Timing Considerations in PERM Process
When it comes to the PERM process in obtaining employment-based green card, timing considerations are essential. You should allow up to 2 years for the entire PERM process. Two years might seem unnecessarily long. However, if you account for Prevailing Wage Determination processing time, advertising process, backlogs, potential audits, and any delays arising directly from the employer or employee, then allowing for extra time could prevent further issues arising from you losing your status.
For example, when a foreign worker is close to reaching the 6-year limit in the H-1B status, then the worker’s status could be jeopardized if the PERM application was filed too late. However, H-1B status can be extended, even pass the 6-year-limit, if the worker is a beneficiary of an approved I-140 petition whose priority date is not current, or if at least 365 days have passed since the PERM filing.
Prevailing Wage Determination (PWD) and Advertising:
Currently, Department of Labor takes about 90 days to issue a PWD. Generally, the best practice is to wait for the PWD to be issued before proceeding with the advertisement stage. The reason for this is if the advertisement offers a slightly lower wage than what the prevailing wage issued by the Department of Labor, then the employer will have to redo the affected recruitment, resulting in additional time and expenses. The general rule is that the employer must offer at least the actual PWD or slightly higher.
PERM Account with the Department of Labor:
It is a good idea to establish an employer’s PERM account with the Department of Labor is soon as you are ready to proceed with the process. The reason to do this ahead of time is because DOL can request extensive business documents to prove the business exists. This process can take several months and there are no expedite options. However, it is easy to create your account on the DOL website and provide necessary information. Doing this task as soon as possible will save you unnecessary frustration later on, as well as time.
The Recruitment Period and Filing the PERM Application:
The PERM must be submitted within 180 days of the start of the first recruitment step, and can be filed no earlier than 30 days after the last recruitment step concludes.
In most situations, the clock for filing begins once you have placed the first advertisement. Once the first advertisement has finished, you have 180 days to submit the PERM application with the DOL. On the other hand, if you filed the PWD and ran recruitment at the same time, then you have to file before the PWD expires.
Audit can add several months to the process. Unfortunately, audits are based on various factors, such as requesting that the worker speaks a foreign language for a job where normally speaking a foreign language would not be expected, but they can also be completely random. Therefore, understanding the importance of timing in the PERM process can help to handle this process in the most efficient way possible.
If you would like to discuss how PERM timing considerations might affect your status or you simply would like to learn more about the process, contact our DC PERM attorney here.