Why Timing Is Critical During the PERM PERM labor certification process
The PERM labor certification process is an important part of getting an employment-based green card.
The permanent labor certification (or PERM) process is a critical component in applying for an employment-based green card. The PERM process consists of several steps, including job recruitment, obtaining a prevailing wage determination, conducting a rigorous recruitment process to demonstrate the lack of qualified U.S. workers, and, most importantly, filing a labor certification application with the U.S. Department of Labor (DOL). Employers must obtain PERM approval from the DOL before filing Form I-140 (Immigrant Petition for Alien Worker), which allows eligible foreign workers to seek lawful permanent residence status in the United States.
When it comes to the PERM procedure, one of the most common challenges that US companies have is selecting when to file the PERM certification and initiate the green card application. In this article, we’ll discuss why timing is so important during the PERM process and how US businesses should be proactive in commencing this stage for their overseas employees:
When to Start the PERM Process
As a general rule, employers in the United States who sponsor employees for green cards should be aware of any circumstances influencing the PERM process timetable and plan ahead of time for a good outcome for both the employee and the firm. Waiting too long to begin the PERM procedure can cause employees’ work permits to expire, putting them in a difficult situation in which they may be forced to leave the United States until their immigration status is resolved. This not only causes unnecessary stress and uncertainty for foreign workers and their families, but it also has detrimental consequences for the company’s day-to-day operations.
Traditionally, the immigration community has advised employees to begin the PERM process at least two years before their work visa’s maximum permissible duration (known as the “max out date”). However, given recent processing delays and other potential challenges, employers may want to start the process earlier to offer a much-needed buffer. To handle the hurdles faced by current immigration backlogs, many firms are already starting the PERM procedure approximately 3.5 years before an employee’s visa expires.
Perm Timing Risks
Many US firms want to know when they can begin the PERM process without jeopardizing their employee’s immigration status. Although every situation is unique, there are some broad criteria that might help you comprehend PERM timing risks:
NOTE FOR H-1B VISA HOLDERS:
Filing a PERM application sooner may also allow organizations to take advantage of a clause that allows H-1B visa holders to extend their visa beyond the six-year maximum. To qualify for this extension, the employee’s PERM or I-140 petition must have been pending for at least 365 days. This means that a PERM application can be submitted before the employee’s fifth year of H-1B status. Learn more about the H-1B sixth-year cap here.
Understanding the PERM Processing Times
PERM processing times might vary significantly based on the company and the specifics of the application. The PERM application is also a multi-step process with different processing timeframes between stages. Overall, PERM processing times have grown in recent years due to a higher volume of applications, a larger backlog of ongoing cases, and more scrutiny by the DOL.
The average processing period for a PERM application is presently 6-12 months. The DOL website provides a more detailed analysis of where your processing time may fall within this current range.
Given the enormous backlog of applications and processing issues, businesses must file the PERM as soon as possible to avoid further delays in the green card process.
Considering a Potential DOL Audit.
Another consideration when navigating the PERM procedure is the possibility of a DOL PERM audit. The PERM audit process is a detailed evaluation undertaken by the DOL to ensure that a US business meets the PERM program’s standards. This investigation entails a thorough review of all documents and information submitted to ensure their accuracy and conformity with program requirements.
Audits might occur at random or in response to specific criteria. When an audit is launched, the DOL will request more documents and information from the employer, usually with a time constraint for response. PERM audits have increased in recent years as the DOL places a greater emphasis on compliance. Responding to an audit can add months to the PERM processing period, so keep this in mind as you navigate the PERM process.
FaraTaran has created a useful tutorial on how to effectively pass a PERM audit here.
Saving on Premium Processing Costs
Filing a PERM application early and initiating the employment green card procedure sooner rather than later may also save the firm money on filing fees. During the second stage of the employment green card procedure, while filing Form I-140, many companies choose Premium Processing to avoid any interruptions in status or work permission for the employee. However, filing the PERM application in a timely manner can eliminate this time constraint during the second stage and allow for standard Form I-140 processing, saving the business $2805.
