Employers are now experiencing thirteen-month processing times for PERM applications (Form ETA 9089), which is the first stage of most employer-sponsored green card processes. Is it because the Department of Labor (DOL) has not been able to catch up from the pandemic backlog, or is it something else? Either way, employers need to consider the processing times and plan accordingly until processing times improve.
According to data published by the DOL, 158,987 PERM applications were filed in FY2023, as compared to the 113,014 filed in FY2019. This increase could be due to several factors, including an increase in demand for immigrant visas and lack of alternative pathways to permanent residency, the change in administration in 2020, or the shifting attitudes toward retaining foreign talent, particularly in STEM and AI occupations.
Regardless of the cause, these longer-than-normal processing times are important for employers to keep in mind when hiring foreign talent. The timelines and strategies for filing an employer-sponsored green card should be discussed and considered at the time a foreign national is hired to ensure the foreign national is able to maintain work authorization and avoid any detrimental lapses in status that can affect the business.
Background on PERM
The PERM Labor Certification (PERM) process is a prerequisite to filing certain employment-based applications for lawful permanent residency in the United States. The PERM process is highly regulated by the Department of Labor (DOL) and requires employers to take additional steps in the interest of protecting any able, willing, qualified, and available U.S. workers.
Timing is one of the most important considerations when commencing the PERM process. There are several DOL regulations issuing strict timelines and deadlines as to when certain steps must begin or be completed by. Failing to comply with these timelines and deadlines could be fatal to the employee’s PERM process.
The PERM process consists of several steps. Once strategy is determined and a job description is developed, the employer must file a request for a prevailing wage determination from the DOL. This wage determination sets the minimum wage that the employer must pay the foreign worker by the time they become a lawful permanent resident—to ensure that employers are not undercutting the wages and working conditions of U.S. workers when sponsoring workers for green cards.
Right now, the DOL is taking 6-9 months to issue these determinations. Employers have no mechanism to expedite these determinations. They cannot pay for “premium processing,” and they cannot request expedite processing for extraordinary circumstances. Employers—and foreign nationals—are at the mercy of the DOL’s unpredictable processing times.
Once the prevailing wage determination is issued, the employer must conduct a labor market test. For this, employers must recruit for the PERM role by placing advertisements in many different media and evaluate if the U.S. applicants meet the minimum requirements for the role. Certain job postings must be published for at least 30 days, followed by a 30-day “quiet period,” when the employer may not file the PERM Application.
As a result, the PERM process can take up to a year to complete. Then, it may remain pending at the DOL for 13 months—with no way to accelerate that time frame. With increasing PERM application processing times, employers should reevaluate strategies and policies determining when they start the PERM process to save costs and ensure seamless work authorization for their employees.
Timing Considerations for PERM Applications in 2024
Beyond the timelines proscribed by the DOL, employers also must consider the employee’s temporary work visa status, as there may be additional timing considerations to take into account. Specifically, employees holding H or L visa status may be subject to limits of how much time they may remain or work in those statuses.
The American Competitiveness in the 21st Century Act (AC21) provides some relief from this concern, allowing H-1B extensions in one-year increments beyond the six-year maximum, when a PERM application is filed at least one year prior to the H-1B holder’s six-year maximum date.
Once the PERM is certified and an I-140 is approved, employers can extend H-1B holder’s status in three-year increments until the foreign national secures a green card. Depending on when a PERM application is filed, an employer may end up filing several H-1B extensions for one employee in the span of three years. Those costs add up. Indeed, these financial considerations bolster the notion that when it comes to PERM, the earlier the process starts, the better.
Where the employee is not on H-1B status, there are additional issues to consider when determining when to start the PERM process. Employees in L-1A or L-1B status do not have the benefit of further extensions under AC21, so ensuring the PERM is started earlier is vital to ensuring that any potential lapses in status are either mitigated or eliminated entirely.
For example, L-1B holders are only eligible for five years of status. To extend them beyond that five-year minimum, employers should submit L-1B holders into the H-1B Cap lottery, and try to change status them to H-1B status. If they can switch into H-1B status, they will be eligible for one more year to round out their six-year H-1B maximum.
The lower amount of allowed time in L-1B status is important to keep in mind when discussing when to begin the PERM process for someone on L-1B. Employers must also keep in mind that the L-1B employee is only entitled to that five years and cannot extend beyond that regardless of when the PERM application is filed. This means that, if the employee is not selected in the H-1B CAP lottery, other strategies will need to be discussed and explored to ensure there is no lapse in status. This could mean switching the employee to an L-1A status to get them two additional years if they are in a managerial position or exploring other non-immigrant visa options depending on their background. This is another key reason to start the PERM process early—to make contingency plans.
How the FLAG System can improve PERM application processing times
While it is unlikely that PERM application processing times will decrease anytime soon, there is hope that the implementation of the FLAG system for ETA 9089 filing in June 2023 will lead to the more efficient review of PERM applications and decrease processing times significantly. Submitting PERM applications through the same system in which the prevailing wage request is filed, and where the determination remains stored, may allow for a more seamless evaluation of the PERM application as a whole. However, it is likely that there will not be significant improvements to the processing times until the DOL is able to progress through the backlog of cases filed in the legacy DOL system. According to the DOL’s website, there are roughly 216 ETA 9089s that were filed between February 2023 and May 2023 remaining for review. In sum, employers should begin to see decreasing processing times for PERM applications later this year. However, until then, employers should continue to be mindful of when they are beginning the PERM process for their employees to ensure they are not putting their employees – as well as their business – at risk.
The material contained in this article does not constitute direct legal advice and is for informational purposes only. An attorney-client relationship is not presumed or intended by receipt or review of this presentation. The information provided should never replace informed counsel when specific immigration-related guidance is needed.
Reprinted with permission from the May 9, 2024 edition of The Legal Intelligencer© 2024 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. ALMReprints.com – 877-257-3382 – reprints@alm.com.
