Critics say the Department of Labor’s policies have produced long and costly delays to sponsor immigrants for permanent residence and contributed to dysfunction in America’s immigration system. To obtain an employment-based green card, an employer must obtain a prevailing wage and, in most cases, use advertising to show no qualified U.S. worker is available under the DOL’s troubled PERM or permanent labor certification program.
“Although immigration law requires ‘labor certification’ for most employer-sponsored immigrants, [under the PERM program] the Department of Labor has created the current system out of whole cloth,” according to a National Foundation for American Policy report. Nothing in U.S. law requires advertising. At the time of the 1965 Immigration Act, Senator Edward Kennedy (D-MA) said the DOL could use available employment data because “It was not our intention . . . that all intending immigrants must undergo an employment analysis of great detail that could be time consuming and disruptive to the normal flow of immigration.”
Despite this, attorneys and employers say the Department of Labor has created a system with mounting costs and delays that disrupt the ability of employers to sponsor highly skilled immigrants. To better understand the process, I interviewed Krystal Alanis, who responded in writing. Alanis is a partner at Reddy Neumann Brown PC, managing the firm's PERM Labor Certification Department.
Stuart Anderson: How long does the Department of Labor say the PERM process should take?
Krystal Alanis: The DOL has said it should take 45 to 60 days to decide a PERM case, according to the preamble to its final rule in 2005.
Anderson: How long does the PERM process actually take?
Alanis: Currently, it takes approximately two years to complete the PERM process. It takes six months to obtain a Prevailing Wage Determination, or PWD, 60 days minimum for the labor market test and 13 months or more for the DOL to approve the case. If there is an audit, the process will take several additional months.
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Anderson: What does the PERM process involve?
Alanis: First, a company must identify the permanent full-time job opportunity, including a job title, job description and minimum requirements for the sponsored position, and verify and document that the foreign national meets all qualifications for the position.
Second, before filing a PERM application, employers must obtain a Prevailing Wage Determination from the DOL’s National Prevailing Wage Center. The prevailing wage is the average wage paid to similarly employed workers in the area of intended employment. The employer must offer the foreign worker at least the prevailing wage rate for the sponsored position.
Third, employers must conduct recruitment for the sponsored job opportunity to test the U.S. labor market for able, willing, qualified and available U.S. workers. That is the heart of the PERM process. The recruitment involves advertising in multiple DOL mandated mediums. Based on strict regulatory timelines, it will take at least 60 days for employers to complete recruitment. However, the recruitment process often exceeds 60 days. For example, employers may have to conduct interviews beyond 60 days if they receive resumes from U.S. workers.
Fourth, after completing recruitment, the employer will file the PERM application on Form 9089 electronically through the Foreign Labor Application Gateway system. An employer can only file the PERM application for a foreign national if it found no able, willing, qualified, and available U.S. workers for the position after conducting good faith recruitment.
Fifth, after the PERM application is submitted, the DOL reviews it to determine whether the employer meets all PERM requirements. The DOL either approves, denies or requires a PERM audit.
Anderson: What are the negative impacts of the current process?
Alanis: Increased PERM processing times have burdened employers and foreign nationals. A significant portion of PERM beneficiaries are H-1B professionals. H-1B status can only be extended beyond the six-year limit if the green card process has started. The PERM delays often prevent foreign nationals stuck in the green card backlog from timely filing an extension beyond the six-year limit. While waiting for a PERM approval, a foreign national may need to stop work and, many times, even depart the United States.
Many of these individuals have children who attend school in the U.S. and must choose whether to uproot their family. Delays in the PERM process also burden H-4 dependent spouses, who can obtain employment authorization based on the H-1B holder’s approved I-140 petition. PERM delays affect foreign nationals whose priority date is current because, without an approved PERM application, they are prevented from filing for adjustment of status. That may lead to a missed filing opportunity if dates retrogress.
Anderson: Can you explain the PERM delay lawsuit your firm filed?
Alanis: The anticipated timeframe in 2005 of 45-60 days has turned into a 13-month turnaround with no real improvement in sight. These unreasonable and systematic delays have caused harm to employers and beneficiaries of PERM applications. The Administrative Procedure Act allows litigants to challenge a government agency’s unreasonable delay.
