9 February 2019

PERM Wage Determinations Causing Significant Delay in PERM Filings

There are usually 3 steps to the employment based green card process: (1) PERM Labor Certification, (2) I-140 Immigrant Petition and (3) Adjustment of Status to lawful permanent resident. As part of the PERM Labor Certification process, an employer must obtain a Prevailing Wage Determination from the Department of Labor.

The Department of Labor issues a Prevailing Wage Determination based on multiple factors, including, but not limited to, the job description, the minimum requirements for the position, and the area of intended employment. An employer must offer at least the prevailing wage for the sponsored position.

In addition to obtaining a Prevailing Wage Determination, the employer must conduct recruitment to test the U.S. labor market to determine if there are any able, willing, qualified, and available U.S. workers for the job opportunity. Essentially, the employer must prove that the job opportunities, wages, and working conditions of U.S. workers will not be adversely impacted by hiring a foreign worker permanently for the job. This will involve the employer advertising for the sponsored position (see my PERM FAQs for more details on this process). The recruitment process will take a minimum of 60 days to complete.

Currently, we are witnessing an increase in Prevailing Wage Determination processing times, with wage determinations taking a minimum of 4 months to be issued. This in turn can cause a significant delay in filing the PERM Labor Certification application. 

An employer cannot file a PERM application without a Prevailing Wage Determination. Once a prevailing wage request has been submitted with the Department of Labor, the employer generally has 2 options: (1) Begin the recruitment process while the prevailing wage request is pending, or (2) Begin the recruitment process after receipt of the Prevailing Wage Determination.

Recruitment Prior to Receipt of Prevailing Wage Determination:

Currently, employers who begin recruitment while the prevailing wage request is pending are finding that PERM applications are taking at least 4 months to file. Employers sometimes choose to proceed with this option because it offers a faster track to filing – the 60 day recruitment period is usually complete by the time the Prevailing Wage Determination is issued. But the increased processing time has made it risky for employers to proceed with this option.

If an employer chooses to begin recruitment while the prevailing wage request is pending, they will have a small window in which to file the PERM application. Advertisements are only valid for 180 days. With Prevailing Wage Determinations taking at least 4 months to be issued, there is no room for bumps in the recruitment process. Further, issues can arise with the prevailing wage itself. Sometimes the Department of Labor will issue a Request for Information regarding the prevailing wage request. If this occurs, employers now run a high risk that the advertisements will expire before we receive the final decision on the wage request.

Recruitment After Receipt of Prevailing Wage Determination: 

Employers who begin the recruitment process after receipt of the Prevailing Wage Determination must currently wait approximately 6 months before filing the PERM application (4 months for the Prevailing Wage Determination plus 60 days minimum for recruitment).

The PERM process is long enough as it is. Further delays in the process can become worrisome, especially for urgent situations. One of the most common examples involves individuals in H-1B status. As most of you may already know, the maximum duration of stay in H-1B status is 6 years. In order to extend H-1B status beyond the 6 year limit, the foreign worker must have a green card in process.

Under the American Competitiveness in the 21st Century Act (AC21), if you have a PERM Labor Certification filed at least 365 days prior to the end of your 6 year limit, you may receive 1-year extensions of your H-1B status beyond the 6 year limitation. Further, if you have an approved I-140 Immigrant Petition, but your priority date is not current (an immigrant visa aka green card is not yet available to you) you may receive 3-year extensions of your H-1B status beyond the 6 year limitation.

As you can see, the delay in prevailing wage processing times may jeopardize an individual’s ability to timely request an extension of his/her H-1B status beyond the 6 year maximum period of stay. The individual may be required to depart the U.S. and return once one of the conditions above is met.

The silver lining is that processing times for filed PERM applications remain steady at approximately 3.5 months. As always, if you are starting the PERM process, please contact a qualified immigration attorney so that a proper plan of action can be made for your unique situation.

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Posted February 9, 2019 by KrystalAlanis in category "Green Card", "Immigration News Updates", "Labor Certification