PERM processing is a permanent labor certification process required for some specific employment-based categories. When an employer wants to hire a foreign national as a worker, they must get certified approval from the Department of Labor’s Employment and Training Administration (DOL). This approval is known as a PERM Labor Certification. After getting approval from the DOL, the employer must file an immigration petition with the United States Citizenship and Immigration Services (USCIS) for the foreign national worker. The most crucial step an employer must take to meet the minimum standards for permanently hiring a foreign national is the PERM labor certification.
There are four main steps in the PERM procedure, which are as follows:
- Step 1 is to create jobs.
For the employee, the employer creates a position. The necessary responsibilities, tasks, job title, and work history are listed in the job description.
- Step 2: Present payment documentation of foreign national
The employer must substantiate their ability to pay the foreign employee in accordance with the DOL’s prevailing wage regulations. A corporation is required to provide supporting paperwork, such as a federal income tax return, annual report, or audited financial statement, to prove that it has continued to be able to pay the foreign national employee’s salary.
- Step 3: Verify employment for the foreign workers
According to Department of Labor (DOL) regulations, sponsors are required to “test the American labor market.” As a result, they must make sure that no qualified and willing citizens of the United States or legal residents of the country are able to carry out the jobs for which only foreigners are being employed as part of the PERM procedure. The sponsoring company must suspend the process and wait six months before retesting the labor market after receiving a qualified and eager U.S. applicant for the position. If not, the employer is ready to submit PERM applications.
- Step 4: File the application.
Experienced professionals with the authority to mark a case as suspect for PERM audit review each case. To confirm that all necessary procedures were followed, a DOL Certification Officer may also request further paperwork. A decision for the petitioner may not be reached for up to 209 days during the process. It is difficult to provide an exact timeline for the audit process given the delays brought on by COVID-19.
The PERM procedure can take about the following amount of time:
- Review of the audit: more than 209 days
- 180 days for PERM prevailing wage determination (another 120 days to review any audits)
- If Form I-140 is not filed with the Perm Certification within six months, it may expire
- During the hiring process, an employer must run advertisements for 30 to 60 days.
The PERM processing time cannot be determined by a single factor. Days are needed to obtain clearance for the PERM process because each step must be carefully considered. To get an approximate number of days, let’s examine each phase and the underlying days necessary for approval in detail:
- Depending on the quantity and location of requests, the processing time for prevailing wage determination may vary. The DOL may require up to 180 days to approve the determination of the prevailing wage. The time it takes to determine the prevailing wage varies; sometimes it takes over two months, other times it only takes a few weeks. Sometimes the DOL approval arrived in a matter of a few weeks, and other times it took more than two months. Applications that were submitted in October 2021 are currently undergoing the review appeal procedure at this time. The DOL staff will consider the appeals following the completion of the prevailing wage finding, which could take an additional 120 days.
- The organization or the employer must post job advertisements as part of the PERM recruitment process. You may, for instance, advertise job openings in the newspaper, online, on the radio, or in schools and institutions. To reach the individuals and give them ample time to respond, the company must publish these employment advertisements for at least 30 to 60 days. The method and timing must also be planned in accordance with the initial and subsequent interviews with job applicants. This procedure doesn’t take very long.
- Following the conclusion of the hiring procedure, your business may submit the ETA-9089 PERM application. The employer is required to submit the ETA-9089 PERM application following the hiring. After Form 9089 is submitted, it may take several months for the legal services to process the PERM approval. If your business is not subject to a DOL audit, PERM processing takes little time. However, the PERM procedure may be further delayed if DOL seeks an audit. In this situation, it can take up to six months until your application is officially decided.
The audit review process currently takes more than 209 days.
As a result, depending on the priority of each case, the normal processing period ranges from six to twelve months.
The processing times for applications for permanent labor certification (PERM) have been modified monthly by the Department of Labor (DOL). The processing timeframes for PERM applications in March 2022 were almost longer than those in February. PERM approvals typically take 182 days to move through adjudication and 283 days to complete the audit review, concluding the timeframes every month.
Your timetable may be significantly altered by the PERM processing timeframes associated with an audit because the delay may lengthen. There are two categories for the audits.
Random Audits-The Department of Labor conducts audits on a few cases as a precaution to make sure that no one abuses the system. However, there is no expectation that the applicant will be ready for these audits because selection for these audits is quite random.
