Episode 88: PERM top considerations for employers

Episode 88 — PERM priorities: The top four considerations for employers

This episode of the BAL Immigration Report is brought to you by BAL, the corporate immigration law firm that powers human achievement through immigration expertise, people-centered client services and innovative technology. Learn more at BAL.com.

In this week’s episode, BAL’s Chad Li and Kyle McLaughlin discuss common questions about the PERM process and identify four main considerations employers should be aware of when navigating its complexities. Plus, the latest U.S. and global immigration news.

From Dallas, Texas, I’m Rebecca Sanabria.

Announcer: The PERM application, formally known as Program Electronic Review Management Labor Certification, is managed by the Department of Labor and is often a part of the employment-based green card process.

In 2023, there were 1.8 million PERM applications pending, accounting for significant backlogs in Department of Labor processing times and longer wait times for individuals to obtain their green cards.

The PERM process has many regulatory steps. Reasons for PERM denials can include application and documentation errors, insufficient job requirements, wage issues and recruitment violations.

Given PERM’s many challenges, BAL Senior Associates Chad Li in the Dallas office and Kyle McLaughlin in the Austin office joined the BAL Immigration Report to discuss common questions about the process and the four main considerations employers should be aware of when preparing PERM labor certifications for employees.

Li: Hi everyone! This is Chad Li. I’m here with my colleague Kyle McLaughlin, who is making his debut on the podcast.

We’ve been wanting to do this for a while, since I’ve known Kyle — and this is will be a great opportunity to kind of pick his brain since he is an expert in the field of PERM, all things PERM and green card.

McLaughlin: Thanks, Chad. Really happy to be here making my debut — especially happy to be doing it with yourself.

Li: So, you’ve worked on several clients of different sizes and industries. And from your benchmarking, what are some of the most common concerns there, questions from employees and immigration program managers that you have been seeing this past year?

McLaughlin: I’ve been getting a lot of questions about the green card process in general, but specifically PERM. PERM is the first of three steps in the most common green card process. The PERM process is employer-driven and confirms that the employer intends to employ the foreign national in the PERM position when the foreign national receives their green card.

The sponsoring employers are required to test the U.S. labor market by first determining the job’s minimum requirements, advertising the job opportunity and reviewing any applicants for the position. The PERM can be filed if there are not sufficient U.S. workers who are able, willing, qualified and available to perform the job.

What types of PERM questions are you hearing?

Li: I’m hearing a lot of questions and conversations centered around when the PERM process should be started for employees, since the PERM process is a multi-stage process that does require a lot of time to complete. So it has been a lot of engagement on making sure that employers are acutely aware as to timing and starting processes for employees as early as possible, so that there are no gaps in work authorization.

With that in mind, we thought it would be timely to review some of the most important considerations employers should be thinking about when preparing employees for PERM, and we narrowed them down to a list of about four that we think are the most important on a high level.

As Kyle and I both alluded to, while a PERM process is generally the most common pathway for companies to sponsor an employee for a green card process, there is an integral component here to take into account when we are going through this route, which is the processing times for a PERM.

In recent years, we have seen a lot of volatility in government processing times, where the phases of the PERM process are taking substantially longer to complete. Specifically, in terms of processing times with the Department of Labor, we are seeing prevailing wage requests filed in March 2024 being adjudicated now. So PERM prevailing wages are taking roughly five to seven months to be returned.

If you’re utilizing alternative wait surveys, the processing times are generally a little bit longer at around 11 months. Thankfully, the good news here is that prevailing wages have been trending downward in terms of processing times over the past year, from the high that we are tracking at some point of almost nine to 10 months.

Generally, companies also start the labor market test or recruitment for PERM after the prevailing wage is returned. With that process taking roughly another two to three months to complete, companies can also explore mitigating that recruitment period processing time by opting to run recruitment while the prevailing wage is still pending and accounting for the recruitment period early.

Lastly, once the PERM is filed, we are also continuing to see increased PERM processing times, with the DOL stating times of about 407 days for adjudication. From a benchmarking standpoint, we at BAL are starting to see PERMs filed in July 2023 being adjudicated. And in recent times, this stage is where we have seen the most significant increase in DOL adjudication times, with it currently taking over 13 months, which has been much longer than its historical norms, without a decrease of processing times expected in the coming year.

We obviously hope that the changes that the DOL has implemented this past year — with the filing system and form changes — that it will be a pathway for us to see decreased certification times as well.

In short, we are seeing the PERM process taking almost two years from starting the PERM process for an employee to getting a PERM certification in place to move forward to latter stages of the green card process.

Taking into account the above context of processing times, it leads us directly into our second consideration, which is when companies should start PERM processes for their employees and highlighting any nonimmigrant visa maxed out priorities. Specifically, the most important context to consider is that the most common nonimmigrant visa, or NIV, work categories of H-1Bs have a duration period of six years, L-1Bs have five years and L-1As with seven years.

