By Linda Rahal
Attorney / Owner / Founder
Trow & Rahal, P.C.
One of the primary ways a foreign national can obtain U.S. permanent resident (“green card”) status is for a sponsoring employer to file a PERM labor certification application (“PERM application”) with the U.S. Department of Labor (DOL).
Filing the PERM application is the first of three stages in this path to a green card; the second stage is to file an immigrant visa petition (I-140); and in most circumstances, the third stage is to file an adjustment of status application (I-485) if the person is already in the United States.
Prior to filing a PERM application, the sponsoring U.S. employer must undertake a recruitment process (detailed in the sidebar below) in order to demonstrate that it is not able to find qualified and available U.S workers for the position.
We recommend that employers consider starting the green card process early.
The Top Five Reasons to file PERM applications early are:
1. Filing the PERM application early establishes the foreign national’s “Priority Date” sooner rather than later. The date a PERM application is filed with the DOL determines the priority date for the foreign national employee. The priority date establishes the employee’s place in the “queue” for an immigrant visa number, which is required before filing the last step of the green card process. There is typically more demand than immigrant visas available. This has created a “backlog” in many green card categories, referred to as immigrant visa retrogression. This backlog can result in a lengthy delay for an immigrant visa to be approved. As a result, the earlier the PERM application is filed, the sooner the foreign national’s priority date is established.
2. H-1B visa extensions beyond the six-year maximum become available. A foreign national employee who holds H-1B visa status has a maximum of six years available in H-1B visa status. However, if an employer files a PERM application more than 365 days before the end of this six-year period (referred to as the “five-year mark”), H-1B visa extensions are available beyond the six-year limit. These extensions are usually necessary due to the immigrant visa retrogression.
In order to ensure filing by the five-year mark, employers should commence the PERM application process no later than 6 – 12 months before the employee reaches the fifth year in H-1B visa status to allow time for the recruitment to be completed prior to filing the PERM application.
3. Employers may be able to file H-1B visa extensions every three years, eliminating the expense of legal and filing fees to file every year. An employer filing a PERM application by the five-year mark may obtain H-1B visa extensions beyond the six-year maximum. However, the extensions can be obtained for only one year at a time unless the employee has reached the stage in the green card process where the immigrant visa petition has been approved. In this circumstance, an H-1B visa extension can be obtained in three-year increments if the employee is subject to retrogression.
4. Employers can benefit from greater employee retention. We find that most foreign national employees have a strong desire to obtain a green card. For some, this has been a goal for a very long time. Employers who begin the green card process sooner than later are more likely to retain valued employees.
5. Knowing that the green card process is under way can positively influence employee morale. An employer’s commitment to file the PERM application without delay can contribute greatly to the morale of its foreign national employees. These employees may experience anxiety or unhappiness, and attention to their work can suffer when employers are slow to start the green card process.
Employees facing the prospect of retrogression will appreciate an employer’s efforts to file the PERM application as soon as possible in order to establish a priority date. Even those employees who are not subject to retrogression can be anxious for the employer to start the green card process because reaching the third stage of filing the adjustment of status applications allows their spouses to obtain work authorization.
For all of the above reasons, we encourage employers to consider filing a PERM application for its foreign national employee sooner than later.
Specific details regarding the PERM process are explained in the sidebar below. The PERM system is, however, highly complicated. Trow & Rahal’s attorneys are readily available to assist employers and individuals in PERM and other employment-based immigration matters. Contact us at 202-537-4830 or firstname.lastname@example.org.
PERM 101: The Basic Steps in PERM Labor Certification Process
To prepare and file a PERM application for an employee, an employer must follow very strict DOL regulations for conducting recruitment for the foreign national’s position and must be able to show that there are no qualified and available U.S. workers.
PERM Recruitment Steps
The PERM recruitment steps, in brief, include:
Prevailing wage determination: The employer must obtain a prevailing wage determination from the DOL, and offer at least this wage in the PERM application.
Notice of Filing (NOF): The employer must physically post an NOF notifying employees that a labor certification application is being sought. It must be posted in a conspicuous location for 10 consecutive business days and include the wage or a wage range. If an employer typically posts positions on any “in-house media,” the NOF must be placed there as well.
30-Day posting with State Workforce Agency (SWA): The employer must place a 30-day job order with the relevant state SWA for the position.
Newspaper ads: The employer must place two Sunday print ads in a paper of general circulation for the area of intended employment.
Three other forms of recruitment: For professional positions, the employer must use three additional forms of recruitment from this list: job fairs, employer’s website, job search web site, on-campus recruiting, trade or professional organization’s journal, private employment firms, employee referral program, campus placement offices, local and ethnic newspapers, and radio/television advertisements.
Timely Review of Resumes
The company must review and evaluate all resumes received and contact any potentially qualified applicants within two weeks.
Filing the PERM Application
If unable to find qualified and available U.S. workers, the employer must register with the DOL PERM system and then file the PERM application through the online portal.
Public Audit File
Employers must keep an “audit” file for five years from the date of PERM filing, including a report summarizing the recruitment efforts and evidence of recruitment. If the PERM application is audited by the DOL, a copy of this file must be submitted.
The DOL is presently making determinations in approximately four to six weeks, but has taken up to 9 to 12 months in the recent past.
Please note: Trow & Rahal provides its monthly newsletter as a service to its clients, colleagues, and friends to provide updates and sometimes opinions on changes in immigration law. The information contained in this newsletter is not intended as legal advice, and persons receiving this information should not act on it without consulting professional legal counsel.