Key changes in process of first step to US green card could lead to delays

The Program Electronic Review Management (PERM) is a crucial initial step in the process of obtaining a US employment-based green card or permanent residence. It is a system designed to obtain labor certification for thousands of Indians working in the US on work permit visas, such as the H-1B, through employment-based preference categories EB-2 and EB-3. Before an employer in the US can file a green card petition for a foreign worker with the US Citizenship and Immigration Services, they must obtain an approved labor certification from the US Department of Labor (DOL).

Indians waiting for their green card processing have expressed concerns about the PERM system, which has become increasingly time-consuming and unpredictable. According to a recent notification from the Department of Labor, the PERM process now takes approximately 8.5 months to complete. Furthermore, the migration of PERM to an online system by the DOL adds complexity and potential chaos to the process.

“The PERM labour certification is a critical part of the journey to an employment-based green card for many foreign nationals, including most Indian nationals with H-1B visas. Essentially a labour-market test, PERM is often the first step on the road to US permanent residence based on employment. While the PERM process is employer-driven, it is directly overseen by the United States Department of Labor, which must determine and certify whether there are any US workers able, willing, qualified, and available to accept the job opportunity in the area of intended employment,” explains Vic Goel, managing partner at the law firm Goel & Anderson LLC, based in Virginia.

The certification of a PERM application by the Department of Labor (DOL) also serves as confirmation that the employment of a foreign worker will not have a negative impact on the wages and working conditions of similarly employed US workers. While the overall timeframe for the PERM process is typically 9-12 months, with no additional delays specifically for Indian nationals, significant preparation is necessary before submitting the application, according to Goel. He advises, “Lengthy government processing times are likely to continue or worsen in the months ahead. Employers and employees are well advised to anticipate the possibility of delays and an exacting process that emphasises form and substance”.

The recent announcement by the DOL regarding the migration of PERM to an online system has raised concerns among Indians holding H-1B visas in the US. The PERM labour certification, which is necessary for thousands of Indians who qualify for the green card petition under the EB-2 and EB-3 categories, is a very strict, onerous and time-consuming process. The DOL recently announced changes in the ETA-9089 form (part of the PERM process) and moved the process to their Foreign Labor Application Gateway (FLAG) platform. These are considered to be significant changes in the preparation and filing of the application that is the basis for employment-based green card, says Poorvi Chothani, an immigration attorney based in Mumbai. However, it remains uncertain whether the consequences of these system updates will be positive or negative.

As part of the recent changes, the DOL has revised the Form ETA 9089, specifically eliminating a key explanatory field on the form and requiring more detailed information about job requirements, work location, and the qualifications of the sponsored employee.

“The big change to the PERM process is the June 1, 2023, migration from the legacy portal used for preparing and submitting PERM applications to a new system, FLAG, which is causing much anxiety for potential immigrants, their employers, and even lawyers. DOL has indicated that it intends to complete adjudication of all cases filed through the legacy system before it begins adjudicating cases filed in the FLAG system. Thus, while the substantive rules and adjudication standards have not changed, key elements of the form and required data have been revised, and it will be well into 2024 before we know how DOL interprets the information it is now collecting,” explains Goel.

Goel believes that this situation will amplify the anxiety experienced by Indian applicants, considering that the PERM process is meticulous and even a small drafting error or denial can result in significant delays or ineligibility, especially for applicants who are nearing the end of their maximum stay period in the H-1B or L-1 visa categories.

Here are the stages of the PERM process:
1. US employers must obtain an approved labor certification from the Department of Labor (DOL) before filing an immigration petition (green card) for a foreign worker with the US Citizenship and Immigration Services (USCIS) in most EB-2 and EB-3 categories.
2. To apply for labor certification, an employer must submit an ETA Form 9089 to the DOL.
3. The Department of Labor (DOL) is responsible for certifying to the US Citizenship and Immigration Services (USCIS) that there is a lack of available and qualified US workers who are willing to accept the job offered to the immigrant worker at the prevailing wage in the intended employment area. Additionally, the employment of the foreign worker should not negatively impact the wages and working conditions of similarly employed US workers.
4. If the recruitment process does not yield a sufficient number of qualified and willing US applicants (citizens or permanent residents) for a position, the employer can proceed with submitting a PERM application.
5. Previously, the DOL expected electronically filed PERM applications to be adjudicated within approximately 45-60 days, unless the case was audited. However, the current processing time for unaudited PERM applications is around 90 days.
6. In the event that the case is selected for auditing by the DOL, the employer must submit all requested documents within 30 days.
7. Once the labor certification is approved, the employer should file an immigrant petition with the USCIS before the expiration of the labor certification, which has a validity period of 180 days. If not submitted within this period, the certification expires.