Latest Updates on PERM Processing Times: Insights into Delays & Expectations
The Department of Labor (DOL) issued updated PERM processing times as of November 30, 2023 for PERM applications (also known as ETA Form 9089) and prevailing wage determination (PWD) requests. The updated processing times are as follows:
Prevailing Wage Determination Processing Times
According to the DOL, the National Prevailing Wage Center (NPWC) is processing PWDs that were filed in April 2023 for OES wages and February 2023 for non-OES wages (this includes private wage surveys). Further, the NPWC is processing redetermination requests submitted in May 2023.
Currently at Reddy & Neumann, P.C., we are seeing PWDs being issued in about 5-6 months.
PERM Processing Times
The DOL is processing PERM applications filed in December 2022 (and earlier). On average, the DOL is adjudicating PERM applications in approximately 346 days.
Further, the DOL is processing audits for PERM applications filed in August 2022. On average, processing times for audit review is 496 days. Therefore, if a PERM application was audited, expect an additional 5 months for adjudication. Also, the DOL is processing PERM reconsideration requests that were submitted in February 2023.
Currently at Reddy & Neumann, P.C., we are seeing PERM applications approved (if not audited) in approximately 11 to 12 months, which is consistent with the average processing times reported by the DOL.
Ongoing Delays in PERM Processing
PERM Processing times have drastically increased over the last few years with no signs of improvement for the future. On November 28, 2023, officials from the DOL’s Office of Foreign Labor Certification (OFLC) attended the annual immigration law conference held by the Practising Law Institute (PLI). OFLC indicated that as of September 23, 2023, the DOL had approximately 71,000 pending cases within the former PERM system, while 79,376 were in the current FLAG system, which now handles all PERM submissions as of June 1st.
Further, between Fiscal Year 2022 and Fiscal Year 2023, OFLC reported that the prevailing wage determination program saw a 10.5% increase in applications, while the PERM program experienced a 12% increase in applications. OFLC expects the increase in applications to continue. It was also reported that OFLC received a $2 million funding increase for FY2023, but inflation has eroded this funding. OFLC was able to add some positions, however this has not been enough to address the increase of applications received. Additionally, OFLC indicated that it reallocates resources from programs including PERM during the peak seasons of the H-2A and H-2B programs in order to meet regulatory deadlines.
This year the DOL implemented a new ETA Form 9089 and a new filing system, which could potentially lead to additional delays in processing PERM applications. In August 2023, Reddy & Neumann, P.C. submitted a Freedom of Information Act (FOIA) request concerning the new PERM application and its associated internal guidance/training materials. OFLC responded with the following:
“OFLC recently began accepting the new ETA Form 9089 in July 2023. However, the internal process has yet to be finalized, and we have yet to start processing cases submitted using the new form. Training materials, memorandums, internal guidance, power points, or similar material created by DOL regarding adjudication of the new ETA Form 9089 have yet to be created. Additionally, the Audit Process has yet to be developed; therefore, there is no internal guidance memorandum, or similar material regarding audit triggers for the new ETA Form 9089. Thus, OFLC is closing this [FOIA] request because our comprehensive search resulted in no records, and no other reasonable locations exist to search.”
Due to increased workload, insufficient funding, and the implementation of a new Form/filing system, we do not anticipate improvement in PERM processing times in the near future.
Long PERM processing times for both prevailing wage determinations and PERM applications is a major problem for employers and foreign workers. Therefore, remaining informed about PERM processing times is crucial for both employers and employees. Employers should plan to begin the employment-based green card process as early as possible to avoid potential issues with the foreign worker’s temporary work visa status and ability to work in the U.S. beyond the employee’s maximum period of stay. Also, those who qualify may want to explore alternative options beyond the PERM-based green card process. For example, EB-1A for Extraordinary Ability and the National Interest Waiver allow a foreign worker to self-petition and avoid the PERM labor certification process. As a reminder, PERM requires employer sponsorship and a test of the U.S. labor market by the company.
At Reddy & Neumann, P.C. our team is dedicated to helping our clients navigate the complex PERM labor certification process and the challenges long PERM processing times continue to cause. Our litigation team at Reddy & Neumann, P.C. understands the hardship PERM delays have caused both employers and their employees and have therefore filed a lawsuit to hold the DOL accountable for their unreasonable delay. For more information, visit: https://www.youtube.com/watch?v=izjgEnNbdkw.
As an immigration law firm that has been serving our clients for over 25 years, our team is here to offer prompt, practical, and professional advice, whether you’re a company seeking to hire top talent to grow your business or a foreign worker wanting to develop a career in the United States. If you have any questions, please schedule a consultation with one of our attorneys at https://appointments.rnlawgroup.com/.
Krystal Alanis is a Partner at Reddy & Neumann, P.C. with over 10 years of experience practicing U.S. business immigration law. Krystal manages the firm’s PERM Labor Certification Department, where she oversees all EB-2 and EB-3 employment-based green card matters. Krystal guides clients from a variety of industries through the maze of the PERM Labor certification process and has handled thousands of PERM applications throughout her career. Krystal guides employers through the I-140 and Adjustment of Status process, and assists clients with temporary work visas. Further, she oversees the firm’s I-9 compliance team where she advises employers regarding Form I-9 Employment Eligibility Verification requirements and conducts internal audits of a company’s I-9 records, processes, and procedures. Additionally, Krystal represents clients in Form I-9 U.S. Immigration and Customs Enforcement (ICE) inspections (Notice of Inspection). Krystal successfully settled a claim with ICE over Form I-9 substantive paperwork violations that led to an 88% reduction in civil fines for her client.