PERM (Program Electronic Review Management) labor certification is a process that employers must go through in order to hire a foreign immigrant worker on a permanent basis. It is the first step for a foreign national to obtain a green card. The PERM Labor Certificate processing time has widely varied over time and even today depends on a number of factors including how it is submitted. At its best, the PERM processing time in 2020 can take around six months from the time it was filed if certain conditions are met.
IMPORTANT UPDATE: There is a significant advancement of Priority Dates in EB-3 India category in October 2020 VISA BULLETIN. If you are considering downgrading your petition from EB-2 to EB-3, read THIS ARTICLE.
PERM Processing Time 2020
There are two different United States government agencies in charge of most employment-based green card applications for foreign professionals: the Department of Labor (DOL) and the United States Citizenship and Immigration Services (USCIS). Before an employer can apply for a green card from the USCIS on behalf of a foreign national, he or she must have gotten an approved DOL Labor Certification.
To get a firm understanding of how long you can expect for the PERM processing time, we must first go over what goes into the PERM process. Here are the basic steps:
- Your employer must define the duties and minimum requirements for the position. This should involve giving a detailed explanation of the required experience, education, and skills to perform the duties.
- Your employer must first file a prevailing wage request to determine how much you, the beneficiary, should be paid based on the job location and economic environment.
- Your employer must then go through an extensive recruitment process. This involves posting multiple advertisements in a variety of locations and interviewing potential U.S. workers who apply.
- Your employer needs to file the ETA-9089 form to apply for the PERM.
Here is a breakdown of the processing times for each step.
PERM Processing Time: Prevailing Wage
It is usually a good idea to wait until you have obtained the prevailing wage determination from the DOL before beginning the next step in the PERM process. This processing time varies considerably depending on how many requests are being made and for which area.
There have been times where the prevailing wage determination has taken over two months to arrive when other times it merely takes a few weeks. It is important to plan accordingly.
PERM Processing Time: Recruitment
This step, while not the longest, is definitely the most involved. The PERM recruitment exercise requires your employer to post a job order, place ads in newspapers, and also put ads in other places like college campuses, online, or on the radio. The job order needs to run for at least 30 days, then you must wait 30 more days to give people the opportunity to respond to the ad.
So 60 days is the minimum amount of time that this part of the process will take. You also need to take into account the amount of time it will take for interviews and follow-up interviews if any are necessary.
PERM Processing Time: Application
Once the recruitment process is completed, your employer can then file the ETA-9089 PERM application.
The PERM processing time is shortest if the online submission is not audited by the Department of Labor (DOL). In this scenario, a decision is typically met within six months of filing.
When an employer files a PERM, they should receive a verification email which includes a sponsorship questionnaire. If the employer fails to respond to the email within a week, the DOL will then attempt to contact the employer for phone verification.
Verification by phone can also seriously delay the PERM processing time, and the DOL will only make three attempts to reach the sponsor. The DOL also maintains PERM stats and a PERM tracker about current cases that can help you get a picture of how long it will take your case if you file within that time period.
PERM Labor Processing Time with an Audit
Sometimes the DOL will choose to take a closer look at an application with an audit. If so, the overall processing time can significantly increase. These audits come in two varieties: random audits and targeted audits.
Random audits are just that: random. The DOL uses these to help make sure that as few people as possible are able to take advantage of the system. Because these selections are entirely random, there is no way to prepare for or anticipate these kinds of audits.
However, there are a few factors that can make a targeted PERM labor audit more likely. For instance, targeted audits can be triggered if:
- the job requires less than a Bachelor’s degree
- the beneficiary owns stock in the company
- the position is related to trade
- the beneficiary is a relative of the employer
- the beneficiary does not seem qualified for the position
- applications involve certain predetermined public schools
- a degree is required without work experience, and if the employer acknowledges a recent layoff in the application.
Currently, audits are generally issued within six months of filing. If your application is audited, you will be sent a letter which can take about two to three weeks to arrive, and you have thirty days to respond to the audit.
Once the DOL receives the audit response, the audits are completed in the order that they are received. It can take up to nine months from the audit date to reach a decision. So the PERM processing time can increase to a year and a half should your employer receive an audit.
However, it is important to note that requests that are audited aren’t automatically rejected. Even if the process is audited and it takes a long time before you see a decision, you may still be approved.
Supervised Recruitment PERM Processing Time
In some circumstances, the Department of Labor may decide that an employer requires additional recruitment measures that are directly supervised. This is done to ensure that a company is using adequate recruitment measures to find and hire qualified U.S. workers before opening the position to immigrants or foreign nationals.
When an employer is notified that their case has been designated for supervised recruitment, they have thirty days to send an advertorial draft based on the DOL’s stipulations. Then, the DOL may take anywhere between a couple of weeks to a few months to review and approve the advertisement. During the time before approval, they may also require more information about the position.
Once the content of the advertisement is approved, the employer only has 15 days to publish the ad on media forms that are also determined by the DOL. The department will then have an open sixty-day recruitment period, in which they will send the employer any applicants.
After that, the employer must submit a report that records the recruitment process within 30 days. The DOL takes a minimum of 30 days to process the report and reach a final decision. Unfortunately, there are no standardized time frames for PERM processing in supervised recruitment. Instead, it’s important to keep in touch with the DOL and follow up frequently.
