Processing times are a recurring topic for immigration attorneys and their clients. We want to know how long it will take the government to process, and, we hope, approve, the applications we submit. One of the most common applications is the Department of Labor’s Application for Alien Employment Certification, which is commonly referred to as labor certification or PERM (Program Electronic Review Management). Labor certification often is the first step in the employment-based green card (permanent residency) process for employers that want to convert employees from temporary work visas, such as H-1B, E, or L, to permanent residency, i.e. for a green card. For brevity, labor certification involves preparing a detailed job description, obtaining a prevailing wage determination from the Department of Labor (DOL), conducting a good faith recruitment effort to determine if there is an available, qualified U.S. worker, and submitting an application attesting to the employer’s recruitment efforts.
When the DOL first implemented the PERM online system nearly two decades ago, it projected processing times of 45-60 days. Although that projection proved true for a while, processing times since have grown. It now is taking the DOL about eight months to conduct the initial review of an application. If the DOL selects an application for audit, it then takes another three to four months to reach a decision after receiving the employe’s response. To get to the application filing stage, however, employers first must obtain a prevailing wage determination, which is the DOL’s assignment of the job into its generic occupational classification system and corresponding wage that the employer must pay the employee upon receipt of the green card. The prevailing wage processing times now are averaging six to eight months. When you add together the initial case preparation, prevailing wage processing time, mandatory 30-day recruitment period and 30-day waiting period before submitting the application, and then the actual application processing time, it’s now taking a year and a half or more to get the labor certification step.
Unlike U.S. Citizenship and Immigration Services, which largely funds itself through the filing fees it charges, the DOL relies on Congress for funding. Program managers at the DOL for years now have been saying that processing times will not improve until more funding is available to hire more personnel. The low-hanging fruit is to charge filing fees, but that will require a new legal framework, which very well could come with an entirely revamped labor certification process. Such change often begs the comment of, “be careful what you wish for,” but it would seem long overdue to eliminate the need for newspaper ads to test the U.S. labor market. Aside from immigration lawyers, I’m not sure who scours print newspapers these days when searching for a job.
As H-1B and L-1B visa holders and their employers are aware, there are time limits to those visas. While L-1B visas have a fixed period of five years maximum, H-1B workers can extend their visas beyond the otherwise applicable six-year maximum if their employers reach key milestones in the green card process. The guaranteed method is to file the labor certification application when the H-1B worker still has at least a year remaining of the initial six-year period.
The longer labor certification processing times make it critical for employers and employees alike to start the green card process sooner than they previously might have. When it was taking only a matter of months to receive a labor certification approval, they had the luxury of starting the green card process when they were ready and often after an initial period of employment. It’s now more critical than ever to consider at the time of hire (for the employer) and changing jobs (for the employee) how much time is remaining on the temporary work visa and then planning for the green card process to avoid the need to spend time abroad while waiting for a green card or new period of short-term work visa eligibility.