Most foreign nationals who wish to be eligible for employment-based green cards must do so through the PERM labor certification process by having their employer file a labor certification application with the Department of Labor (DOL). The PERM application certifies that there are no U.S. workers who are willing, able, or available to fill a position offered by an American employer, and the employer must undertake extensive recruitment to prove such. The PERM application also certifies that the employer will pay the sponsored employee the prevailing wage for the job. Once approved or “certified,” the foreign-national employee can petition USCIS for eligibility under one of the employment-based preference categories by filing an I-140 immigrant visa petition.
The largely automated PERM program was introduced in March 2005 and touted by DOL as a new and retooled expedited labor certification process through which employers could begin their sponsorship of valued employees. Nevertheless, the PERM process remains laborious and complicated.
Over the past five years through the issuance of FAQs — DOL’s 11th and latest was issued in August — DOL has retroactively applied new rules to old cases and used the informal FAQ process to create or change its requirements. By forgoing the more formal route of promulgating regulations, which would afford public comment and mandate government consideration, the program remains riddled with deficiencies and uncertainties for employers. Moreover, the application takes about four to six months to prepare, plus another six to ten months for processing by DOL (from online submission to adjudication). And, if DOL requests that the employer’s recruitment and other records be audited, another 15 months will be tacked on for a DOL audit response. Beyond the changing rules and lengthy processing times, perhaps the most disheartening aspect of the process is how unforgiving it is — even the tiniest error on the PERM application can completely derail a case.
So why do employers and their employees bother? Despite these and other hurdles inherent in the PERM labor certification process, this route to permanent residence is often the only viable option for many needed employees. And, the process eventually works: long-time nonimmigrant employees and their families can become green card holders and, later, citizens of the United States. However, employers who anticipate long-term sponsorship of current employees must take particular care to ensure consistency throughout what can be a multi-process, nine- to ten-year immigration odyssey. This can be difficult, especially when the immigration laws are not consistent. For example, a foreign national can be a “professional” for H-1B purposes on the basis of experience and education but not for immigrant visa purposes. Employers also must take care to timely file their PERM applications, especially when their H-1B employees are approaching their final year of their visa status. Indeed, long-term immigration strategies must be considered when hiring H‑1Bs.
Until this system changes, employers and their immigration counsel should actively review pending cases to determine whether additional documentation is required to meet ever-changing DOL requirements. Counsel and employers also are advised to determine from the start the best short- and long-term strategies for their employees.
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