Our team recognizes the hardship PERM delays have caused and filed a lawsuit to hold the DOL accountable for their inaction. Our claim is straightforward: DOL’s PERM delays on unaudited applications are unreasonable after 60 days. Therefore, the plaintiffs in our lawsuit request the DOL to make expeditious decisions on their applications based on the original intent of the PERM program.
Anderson: Would the DOL allow employers to pay premium processing fees for faster adjudication of PERM cases, similar to how employers seek to manage delays with U.S. Citizenship and Immigration Services?
Alanis: A premium processing option would be a great resource, but the DOL cannot offer one without authorization from Congress to charge fees for PERM. The DOL has requested the concept of user fees multiple times with no progress in that area.
Anderson: What advice do you have for clients to avoid Department of Justice lawsuits, such as those against Apple and Facebook, when companies follow DOL’s PERM regulations but are accused of discriminating against U.S. workers?
Alanis: Considering the recent cases involving Apple and Facebook, employers should understand the interplay between PERM regulations and anti-discrimination laws. Simple adjustments to an employer’s PERM recruitment process to more closely align with their standard recruitment procedures may help employers avoid hefty civil penalties.
Employers should review their PERM recruitment processes to determine whether the best methods are being used that more closely mirror their non-PERM recruitment processes within the limitations of the PERM regulations. Employers should also consider employee training on PERM regulations and anti-discrimination laws. In doing so, employers should work with a qualified immigration attorney to help navigate this complicated process. Additionally, employers who use third-party companies to post PERM advertisem*nts should discuss these issues with their provider to ensure compliance.
Anderson: NFAP and other organizations have urged placing more occupations on the Schedule A list, exempting those cases from the PERM process. Would that help?
Alanis: There are definitely benefits to expanding the Schedule A occupational list, which has not been expanded in decades. An employer wanting to hire a foreign national for a Schedule A occupation is not required to test the U.S. labor market or file a PERM application with the DOL. Instead, the employer can bypass the PERM recruitment process and apply for Schedule A designation by submitting an uncertified PERM labor certification application to the USCIS with an I-140 petition. This is cost-effective for employers and benefits foreign nationals stuck in the green card backlog.
An employer must still obtain a prevailing wage determination, but they will not have to wait 13 months or more for labor certification. That would allow foreign nationals to obtain an approved I-140 faster to lock in their priority date and utilize the approved I-140 to extend their H-1B status beyond the six-year limit. Faster processing of an EB-2 or EB-3 petition through Schedule A will reduce the chance of a missed adjustment of status filing opportunity if a foreign national’s priority date is current.
Anderson: What reforms would you like to see in the PERM and employment-based immigration system?
Alanis: The DOL must reevaluate its process and utilize the current technology available to ensure timely adjudication of applications. The DOL should also revise its regulations to include updated recruitment requirements. For example, requiring an employer to spend thousands of dollars on print newspaper advertisem*nts is nonsensical and not the best method to test the U.S. labor market in keeping with the spirit of the regulations.
The DOL should also address the transition of numerous employers to remote-only operations and incorporate revised guidance on telecommuting. The DOL must also prioritize enhancing transparency by providing clear and straightforward guidelines when major changes or updates occur. For instance, although the DOL has implemented a new Form 9089 and a new filing system under the Foreign Labor Application Gateway or FLAG, the agency has yet to create internal guidelines on how its staff will adjudicate these applications.
Removing the per-country cap would create a more equitable system where foreign nationals are granted green cards on a first-come, first-served basis. Congress can also increase the number of annual employment-based visas available each year to account for the changing demand in the U.S. labor market. The annual limits were set in 1990 and Congress has kept them the same.
Congress can make significant progress in reducing the green card backlog by establishing that family (spouse and children) of employment based green card beneficiaries are not counted against the annual quota. Exempting spouses and children from the annual cap would effectively double the 140,000 immigrant visa cap. Finally, Congress or USCIS should allow beneficiaries of an approved I-140 petition to obtain employment authorization. That would allow greater mobility and job flexibility while waiting in the green card backlog.
Immigrants are valuable to the nation and part of America’s history and tradition. They deserve to be treated with respect and dignity.
