PERM Processing Time Increases: Advance Planning Required

Historically, there has been considerable variation in the amount of time required for the U.S. Department of Labor (DOL) to process PERM labor certification applications. The recent trend, however, has been for the processing of these cases to drag on significantly longer than in years past, with an average processing time of six months or more. This processing timeframe is a critical consideration for employers and foreign national workers making long-term immigration plans.

Overview of PERM Steps and Timing

Most employment-based permanent residence (“green card”) cases are initiated via the PERM process. There are a number of steps that have to be taken before a PERM case can be filed, and this prep-time must be taken into account for immigration planning purposes. Once the PERM case is filed, there can be wide variances in the timeframe for obtaining a decision. Variations occur both as a result of fluctuations in DOL processing times, as well as based on whether or not the case must undergo certain optional DOL steps, such as an audit. A more detailed discussion of the timeline for filing a PERM case can be found in the MurthyDotCom NewsBriefs, PERM Labor Certification Process and Timing, Part 1 (18.March.2013) and Part 2 (26.March.2013).

Processing Times Can Impact Ability to Maintain Status

The time it takes to prepare a PERM case for filing, in addition to the ever-shifting DOL processing time, must be taken into account when determining the time to initiate a PERM case. It may be necessary for a foreign national worker to have such a case filed by a particular date in order to avoid certain problems related to the ability to maintain valid nonimmigrant status. Most notably, the filing of a PERM case can directly impact an H1B worker’s ability to extend status beyond the standard six-year limit. Failure to move forward with such a case in a timely manner could very well result in the H1B worker having to leave the country for an extended period.

PERM Cases Taking Longer to Process, Encounter Unexpected Delays

As of the time of this writing, the most recent DOL information, published on September 3, 2013, advises that analysts are processing PERM cases filed on or before February 28, 2013. One should keep in mind, however, that the DOL was not processing PERM cases for about two weeks in October due to the government shutdown, meaning that the backlog of cases likely has increased. DOL processing times, which are sporadically updated throughout the year, can be obtained by visiting the iCert WebSite, and then selecting the PERM & PW Processing Times tab.

Lengthier Timeframe for Audited Cases

The latest update regarding audited PERM cases under review shows that DOL analysts are processing cases with priority dates of August 31, 2012 or earlier. This information was also published on September 3, 2013, prior to the October 2013 government shutdown. The DOL follows a first-in/first-out process, but cases that are audited take significantly longer than those that move through the process without an audit.

Conclusion

When setting up a timeline for initiating a PERM case, it is important to be mindful of the lead-time required to prepare the case for filing, in addition to the variable processing times by the DOL. It is best to err on the side of caution and avoid relying on the DOL to swiftly complete review of these cases. Attorneys at the Murthy Law Firm carefully monitor PERM processing times, and are available to help employers and foreign national workers fully develop long-term strategies toward the achievement of their immigration goals.

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