As part of the PERM Labor Certification process, an employer must obtain a Prevailing Wage Determination (PWD) from the Department of Labor (DOL). The DOL issues a PWD based on the specific position, the requirements for the position, and the area of employment. An employer must, at a minimum, pay a foreign worker the prevailing wage for that position.

We have noticed a gradual increase in PWD processing times. Currently processing times have increased to almost 4 months. This can cause a significant delay in processing the PERM labor certification application. Here’s why: 

An employer cannot submit a PERM application without a Prevailing Wage Determination. Once a prevailing wage request has been submitted, the employer generally has 2 options: (1) begin the recruitment process prior to receipt of the PWD, or (2) begin the recruitment process after receipt of the PWD.

Employers who begin the recruitment process prior to receipt of the PWD are finding that PERM applications are taking at least 4 months to file – this is almost 2 times longer than it was previously taking!

Employers who begin the recruitment process after receipt of the PWD must wait approximately 5.5 to 6 months before filing the PERM application. Previously, it was taking at least 4 months to file under this route. These differences are significant and can cause concern.

Delays in the process can cause a headache especially for those individuals who will need either a filed PERM application or an approved I-140 petition to obtain an H-1B extension beyond the 6 year limit. You may extend your H-1B status in one year increments as long as the H-1B holder has a filed PERM application or I-140 petition 365 days before reaching the 6 year limit. If you have an approved I-140 petition and your priority date isn’t current, you may receive 3 year extensions of your H-1B status. Therefore, timing can become very important in these types of situations.

Another issue that can arise involves option 1 above. Advertisements are valid for 180 days. If recruitment begins prior to the receipt of the PWD, the employer will have a small window in which to file the PERM application. This leaves no room for bumps in the recruitment process.

In an attempt to fix the problem, DOL has assigned additional resources to reduce processing times, but cannot make any promises. Hopefully this issue will be resolved soon. The good news is that processing times for filed PERM applications have improved significantly. Online general processing times show that PERM applications are being adjudicated in about 3 months. I have seen PERM approvals in less than 2.5 months!

My hope is that the DOL will gather enough resources for PWD processing times to decrease significantly while continuing to efficiently adjudicate filed PERM applications.

As always, if you are starting the PERM process, please contact a qualified immigration attorney so that all avenues can be discussed.

Direct: 713-457-5703; Email: [email protected]