90-Day Prevailing Wage Determinations
In order to file a PERM application, the employer must obtain a Prevailing Wage Determination (PWD). In addition, the employer must test the U.S. labor market through various recruitment methods for able, willing, qualified, and available U.S. workers. If no such U.S. worker is found through good faith recruitment, the employer can file a PERM application on behalf of the beneficiary.
Generally, the employer has 2 options when deciding when to begin the recruitment process. The employer can begin advertising (1) while the PWD is pending or (2) after the PWD is issued.
Advertisements are valid for 180 days. PWDs are valid for a time period ranging from 90 days to 1 year, depending on when it is issued. PWDs issued between April 2nd and June 30th are valid for 90 days. PWDs issued after June 30th are valid through June 30th of the following year.
Example 1: A PWD issued on 05/14/2022 has an expiration date of 08/12/2022.
Example 2: A PWD issued on 01/12/2022 has an expiration date of 06/30/2022.
If an employer begins advertising while the PWD is pending, then the PERM application must be submitted by the expiration date of the PWD or by the expiration date of the advertisements, whichever is earlier. However, if all advertisements begin after the PWD is issued, then the PERM application must be submitted by the expiration date of the advertisements.
PWDs are currently taking around 5 to 5.5 months to be issued. This means that PWDs submitted around November 2021 through January 2022 are likely to be issued with the shorter validity period of 90 days.
If an employer expects a PWD to be issued between April 2nd and June 30th, it may be best for the employer to begin advertising after the PWD is already issued. If advertising begins while the PWD is still pending, there will be a much shorter window to file the PERM application. In addition, if processing times for PWDs are especially long, there is a risk that the advertisements will expire before the PWD is issued. In that event, advertisements will have to run again which can be costly to the employer.
Example 3: The PWD is issued on 05/14/2022 and has an expiration date of 08/12/2022. The employer began advertising on 11/29/2021. The employer began advertising before the PWD was issued so the PERM application must be submitted by the expiration date of the PWD or by the expiration date of the advertisements, whichever is earlier. In this example, the deadline date to file the PERM application is based on the expiration date of the advertisements which is 05/27/2022. The employer has a very short window to file the PERM application (from 05/14/2022 to 05/27/2022).
Example 4: The PWD is issued on 04/28/2022 and has an expiration date of 07/27/2022. The employer began advertising on 02/09/2022. The employer began advertising before the PWD was issued so the PERM application must be submitted by the expiration date of the PWD or by the expiration date of the advertisements, whichever is earlier. In this example, the deadline date to file the PERM application is based on the expiration date of the PWD which is 07/27/2022.
Example 5: The PWD is issued on 05/14/2022 and has an expiration date of 08/12/2022. The employer began advertising on 05/15/2022. Since the employer began advertising after the PWD was issued, then the PERM application must be submitted by the expiration date of the advertisements which is 11/10/2022. The employer has a larger window to file the PERM application.
Because the PERM process can be tricky to navigate, it is always best to contact a qualified immigration attorney to help come up with the proper solution for each individual case.
By: Camille Joson
