For most international professionals, the PERM labor certification process is a critical aspect of obtaining permanent resident status (also known as a green card). As employers, it is essential to understand the various factors that impact the timeline of this process and plan accordingly to ensure a successful outcome.
One pitfall that employers often are caught off guard by is exactly when to initiate the green card process. Starting the process too late can cause an employee to run out of their work visa validity period, causing a stressful situation where employees must work internationally before they can return back to the U.S. in valid status.
Conventional wisdom in the immigration community has previously been to initiate the PERM process at least 2 years before a visa holding employee's max out date (the maximum allowable time allowed under a specific visa category). In this post, we'll focus on why in this age of immigration backlogs, it's now prudent to start the PERM process approximately 3.5 years before an employee runs out of time on their visa, and why this longer timeline provides the necessary buffer to account for recent changes in processing times and other potential complications.
Longer Prevailing Wage Processing Times:
The PERM process is a multi-stage endeavor with long processing times at various milestones. First, the prevailing wage request (“PWR”) processing time is the time it takes for the Department of Labor (DOL) to determine the minimum wage an employer must pay the foreign worker. This step is crucial in the PERM process and has been taking longer in recent years due to a backlog of applications and increased scrutiny. While processing times are highly variable, we have seen periods in the recent past where PWR processing has taken approximately 11 months (vs. 6 months previously). Official processing times can be found on the DOL website.
Longer PERM Processing Times:
Secondly, in addition to longer prevailing wage processing times, the PERM process itself has also been taking longer to complete in recent years. While PERM processing times fluctuate like PWR processing times, today you should budget approximately 9 months (vs. 6 months previously). This is due to increased scrutiny by the DOL and an increased number of applications.
Potential DOL Audit:
In recent years, the DOL has increased its focus on enforcement and employer compliance. PERM audits are one such enforcement tool in the DOL’s toolkit. A DOL PERM audit is caused by various reasons including:
- Random selection by the DOL's computer system
- Evidence of fraud or misrepresentation
- Evidence of noncompliance with immigration laws and regulations
- High rate of prevailing wage disputes
- High rate of requests for additional evidence (RFEs)
- Targeted industry or employer audit initiative
- Evidence of systemic discrimination or other prohibited practices.
The DOL may initiate an audit to ensure that the employer has followed all the necessary steps and requirements in the PERM process. Responding to an audit and additional processing time can add approximately 4-6 months to the PERM process.
Regular Processing of the I-140:
The I-140 is the second step in the permanent resident visa process, and requires approval from the U.S. Citizenship and Immigration Services (USCIS). While Premium Processing is currently available for the I-140 process, employers that start the PERM process early enough can save the $2,500 Premium Processing fee by using regular processing.
The chart below summarizes the changes above and shows today’s (vs. previous) timeline assumptions.
Following a more prudent timeline should also allow companies to take advantage of a provision that allows H-1B holders to extend their visa beyond their max out date in one year increments. In order to qualify, the employee’s PERM or I-140 application has to be pending for at least 365 days. In practice, this means that a PERM application should be filed before the employee reaches their 5th year in H-1B status. Note that the 1-year extension is only available for individuals in H-1B status, and not in another status (e.g. L-1).
In conclusion, starting the PERM process approximately 3.5 years before an international worker's max out date will maximize the likelihood of a successful outcome. This timeline provides a buffer for longer prevailing wage processing times, longer PERM processing times, potential DOL audits, and regular processing of the I-140.