PERM Filing from Start to Finish: File in under 70 or 130 days?
Ever wonder why it takes so long just to file a PERM application or if there is a way to reduce the amount of time it takes to file a PERM application? When it comes to PERM, it is important to understand that (1) there is a mandatory recruitment stage that an employer must complete before the PERM filing can actually occur and (2) there are different options an employer has regarding the commencement of the advertisement/recruitment stage of the process.
An employer generally has 2 options when deciding when advertising/recruitment will begin. Both options have proven effective. It usually comes down to the particular circumstances surrounding each individual case and how quickly an application needs to be processed. Each of the options below carries its advantages and disadvantages
Here’s how it works:
A. If Advertising begins AFTER Prevailing Wage Determination (PWD) issued – Minimum 4-5 Month Wait to file PERM application:
- Advertisement approved by employer and PWD application submitted. The PWD will be issued in approximately 60 days.
- PWD issued and employer begins advertisement/recruitment stage.
- The Job Order must run for 30 days and the Notice of Filing must be placed for 10 consecutive business days and must contain the prevailing wage or offered wage if higher (the offered wage cannot be lower than the prevailing wage). Advertisement is placed in all other recruitment mediums.
- Thereafter, there is a 30 day quiet period before the case can be filed (Total 60 days minimum because of Job Order: 30 day mandatory run time + 30 day mandatory quiet period).
- Once the 30 day quiet period is complete and assuming no U.S. workers were found for the job opportunity, we can file the PERM Labor Certification application.
Recap: 60 days for PWD to be issued, 60 day mandatory recruitment period begins after PWD issued = Minimum 4 months to file the PERM Labor Certification application
B. If advertising begins while PWD is in process – Minimum 2-3 Month Wait to file PERM application:
- Advertisement approved by employer and PWD application submitted.
- Employer begins advertisement/recruitment stage while waiting for the PWD to be issued.
- Advertisement is placed in all recruitment mediums, including Notice of Filing with estimated wage and Job Order.
- PWD issued in approximately 60 days. Because the advertisement was placed while PWD in process, the Job Order, Notice of Filing and all other recruitment efforts are complete and the quiet period has usually ended.
- If the wage listed on the Notice of Filing is equal to or greater than the issued prevailing wage, we can begin working on filing the PERM Labor Certification Application. (Assuming no U.S. workers were found for the job opportunity).
Recap: 60 days for PWD to be issued, 60 day mandatory recruitment period began while PWD in process = Minimum 2 months to file the PERM Labor Certification application
Note: Option B assumes that the Notice of Filing has been posted with the estimated prevailing wage along with posting all other recruitment efforts. If an employer begins advertising while waiting for the PWD to be issued, but does not post the Notice of Filing until the actual wage is determined, the case can be filed in approximately 3.5 months.
Advantages of Advertising AFTER PWD issued
Disadvantages of Advertising AFTER PWD issued
|If the PWD is higher than expected and employer does not wish to continue with the GC process, no resources would have been used on advertising
|Another 60 days minimum is added to the process (Total 4 months minimum before PERM can be filed) *An estimated wage can be provided to employer based on DOL wage data
|If PWD is issued incorrectly, may have to re-file the application / submit a Request for Reconsideration. Under Option A, no resources would have been used on advertising
|The PWD is rarely issued incorrectly so it is unlikely resources will be wasted. Again, waiting to begin advertising adds another 60 days minimum to the process
|The PWD will remain valid AFTER its expiration date if ALL recruitment efforts are started AFTER the PWD is issued and at least one is started before its expiration
|60 days lost can make a big difference for an application that needs to be quickly filed. (As it is, DOL is taking 6 months to adjudicate PERM applications once filed)
Advantages of Advertising while PWD is in process
Disadvantages of Advertising while PWD is in process
|PERM may be filed in a minimum of 60 days
|If the PWD is higher than estimated, employer will have to re-post the Notice of Filing with the higher wage.*The recruitment process will still be ahead by approximately 15 days
|Saving 60 days can make a difference for an application that needs to be quickly processed. (As it is DOL is taking 6 months to adjudicate PERM applications once filed)
|If the PWD is higher than estimated and employer does not approve the higher wage, resources on advertisements would have been used
|If the PWD is lower than estimated and employer prefers to use the issued lower wage, the Notice will have to be re-posted, BUT the process will still be ahead by approximately 15 days
|If the PWD is lower than estimated, employer will have to pay the higher wage originally listed on the Notice of Filing if they do not want to re-post the Notice
Remember, these time-frames are estimates and reflect the minimum amount of time it takes to file a PERM Labor Certification application under each option. Because of the mandatory recruitment period imposed by the DOL, a case cannot be filed in less than 60 days. For a more comprehensive review of each step of the PERM process, please visit: