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A Comprehensive Guide to the PERM process – Timeline & Timing considerations

By May 2, 2023PERM
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Employers must strictly follow the timelines for the PERM process for obtaining US permanent residency, including Prevailing Wage Determination (PWD), recruitment process, and PERM application approval. The process can take months (and sometimes years), and processing times vary. After completion, foreign workers can apply for adjustment of status or consular processing if an immigrant visa is available in their green card category. Working with an immigration attorney is recommended to help successfully navigate the process.

PERM Timeline

It is important to note that processing times for the PERM process can vary depending on a number of factors, including the complexity of the case, the volume of applications being processed, and changes in government processing times. The PERM process is a multi-step process and can take several months (or longer) to complete. Below is a general timeline of the PERM process and some timing considerations to keep in mind:

Prevailing Wage Determination (PWD) Timeline

The U.S. Department of Labor (DOL) will issue a prevailing wage determination that specifies the minimum wage an employer must pay for a particular position in a specific geographic area. Employers must obtain a prevailing wage determination from the DOL before filing a PERM application. As of March 2023, PWD issuance was quite delayed, with the DOL taking about 9 – 12 months to issue PWDs. The PWD will be issued with a validity period. If the employer started recruitment before the PWD was issued, they must file the PERM case before the PWD validity expires. If the employer waits to start recruitment until after receiving the PWD, they must start recruitment before the PWD validity period expires.

The U.S. Labor Market Test Timeline

As part of the labor market test, the employer must conduct a recruitment process to determine if there are any willing, qualified and available U.S. workers for the position. The recruitment process involves placing various types of job advertisements, for example, posting the job opportunity with the state workforce agency for 30 days and placing an advertisement in the newspaper of general circulation in the place where the job is located for two consecutive Sundays. The employer must also post a notice of filing at the place of employment to alert employees about the opportunity. If the job is for a professional position, meaning a position requiring at least a Bachelor’s degree, the employer must also choose three additional recruitment steps from a list of ten options. Often the advertisements will all be placed together during a 30-day period and then the employer must wait another 30 days before filing the Labor Certification.

Prior to filing the Labor Certification, the employer will prepare a recruitment report detailing the results of the recruitment process. This report must include information about the number of U.S. workers who applied for the job, the number of U.S. workers who were interviewed, and the reasons why they were not selected for the job. If no qualified U.S. workers are available for the position, the employer can proceed with filing the Labor Certification (ETA 9089) with the U.S. Department of Labor, The Labor Certification includes information about the job, the qualifications required for the job, the employer, and the foreign worker.

The regular processing time for certification of ETA 9089 varies but is generally around 6 months or longer. However, if the application is audited or selected for supervised recruitment, processing times can extend to 12 to 18 months or longer.

Filing with USCIS, the I-140 Petition Timeline

Once Labor Certification is approved by the DOL, the employer can file an Immigrant Petition for Alien Worker (Form I-140) with U.S. Citizenship and Immigration Services (USCIS). The processing times for I-140 petitions can vary depending on various factors, such as the volume of applications received by the U.S. Citizenship and Immigration Services (USCIS) and any requests for additional evidence. USCIS provides estimated processing times for I-140 petitions on their website, which can give an idea of how long the process may take. The estimated processing time for regular I-140 petitions is currently taking over a year. However, there is an option to pay an additional fee of $2500 for premium processing, which means USCIS will issue a decision (approval, denial, Request for Evidence or Notice of Intent to Deny) within 15 calendar days.

Adjustment of Status or Consular Processing Timeline

After the I-140 is approved, the foreign worker can either apply for an adjustment of status if they are already in the U.S. in a valid status or go through consular processing if they are outside of the U.S. If the green card category is current, the foreign worker may receive the green card in a matter of months, although it could take a year or slightly longer, depending on current processing times at USCIS or the relevant U.S. Consulate. However, if the foreign worker was born in India or China it may take longer to receive the green card as there is currently a significant backlog in green card availability in the EB-2 and EB-3 categories for workers who were born in India or China.

The PERM process can take several months (or longer) to complete, and employers should plan accordingly. It is essential to allow enough time for obtaining the prevailing wage, completing the recruitment process and getting a response on the Labor Certification. The PERM process can be impacted by changes in immigration policies or government processing times, so it is essential to stay up to date on any changes that could affect the process. Employers should also be aware of the potential for audits and requests for additional information from the DOL. These requests can significantly delay the process. Overall, the PERM process can be complex and time-consuming, but with careful planning and attention to timing considerations, employers can successfully navigate the process and obtain permanent residency for their foreign workers. Employers and foreign workers should consult with an experienced immigration attorney for guidance on the PERM process and to ensure that all necessary steps are taken to avoid delays and potential issues.

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