order to convince the Department of Labor that there was good-faith recruitment for U.S. workers.

Having said that, the bank should still prepare and file the PERM application, as it is entirely possible for PERM to be certified in about 8 or 9 months after filing, and then the immigrant petition (I-140) can be filed through premium processing, resulting in approval within 2 weeks of filing. If the I-140 is approved prior to completion of six years in H1B status, then H1B status can be extended beyond six years based on I-140 approval even though PERM has been pending for less than one year prior to completion of six years in H1B status.

There may be other options as well. If your husband has traveled abroad while in H1B status, he can "recapture" the time spent abroad and thus extend his H1B that way. Also, there is no requirement that your husband has to be present in the U.S. Thus, if PERM is pending for, say, only 10 months when your husband reaches six years in H1B status, then he can travel abroad for 2 months. His company can then file an H1B petition for him again based on PERM pending for at least one year.

In the end, however, your husband is totally reliant on his employer willing to proceed with the filing of PERM, as it is not possible to self-petition.

Your have the option of following up with our law firm if you have questions by sending an email to [email protected] or calling 212-268-3580


Ajay K. Arora, Esq.

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Answered on 4/14/10, 11:17 am

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