According to the DOL, on average, it takes approximately 180 days to process a “clean application” undergoing supervised recruitment. The DOL defines a clean application as a PERM application that does not require additional clarification or information from the employer. This suggests that, if your application isn’t considered clean, more information may be requested, which will automatically extend the time.
As stated by the DOL, one of the reasons that could cause the process to take longer than 180 days is if the employer requests extension of time or the evaluating officer in charge requires additional time to review documentation. This is why it is very important to always avoid red flags that could trigger an audit review, especially supervised recruitment in your PERM application filing. One of the biggest factors that often triggers supervised recruitment requests from the DOL is when an employer has failed to respond appropriately to the audit notice or has given an unsatisfactory audit response.
How to Expedite PERM Processing Time
The most effective way of expediting your PERM application is to file your petition appropriately to avoid receiving an audit notice. Throughout the PERM green card application process, the only stage that allows premium processing is the I-140. For every other stage, you will have to wait for the usual processing time, with each stage possibly taking several months.
According to the Society for Human Resources Management, 1 out of every 3 green card PERM applications is subjected to audit review. And with an increasing rate of green card PERM filings recently, the competition can only increase. This requires working with an immigration attorney with an expansive knowledge of PERM Labor Certification to help you prepare your application to improve your chances of receiving a direct approval notice.
PERM Frequently Asked Questions (FAQs)
Here are some questions that we often get in our office regarding the PERM Labor Certification.
Q. What is the difference between the PERM and an LCA?
The Labor Condition Application (LCA) is often confused with the PERM due to the fact that they are both associated with the Department of Labor. However, they are entirely different. The LCA is for H-1B visas and simply requires the employer to make four attestations to ensure that working conditions for those currently employed.
As you know, the PERM, on the other hand, is only for certain employment-based green cards.
Q. How much does the PERM cost?
Fortunately, there is no filing fee for the ETA 9089. However, your employer will likely encounter costs associated with posting advertisements for the position throughout the recruitment process.
Q. Is there any way to get around the PERM?
There are only a few situations in which you would not need to have your employer obtain a PERM on your behalf. All three categories of the EB-1 green card do not require the PERM. Additionally, if you qualify for the EB-2 but would like to avoid the PERM requirement, you will need to apply for a National Interest Waiver, which would require you to demonstrate that the U.S. would benefit more from waiving the PERM requirement than it would be enforcing it.
Q. How are the days in the PERM timeline counted?
When the recruitment process is in effect, you will need to keep the job order posted for 30 days. The day that the job order is posted is not counted. However, the day afterward is counted as the first day. Then the last day will be counted as the 30th. This method applies to all time-sensitive events in the PERM process.
Q. What are the Consequences of Not Replying to PERM Audit Notice?
Whenever an audit review is issued by the DOL, it is compulsory for the employer to respond within the stipulated time. The DOL states that failure to respond within any given time frame throughout the audit process will result in a denial of the application. An employer, agent, or attorney could also face suspension from the labor certification program for up to three years, especially if a pattern is noticed.
Q. Can an Employer Withdraw a PERM Application Undergoing Audit Review?
An employer can withdraw a PERM application undergoing an audit review provided the request is granted by the Office of Foreign Labor Certification (OFLC) or Atlanta National Processing Center (ANPC). This will not, however, save the employer from responding to the already issued audit. Also, requesting an application withdrawal after the issuance of an audit has its consequences.
Q. What are the Consequences of Requesting for Withdrawal of PERM Application Undergoing Review?
If an employer withdraws a PERM application undergoing an audit and refiles another application for the same foreign employee, the newly filed application may be subjected to supervised recruitment. Additionally, if the OFLC/ANPC deems fit, all other future applications by the employer for any foreign employee or job opportunity may also be subjected to supervised recruitment for a certain period of time.
Q. Do All Employment-Based Green Cards Require a PERM Labor Certification?
No, not all U.S. employment-based green cards require PERM processing. There are various green card categories for employment-based immigrants including the EB-1 for priority workers, EB-2 for those with advanced degrees and exceptional abilities, and EB-3 for professionals, skilled workers, and other categories of workers. Out of these three, the EB-2 and EB-3 generally require PERM processing.
The EB-1 does not require PERM labor certification, as it can be self-sponsored by a foreign national without a U.S. based employer. Another permanent visa that doesn’t require PERM processing is the EB-2 National Interest Waiver (NIW). Each of these categories has a long list of eligibility criteria as well as specified qualified professions and level of skills. The EB-1 and EB-2, for instance, are the fastest green card to process but have more stringent criteria than other types.
Q. For How Long Does an Approved PERM Labor Certification Valid?
A PERM labor certification will remain valid for up to 180 days after its approval. You must file your I-140 while the certification is still valid because any I-140 submitted with an expired PERM certification will be rejected by the USCIS.
Q. Does a Part-Time Job Qualify for Green Card PERM Application?
No. An employer can only file a PERM labor certification application on behalf of a full-time, permanent worker. If you are currently working on a part-time status for an employer who is willing to sponsor your green card, the employer will need to first offer you a permanent position that meets any of the employment-based green card requirements.