One of the key steps in applying for an employment-based green card is the PERM (Permanent Labor Certification) process. This process is essential for employers who wish to sponsor a foreign worker for permanent residency in the United States. It involves a series of important steps, including recruitment, determining the prevailing wage, proving that no qualified U.S. workers are available for the position, and filing an application with the U.S. Department of Labor (DOL). An approved PERM certification is necessary before employers can file Form I-140 (Immigrant Petition for Alien Worker), which is the next step toward obtaining a green card for the employee.
A key challenge employers often face is determining the right time to start the PERM process. In this article, we will discuss why timing is so critical in the PERM process and how U.S. employers can proactively manage the green card application timeline to ensure success for both the company and their foreign workers.
When Should You Start the PERM Process?
The timing of the PERM process is extremely important, as delays can lead to significant problems for foreign employees, especially those on temporary work visas like the H-1B. As an employer, you need to plan carefully to ensure that the employee’s work visa doesn’t expire before the green card application process is complete. Waiting too long to start the PERM process can result in workers being forced to leave the U.S. while their status is resolved. This can create stress for both the employee and their family and disrupt daily operations for the employer.
Traditionally, it was recommended that employers begin the PERM process at least two years before an employee’s work visa reaches its expiration date (also known as the “max out date”). However, due to recent processing delays and increased backlogs, employers are now advised to start the process even earlier—around 3 to 3.5 years before the visa expires. This gives enough time to navigate the challenges posed by the current immigration backlogs.
Timing Risks: When Should You Start?
Many employers wonder, “What’s the latest we can start the PERM process without putting our employee’s immigration status at risk?” While each case is unique, there are general guidelines that can help employers assess the timing risk:
- Low Risk: Start the PERM process 3 years before the visa expiration date.
- Medium Risk: Start the PERM process 2 years before the visa expiration date.
- High Risk: Start the PERM process less than 2 years before the visa expiration date.
Special Note for H-1B Visa Holders:
For H-1B visa holders, filing the PERM application early can allow employers to take advantage of a provision that enables visa holders to extend their H-1B visa beyond the standard six-year limit. To qualify for this extension, either the PERM or I-140 petition must be pending for at least 365 days. This means that employers can file the PERM application as early as the fifth year of the employee’s H-1B visa to avoid hitting the six-year cap.
Understanding PERM Processing Times
The PERM process involves several steps, each with its processing times. Over the past few years, the DOL has seen an increase in the number of applications, leading to longer processing times and a growing backlog of cases.
Currently, the average processing time for a PERM application is between 6 to 12 months. However, processing times can vary depending on the specifics of your case and the employer’s location. Employers should regularly check the DOL website for updates and more specific estimates of where their cases may fall within the processing time range.
Employers must start the PERM process as early as possible to account for potential delays. The sooner the application is filed, the better the chances of avoiding unnecessary holdups.
The Risk of a PERM Audit
One factor that could significantly extend the PERM processing time is the possibility of a PERM audit. The DOL may randomly or systematically select PERM applications for audit to ensure compliance with all program requirements. During an audit, the employer is required to submit additional documents and evidence, which can take several months to prepare.
In recent years, the DOL has been conducting more audits, adding further delays to the process. If your PERM application is audited, it could extend the timeline by several months. To mitigate this risk, employers should be meticulous in their record-keeping and ensure that all recruitment and wage documentation is accurate and complete.
How Filing Early Can Save on Costs
Filing the PERM application early can also help employers save money in the long run. In the second stage of the employment green card process, when employers file Form I-140, many choose to use Premium Processing to expedite the approval. Premium Processing costs an additional $2,805 but guarantees a faster decision from USCIS.
By starting the PERM process earlier, employers can reduce the likelihood of facing a time crunch when filing the I-140. If the PERM is filed and processed on time, the employer may be able to avoid Premium Processing for the I-140 stage, thus saving on the additional $2,805 cost.
Timing Issues: How to Handle Requests for Information (RFIs)
Navigating the PERM (Program Electronic Review Management) process can be complex, especially when faced with Requests for Information (RFIs) from the Department of Labor (DOL). Understanding how to manage these timing issues is crucial for ensuring a smooth application process.
What Happens if the DOL Issues an RFI After Submitting a PERM Application
When the DOL issues an RFI after a PERM application is submitted, it indicates that they require additional information to proceed with the application. The employer typically has 15 days to respond to the RFI. Failure to respond within this timeframe can lead to an automatic denial of the application.To handle delays caused by RFIs effectively:
- Acknowledge Receipt Promptly: As soon as you receive the RFI, confirm its receipt and begin gathering the necessary information.
- Assess Required Information: Carefully review what the DOL is asking for and ensure that all requested documents are collected and submitted in a complete manner.
Best Practices for Responding to an RFI in a Timely Manner
To prevent further setbacks, follow these best practices:
- Organize Documentation: Create a checklist of all requested items and ensure each document is readily available.
- Consult Legal Counsel: If possible, work with an immigration attorney who can help interpret the RFI and guide your response.
- Submit Early: Aim to submit your response well before the deadline to avoid last-minute issues.
The Role of Timing in PERM Audits
If a PERM application is selected for audit, timing becomes even more critical.
