Inconsistent Processing Times for PERMs/I-140s

PERM (Program Electronic Review Management) labor certification is required for employers who want to hire employees permanently. Filing the PERM and Form I-140 are necessary steps to getting an employment-based green card.

However, PERM Labor Certificate and I-140 processing times have varied dramatically over the years. Those times continue to be inconsistent today, depending on how you submit the application and various other factors. The total processing timeframes have ranged from six months at best to almost two years if you use regular processing procedures.

Prevailing Wage Determination from DOL

An employer must file a prevailing wage determination request from the U.S. Department of Labor (DOL) as part of the PERM process. Typically, it is best to receive the prevailing wage determination back from DOL before proceeding further. However, DOL’s processing time can vary considerably, depending on how many requests are pending and the area in which the request is made. As a result, getting the prevailing wage determination from the DOL can take anywhere from a few weeks to a few months.

Job Recruitment

As part of the PERM process, the employer must post the job in various places and place job ads in newspapers for at least 30 days. In addition, the employer must allow at least 30 days for individuals to respond to the ad. Therefore, this process will take a minimum of 60 days, but it will likely take longer, as the employer must hold interviews and follow-up interviews if needed.

Filing the ETA-9089 PERM Application

Once the job recruitment phase is complete, the employer can file the ETA-9089 PERM application. When the employer submits the application online, and the application is not subject to an audit, the DOL typically will adjudicate the application within six months of the filing date. However, current processing dates are slightly longer; as of December 31, 2022, DOL reported that it was taking the agency an average of 255 days to review PERM applications and 356 days to review PERM applications subject to an audit.

However, several issues can cause major delays in the processing of the application, as follows.

Telephone Verification

First, when an employer files a PERM application, they should receive an acknowledgment email from DOL with a sponsorship questionnaire. If the employer fails to respond to the questionnaire within one week, then a DOL representative will attempt to reach the employer by phone on no more than three occasions. Phone verification can cause a big delay in the processing time for the application.

Audits

Next, a PERM application may be subject to either a random or targeted audit, significantly increasing processing time. A random audit can result in any PERM application being selected for audit; there is no particular reason why DOL audits these applications.

On the other hand, targeted audits may be triggered by various factors, such as:

• • Jobs requiring less than a bachelor’s degree

• • The beneficiary owning stock in the company

• • The familial relationship between the beneficiary and the employer

• • The lack of qualifications of the beneficiary for the position

• • Jobs requiring a degree without work experience

An audit is typically issued within six months of filing. The employer receives an audit letter and has 30 days to respond. Once the DOL receives the employer’s response, it can take nine or more months for the DOL to issue a decision, thus adding ten months or more to the PERM processing time.

Supervised Recruitment

In some cases, DOL determines that an employer must conduct additional recruitment measures that it directly supervises. When this situation occurs, the employer must send a draft of a job advertisement to DOL for approval. DOL may take anywhere from a couple of weeks to a couple of months to approve the advertisement. The supervised recruitment process then involves various other steps, none of which have standardized timeframes. According to the DOL, the supervised recruitment process for a “clean” application, on average, takes 180 days. However, if the application is not “clean,” or the employer must provide additional information or clarification, it may take more than 180 days. As a result, supervised recruitment can significantly add to the PERM processing time.

Form I-140 Processing

Form I-140 is the only step of the employer-based green card process for which an employer can request premium processing. If an employer pays the extra fee and opts for premium processing, USCIS will process Form I-140 within 15 calendar days. In contrast, the average regular processing time for Form I-140 in 2022 was 230 days.

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