Why Timing Is Critical During the PERM Process

The PERM labor certification process is a crucial aspect of obtaining an employment-based green card

Employer filling out work visa paperwork

One of the most important steps in applying for an employment-based green card is the permanent labor certification (or PERM) process. The PERM process involves a series of steps, including job recruitment, obtaining a prevailing wage determination, conducting a rigorous recruitment process to demonstrate the unavailability of qualified U.S. workers, and most importantly, filing a labor certification application with the U.S. Department of Labor (DOL). A PERM approval from the DOL is a prerequisite for employers to file Form I-140 (Immigrant Petition for Alien Worker), paving the way for eligible foreign workers to pursue lawful permanent resident status in the U.S.

When it comes to the PERM process, one common challenge U.S. employers face is determining the right time to file the PERM certification and begin the green card application process. In this blog, we’ll go over why timing is critical during the PERM process and how U.S. employers can be proactive in initiating this step for their foreign employees:

When to Initiate the PERM Process

As a general rule of thumb, U.S. employers sponsoring employees for green cards should be well-informed about any factors affecting the PERM process timeline and should plan proactively for a successful outcome for both the employee and the company. Waiting too long to start the PERM process can lead to employees’ work visas expiring, putting them in a difficult situation where they may have to leave the U.S. until their immigration status is resolved. This not only puts unnecessary strain and uncertainty on foreign workers and their families, but has negative implications for the company’s day-to-day operations.

Traditionally, the advice within the immigration community has been to begin the PERM process at least 2 years before an employee’s work visa reaches its maximum allowable duration (known as the “max out date”). However, given recent delays in processing times and other potential issues, employers may consider starting the process even earlier to provide a much-needed buffer. Many employers are now beginning the PERM process around 3.5 years before an employee’s visa expiration in order to navigate the challenges posed by current immigration backlogs.

Perm Timing Risks

Many U.S. employers want to know: what is the latest date we can start the PERM process and not endanger an employee’s immigration status? Although each case is unique, there are some general guidelines that can help you understand PERM timing risks:

NOTE FOR H-1B VISA HOLDERS: Filing a PERM application sooner can also enable companies to leverage a provision that permits H-1B visa holders to extend their visa beyond the six-year limit. To be eligible 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 reaches their fifth year in H-1B status. Read more about the H-1B sixth-year limit here.

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Understanding PERM Processing Times

PERM processing times can vary widely depending on the employer and specific details of the application. The PERM application is also a multi-step process with varying processing times at each stage. Overall, PERM processing times have increased in recent years due to a greater number of applications, a growing backlog of pending cases, and greater scrutiny by the DOL.

The average processing time for a PERM application is currently around 6-12 months. For a more thorough breakdown for where your processing time may fall in this current range, check the DOL website.

Given the significant backlog of applications and processing challenges, it’s imperative that employers file the PERM as soon as possible to avoid any unnecessary delays in the green card process.

Factoring in a Potential DOL Audit

Another factor to consider when navigating the PERM process is a potential PERM audit by the DOL. The PERM audit process is a comprehensive review conducted by the DOL to verify a U.S. employer’s adherence to the PERM program’s requirements. This examination involves a close scrutiny of all the documents and information submitted to confirm their accuracy and compliance with program guidelines.

Audits can occur randomly or be triggered by certain criteria. When an audit is initiated, the DOL will request additional documentation and information from the employer, typically with a specific timeframe for response. In recent years, PERM audits have spiked due to the DOL’s increased emphasis on compliance. Responding to an audit can add several months to the PERM processing time, so it’s important to keep this in mind when navigating the PERM process.

Boundless put together a helpful guide on how to successfully pass a PERM audit here.

Saving on Premium Processing Costs

Filing a PERM application early and starting the employment green card process sooner rather than later may help the employer save on filing costs as well. During the second stage in the employment green card process, filing Form I-140, many employers opt for Premium Processing to prevent any lapses in status or work authorization for the employee. However, filing the PERM application in a timely manner can eliminate this time crunch during the second stage and allow for regular Form I-140 processing, saving the employer $2805 in Premium Processing fees.

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