With the elongated processing times with the Department of Labor, our advice to employers is to always consider starting green card processes for employees about three years from an NIV max out, especially if the PERM route is the most viable option based on the employee’s role and qualifications. This really allows for the employer to account for the processing times for PERMs laid out earlier, along with enough time built in to find potential alternatives either in the green card or other NIV work authorization scope to be explored, should the PERM process be unsuccessful or they encounter additional unexpected delays.

So obviously a lot of things to consider already. Kyle, what are some other things that employers should be thinking about when contemplating the PERM route for their employee’s green card process?

McLaughlin: Thanks, Chad. I think the main thing here is to note that the PERM process is employer-driven. The PERM provides information regarding the job duties and requirements, conducts the labor market test, reviews any potential applicants and pays for all PERM-related expenses. I want to stress that the employee cannot participate in the PERM recruitment process, nor can they pay for any PERM expenses.

There are several employer attestations on a PERM filing. I wanted to highlight a few. One is that the prevailing wage salary is not based on commissions, bonuses or other incentives. Two, the employer will pay the prevailing wage to the foreign national when they obtain permanent residence. And three, the employer has sufficient funds to pay the wage or salary offered. These are three of the 10 employer attestations required to file a PERM application.

Companies should also keep in mind that there are resources that are required in order to file a single PERM application. The company should then consider resource limitations when handling multiple PERM applications. For instance, the company should consider the resources needed to review PERM applicants. There may be ways the company can stagger certain PERM processes in order to avoid resource limitations.

One other factor to consider is layoffs. An employer cannot file a PERM if there has been a layoff within the past six months of the job opportunity in the same occupation and in the same area of intended employment.

Announcer: Although the PERM process funnels primarily through the Department of Labor, McLaughlin notes that when it comes to compliance, which is the fourth consideration employers need to think about, more than one department may be involved.

McLaughlin: Another thing to consider on the compliance side of things is that there are two departments involved in the PERM process.

The Department of Labor and Department of Justice are both involved. In my experience, most PERM analysis is focused on the Department of Labor regulations, guidance and case law.

The Department of Labor regulations state the posting notice requirements, newspaper advertising content requirements, recruitment timelines, layoff considerations, etc.

The Department of Justice can also be involved, particularly when there is a deviation from the company’s normal recruitment processes. It is critical to analyze an employer’s PERM program through both departmental lenses.

In sum, PERM is an exacting process. It is time-consuming and it can be nuanced. I recommend that you speak with your immigration council to holistically review your PERM program and in order to be given targeted advice.

Announcer: For the latest on PERM processing times and regulatory updates, visit Immigration News at BAL.com.

And now, the top U.S. and global immigration news.

The Paris 2024 Summer Paralympic Games opened yesterday with more than 4,000 athletes from around the world competing in 549 medal events through Sept. 8.

Of the 220 men and women representing Team USA, here are a few of the extraordinary athletes who also happen to be immigrants you can root for:

Born in Ukraine, Oksana Masters is a dual-sport phenomenon who is the most decorated winter Paralympian of all time, winning 17 medals in four sports. She is looking to take home a third gold medal in para-cycling.

Tatyana McFadden, born in Leningrad (now Saint Petersburg), Russia, has won 20 paralympic medals — eight of them gold — and will be competing in para-track and field.

And making their debut for Team USA are Abbas Karimi, originally from Afghanistan, competing in para-swimming and Mohamed Lahna, originally from Morocco, competing in para-triathlon.

Good luck to all the athletes competing in the Summer Games!

In other U.S. news, a federal judge in Texas temporarily blocked the Biden administration from approving parole requests under the Keeping Families Together program on Monday.

The program allows certain undocumented spouses and stepchildren of U.S. citizens to apply for parole in place, which provides deportation protection and the opportunity to apply for work permits and a path to permanent residency and citizenship.

The judge’s order temporarily prevents the Department of Homeland Security from approving cases, though the agency can continue accepting program applications.

In global news, EU authorities announced the official commencement date for the Entry/Exit System, known as EES, is Nov. 10, 2024.

EES is an automated system for registering non-EU nationals traveling for a short stay that will record each time they cross external Schengen area borders.

It will replace passport stamping and requires travelers to have biometric data recorded upon entry.

In New Zealand, the government announced increases to visa charges effective Oct. 1.

The increase in charges includes several immigration application government fees, such as those for temporary work visas.

The government will continue to support subsidized fees for visa applicants from Pacific countries.

Find all of our news at BAL.com/news. Follow us on X at @BAL_Immigration. And sign up to receive daily immigration updates in your inbox at BAL.com/newsletter.

We’ll be back next week with more insights from the world of corporate immigration.

I’m Rebecca Sanabria. Thanks for listening.

Copyright

The BAL Immigration Report is provided by BAL. Copyright 2024 Berry Appleman & Leiden LLP. All rights reserved. Digital redistribution to the public is permitted only with express written permission of Berry Appleman & Leiden LLP. This report does not constitute legal advice or create an attorney-client relationship. Visit bal.com for more information.