Introduction
Throughout our lives, we’ve always heard the quote, “Timing is Everything.” In the practice of immigration law, we have come to learn the hard way that this is true. Knowing how that timing works is essential for the PERM process because it is important to make time work in favor of the sponsoring employer and the foreign worker. Here are some timing considerations to keep in mind when preparing and filing a PERM.
When to File?
Ideally, employers should begin the PERM process at least before the start of the foreign worker’s fifth year in H-1B status. This way, you have about one year to account for long Prevailing Wage Determination (PWD) processing times, any delays in the advertising process, the subsequent “quiet period,” and for any delays arising directly from the employer and employee.
Timing is critical because if there are any delays in filing the PERM application when the foreign worker is close to reaching the six-year limit in H-1B status, the ability to continue to extend H-1B status is jeopardized. As a reminder, the H-1B can only be extended beyond the six-year limit if the foreign national is a beneficiary of an approved I-140 whose priority date is not current, or if at least 365 days have passed since the filing of the PERM.
Drafting the Job Description
Drafting the job description and requirements often takes the most time in preparing a strong PERM application. To properly craft a job description, an attorney must review the employer’s minimum job requirements, the foreign worker’s qualifications, work experience letters, and educational documents. No matter how much the employer and foreign worker will urge you to use the information they have provided on a questionnaire, remember one thing – you must see it to believe it! If the foreign worker tells you that they have a degree in Computer Science, you need proof. A “degree” in “Computer Science” may actually be a three-year degree or a certification. Therefore, it is important to confirm through documentation that the foreign worker possessed the required qualifications prior to beginning employment with the employer while at this stage of the process.
PWD and Advertising
With the DOL taking nearly three months to issue a PWD, employers and foreign workers may urge you to proceed before DOL issues the PWD. However, it is a best practice to wait for the PWD to be issued by the DOL and then get written confirmation from the employer that they are ready to proceed with the advertising stage. That said, if a foreign worker’s H-1B status is expiring soon, strategy may dictate that you file the PWD and run the recruitment simultaneously. If you go this route, you must have an idea what the prevailing wage will be for the position because the law requires offering the higher of the actual or prevailing wage. If the PWD comes back higher than that used in the recruitment, the employer must repost the affected recruitment. Also, if you begin recruitment before the PWD is issued, you must be sure to complete recruitment and file the PERM before the PWD expires.
Department of Labor PERM Account
Another aspect to consider is the creation of a DOL account to file the PERM application. A best practice is to have your employer client create the DOL account when you are first retained to begin the PERM process. The DOL can request extensive documentation to provide that a business exists, and this process can take several months, and there is no expedite process for clearing an employer through this mandatory process.
The Recruitment Period and Filing the PERM Application
Keep in mind that the PERM must be submitted within 180 days of the start of the first recruitment step, and can be filed no earlier than 30 days after the last recruitment step concludes (the exception is in the professional recruitment context, where one of the three additional recruiting steps can take place in the 30 days before filing). Maintain a log of these dates with the deadline to file. Since PERM is a long process, it is quite easy to miss a deadline if you are not keeping track of which ads are running and how long they are running for. The clock for filing the PERM begins once you have placed the first advertisement. Once the first advertisement has run, you have 180 days to submit the PERM application to DOL if the recruitment is started after the PWD is issued. However, if you filed the PWD and began recruitment simultaneously, you must be prepared to file the PERM before the expiration date of the PWD.
Audit
It is also important to set expectations with regards to audits, which can add several months to the overall processing time. It is a best practice to use the DOL’s PERM case management system to upload documents in response to the audit (see AILA Doc. 18011661).
Conclusion
Understanding the importance of timing while preparing and filing the PERM is of utmost importance. By thoroughly learning about the timeliness issues that may arise, you can best counsel your clients on how to successfully navigate this often-stressful process in the most efficient way possible.
Source: AILA Doc. No. 18011630.