What Happens if Your PERM Application is Selected for Audit
An audit requires additional scrutiny of your application, which can significantly delay processing times. The DOL may take several months to review audited applications, with average review times exceeding 480 days for those filed in late 20222.
Common Reasons for PERM Audits
Common triggers for audits include:
- Incomplete or inconsistent information in the application.
- High salaries compared to industry standards.
- Employer’s recruitment practices not aligning with DOL requirements.
Strategies for Efficiently Navigating an Audit
To minimize delays during an audit:
- Prepare Thoroughly: Ensure that all documentation related to recruitment efforts and job descriptions is complete and accurate.
- Respond Promptly: When asked for additional information, respond as quickly as possible with well-organized documentation.
Explanation of Priority Dates in the PERM Process
The priority date is established when the DOL receives your PERM application. This date determines your place in line for green card processing. Delays in the PERM process can push back applicants’ ability to file their I-485 (Adjustment of Status), affecting overall immigration timelines.
Connection Between the Visa Bulletin, PERM Timing, and Green Card Issuance
The Visa Bulletin indicates when applicants can move forward with their green card applications based on their priority dates. If there are significant delays in processing due to RFIs or audits, applicants may miss out on opportunities to adjust their status when their priority date becomes current.
How Maintaining Valid Non-Immigrant Status Impacts Timing and Eligibility
If an applicant’s visa status expires while waiting for PERM approval, they may become ineligible for adjustment of status. It’s essential to keep track of visa expiration dates and any changes in employment status that could affect eligibility.
Risks of Timing Misalignments Between PERM Approval and Visa Status Expiration
If there’s a gap between PERM approval and visa status expiration, individuals may face challenges in applying for a green card. This misalignment can lead to complications or even denial of applications.
Tips for Ensuring Continuous Legal Status While Awaiting Green Card Approval
- File Extensions Early: If you are on a temporary visa, apply for extensions well before your current visa expires.
- Consider Alternative Visas: Explore options like changing your visa status if necessary.
How Employer and Employee Timing Impact Each Other in the PERM Process
Coordination between employers and employees is vital during the PERM process.
Coordination Between Employer and Employee
Both parties must ensure timely submission of required documents. Delays from either side can lead to missed deadlines or incomplete applications.
Impact of Employee’s Professional or Personal Situation on Timing
Changes in an employee’s situation—such as job changes or travel plans—can affect timing. Employees should communicate any potential changes that might impact their immigration status or application timeline.
How Employer Policies Can Affect Timing
Employer internal policies regarding approvals and communication can also influence timing. Employers should streamline processes to avoid unnecessary delays during application preparation.
Common Timing Mistakes to Avoid During the PERM Process
Several common mistakes can hinder progress during the PERM process:
- Ignoring Deadlines: Failing to adhere strictly to submission deadlines can result in denials.
- Inadequate Communication: Lack of clear communication between employers and employees regarding expectations can lead to confusion and errors.
How Failure to Follow Precise Timing Requirements Can Result in Delays or Denials
Missing deadlines or failing to provide timely responses can lead to RFIs or outright denials, significantly extending wait times.
How to Avoid Mistakes That Could Set Back Your Green Card Timeline
- Create a Timeline: Develop a detailed timeline that includes all critical deadlines related to your application.
- Regular Check-ins: Schedule regular updates between employers and employees regarding progress on applications.
How External Factors Affect PERM Timing
External factors such as holidays or economic conditions can also impact processing times.
Impact of Government Closures, Holidays, and Other External Factors on the PERM Process
Government holidays or unexpected closures can delay processing times significantly. Employers should account for these factors when planning submissions.
Economic Conditions Impacting Recruitment and Perm Timelines
Economic downturns may influence hiring practices, leading employers to delay recruitment efforts essential for completing the PERM process.
Planning Around External Factors to Avoid Delays
Employers should consider external factors when scheduling recruitment activities or submitting applications, ensuring that they account for potential delays caused by government operations or economic conditions.
Plan for a Smooth PERM Process
Timing is one of the most important factors in the PERM process. Employers need to act proactively to ensure that they don’t miss critical deadlines or put their foreign workers at risk of falling out of status. Starting the process early not only reduces risks but can also save time and money down the line. The PERM process is complex and requires careful planning, but with the right timing and preparation, employers can ensure a smooth green card application process for their foreign workers.
By keeping these timing considerations in mind, you’ll be better equipped to manage the green card sponsorship process, minimize disruptions, and ultimately provide your employees with the opportunity to obtain permanent residency in the U.S.
How Law and Visas Can Help?
At Law and Visas, our team of expert immigration consultants is here to make your travel to the U.S. straightforward and successful. Whether you’re applying for a Business Visa or an Immigrant Investor Visa, we handle every step—from preparing your application to gathering the required documents.
Our Immigration Consultants and Lawyers ensure that your application meets the highest standards, with no details missed. We’ll also keep you informed throughout the process and coordinate with the immigration office or embassy on your behalf.
Law and Visas has a strong record of helping clients secure the visas/permits they need to visit the United States. You can call us today at +234 812 5505 986 to learn how we can help you
