When Should an Employer Start the PERM Process for H1-B Employees?

The PERM process is crucial for H1-B visa holders aiming to obtain an employment-based green card in the United States. Employers play a vital role in initiating and managing this complex process, which requires careful timing and adherence to strict regulations. Understanding when to start the PERM process is essential for ensuring that valuable employees can continue working in the U.S.

If your company employs an international workforce, the experienced immigration attorneys at Scott D. Pollock & Associates, P.C. can guide you through the PERM process from start to finish.

What to Know About the PERM Process

PERM (Program Electronic Review Management) is the first step an employer takes in obtaining an employment-based green card for a foreign worker. The permanent labor certification program, commonly known as PERM, is administered by the Department of Labor (DOL) and assesses whether hiring a foreign worker will negatively impact U.S. workers.

Understanding When to Start the PERM Process

Ideally, employers should begin the PERM process 18-24 months before the employee’s H1-B visa expires. This early start is recommended because the PERM process can be lengthy and unpredictable. Starting early provides a buffer for any delays and complications. For the most up-to-date processing times, consult the Department of Labor website.

There is no minimum employment period before starting the PERM process, but employers should be confident in their long-term employment needs.

In cases where the H1-B visa is close to expiring, start the PERM process immediately. Consider contacting an immigration attorney who can potentially provide other alternatives. Remember that an H1-B visa is usually valid for three years but can be extended for up to three more years. If the employee has already maxed out their H1-B time, ask an immigration attorney about options for extending a stay or changing a status.

Categories of Employment-Based Green Cards that Require PERM

There are two categories of employment-based green cards that require PERM:

1. EB-2 Employment-Based Second Preference: Professionals with advanced degrees or exceptional ability in the arts, sciences, or business. Except for those with a National Interest Waiver (NIW).
2. EB-3 Employment-Based Third Preference: Skilled workers capable of stepping into a job requiring at least two years of training or professionals with a Baccalaureate degree.

PERM Requirements

The PERM process involves providing key information that proves hiring a foreign worker will not negatively impact U.S. workers. An employer must file Form 9089 Application for Permanent Employment Certification to obtain permanent labor certification. Aside from general employee and employer information, the form also requires proof that:

• The job listing was made available to United States workers.
• The wages offered to the potential employee are greater than or equal to the “prevailing wage” for the given position, according to the Department of Labor.
• Any U.S. citizen applicants were denied for lawful reasons.

Consult an Attorney to Guide You Through the PERM Process for H-1B Employees

Permanent labor certification regulations are complex, but a qualified immigration attorney understands the intricacies of the system. Attorneys can also help time the process optimally while avoiding any errors that could hold up the process. Further, immigration attorneys can suggest alternative options if PERM is not ideal and can assist if any appeals become necessary. Having a knowledgeable attorney means a better chance of retaining valuable employees.