When a U.S. employer sponsors a foreign worker for permanent residency, one of the first major steps is obtaining a Labor Certification through the PERM process.

PERM, which is administered by the U.S. Department of Labor (DOL), is a complex and highly regulated process designed to protect the U.S. labor market. Before a PERM application can be submitted, employers must complete several procedural requirements and demonstrate that hiring the foreign worker will not negatively affect U.S. workers.

The primary purpose of PERM is to test the U.S. labor market and confirm that there are no able, willing, qualified, and available U.S. workers for the offered position.

One of the earliest and most important steps in the PERM process is obtaining a Prevailing Wage Determination (PWD).

What Is a Prevailing Wage Determination?

After the employer finalizes the job title, duties, requirements, and work location, a Prevailing Wage Request is submitted to the DOL.

According to the DOL, the prevailing wage is the average wage paid to similarly employed workers in the area of intended employment.

The issued prevailing wage becomes the minimum wage the employer must be prepared to offer for the sponsored position. The purpose of this requirement is to ensure that hiring a foreign worker does not adversely impact the wages or working conditions of U.S. workers.

When Should Recruitment Begin?

Currently, Prevailing Wage Determinations are taking around 3 months to process. During this waiting period, employers must decide whether to:

• begin PERM recruitment while the PWD is pending; or
• wait until the PWD is issued before starting recruitment.

Under PERM regulations, both options are permitted.

If recruitment begins before the PWD is issued, the PERM application cannot be filed until the PWD is received, and the filing must occur while the PWD remains valid.

If recruitment begins after the PWD is issued, the PERM application must be filed within 180 days of the earliest recruitment effort.

Each approach has advantages and risks.

Advantages of Starting Recruitment While the PWD Is Pending

One of the biggest benefits of starting recruitment early is saving time. The PERM recruitment stage requires a minimum of 60 days due to:

• the mandatory 30-day State Workforce Agency job posting; and
• the required 30-day quiet period following recruitment.

By beginning recruitment while the PWD is still pending, employers may reduce the overall PERM timeline by approximately two months. For employers dealing with tight immigration deadlines, expiring work authorization, or other time-sensitive issues, saving 60 days can be extremely valuable.

Advantages of Waiting Until After the PWD Is Issued

Although early recruitment may speed up the process, many employers choose to wait until the PWD is issued before beginning recruitment.

Reduced Risk of Wasted Resources

If the employer later decides not to move forward with sponsorship after the PWD is issued, waiting to recruit avoids unnecessary advertising costs and administrative work.

Better Timing Control

Timing issues are another major consideration. If recruitment begins before the PWD is issued, the employer must:

1. complete all recruitment steps;
2. receive the PWD; and
3. file the PERM application before the PWD expires.

PWDs are valid for at least 90 days, sometimes more, but delays can create problems. If the recruitment process is not completed in time, the employer may need to restart the process and file a new prevailing wage request.

However, when recruitment begins after the PWD is issued, the recruitment efforts generally remain valid even if the PWD later expires, as long as at least one recruitment step began during the PWD validity period.

Ability to Address PWD Errors

Sometimes employers believe the prevailing wage determination was issued incorrectly and needs to be revised in some manner. In those situations, the employer may file a Request for Reconsideration.

Requests for Reconsideration can significantly delay final PWD issuance. Since PERM recruitment efforts are valid for only 180 days, recruitment that begins too early may expire before the corrected PWD is issued. If that happens, the employer may need to redo all recruitment efforts.

Compliance with Pay Transparency Laws

Another growing concern involves state and local Equal Pay Transparency (EPT) laws. Many jurisdictions now require employers to disclose salary ranges in job advertisements. If the DOL issues a prevailing wage that is higher than expected, previously posted advertisements, including in the Notice of Filing, may no longer comply with applicable wage disclosure requirements.

As a result, employers may need to repost advertisements and repeat recruitment efforts, leading to additional delays and costs.

Conclusion

The Prevailing Wage Determination is a critical part of the PERM labor certification process, and the timing of recruitment can significantly affect the overall strategy.

Beginning recruitment while the PWD is pending may shorten the PERM timeline by approximately 60 days. However, this approach also carries risks related to timing, recruitment validity, wage accuracy, and potential re-advertising requirements.

Waiting until the PWD is issued provides greater certainty and allows employers to confirm wage requirements before beginning recruitment efforts. This approach may help reduce compliance risks and avoid unnecessary delays or duplicate advertising expenses.

Ultimately, the best strategy depends on the employer’s timeline, business needs, and risk tolerance. Careful planning and guidance from experienced immigration counsel can help employers navigate the PERM process more effectively.

For over 25 years, Reddy Neumann Brown PC has focused solely on U.S. employment-based immigration, and works with employers to establish best practices when navigating the PERM labor certification process. If you are in need of a U.S. work visa or permanent residency, speak with one of our immigration lawyers. Please contact us online, call our Houston business immigration office directly at 713-953-7787 or schedule a consultation.

By: Jessica Palarca

Jessica Palarca is an attorney in Reddy & Neumann’s PERM Labor Certification Department where she assists clients in the beginning stages of the green card process.