Targeted Audits-Targeted audits of PERM applications may be conducted if:
- having less than a bachelor’s degree is necessary for the position.
- working in a trade-related position
- the beneficiary is not qualified for the employment post if the employee is a relative of the employer.
- applicants who attended a particular set of preset public schools
- a job posting for which the business excludes applicants who have already been laid off from the hiring process because the role requires someone without a bachelor’s degree.
Within six months of submitting the PERM certification, you can get a request for one of these audits. You will receive a letter regarding the application when it has been audited, and you will have 30 days to respond, in roughly 2-3 weeks.
Since the audit was conducted, the DOL’s decision may take up to nine months to be made. You must therefore make the necessary preparations because the processing period could possibly grow to an additional year and a half.
Remember though, audited requests aren’t always turned down. You might still be approved even if the process is audited and takes a while to resolve.
The DOL may ask the employer to take further steps in the hiring process to ensure fairness. The fundamental justification for these actions is that the employer can ensure that their company follows appropriate hiring practices to identify and hire competent U.S. workers before extending job possibilities to immigrants or foreign nationals.
If an employer has recently been informed that their case has been designated for supervised recruiting, they have 30 days to send the advertisement draft in accordance with Department of Labor requirements. A firm advertisement may take several weeks or months to evaluate and accept in the interim. During this point, they could also inquire about the job in more detail.
Carefully completing your PERM application can assist you in processing it quickly and without receiving any audit notices.
The sole stage of the PERM green card application procedure that permits premium processing is Form I-140. You will be given a general schedule for each phase of the procedure, and each step will take several months.
The applicants for PERM green card filing face increased competition.
Let’s say you are submitting a PERM Labor Certification application without the assistance of a lawyer. In such situation, getting a direct clearance notification will be challenging given that they primarily handle H-1B and L-1 visa requests. Therefore, to maximize your chances of receiving a direct clearance notice, you must deal with an immigration lawyer that has substantial experience in PERM Labor Certification.
With a 40% rejection rate for scenarios that are not approved, the average wait time for progress adjudications is 224 days.
The DOL targets 30% of labor certification cases annually for verification, which explains why there are so many audits and supervising recruitments. The audited PERM cases receive more attention and consideration than others.
You need to adhere to Department of Labor requirements for us to approve your PERM applications. Unfortunately, there are a number of risks that could lead to fast rejection. Here are a few explanations as to why your PERM application can be rejected:
- Inadequate And Ineffective Recruitment
If you don’t adhere to DOL’s advertising strategies or have insufficient knowledge of its marketing. There are many inquiries on a CV or application, thus mistakes could be seen as an intrusion on the position’s accessibility. Your business must maintain thorough records of all hiring and marketing initiatives, exercise caution during the market testing phase, and be upfront and truthful about job openings.
- Inaccurate Job Description
Employers are required to appropriately describe the duties, educational requirements, experience needs, and skill demands when sponsoring a sponsored post. This suggests that businesses are unable to set unrealistic employment requirements in an effort to turn away candidates. This suggests that the employer is not allowed to “tailor” work activities and requirements to the credentials of the sponsored foreign national.
- Employer’s Incapacity to Pay Prevailing Wages
The chances of the application being dismissed increase if the company does not provide genuine financial proof. An employer or business must pay a foreign national employee at the going rate for the type of work they are doing. When determining the prevailing wage, the employer must demonstrate his financial stability and ability to pay the employee on time. The prevailing pay decision protects foreign workers from being underpaid and maintains the equilibrium of the labor market.
If you application gets denied you can request reconsideration to the certifying official who rejected your case within 30 days. Only original material that was previously given to the Certifying Officer and documentation that the employer had at the time of filing the PERM application but did not have the opportunity to do so may be included. Additional paperwork that might not be pertinent to the PERM application is not required. You can also request an appeal. However, you should be ready for an immigration specialist to advise you to simply accept the PERM refusal and re-file the case later because the appeal may take some time.
You may: to monitor the status of your PERM application:
- Visit the DOL website to check the PERM processing times. You can track the progress of the review of your application.
- Verify the day you submitted your tax return. After submitting Form 9089, you can review the status of your case on the DOL’s Permanent Case Management System.
- Contact the helpline at the National Processing Center (NPC). Your name and filing date will be used by the NPC to assess whether any additional information is required for your application. If so, they will let you know what extra needs to be done.
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