The past couple of years have resulted in significant changes in how individuals view their employment and the benefits they derive from it. Both employers and employees are rethinking their needs and attempting to adjust to a shifting job market. The “Great Resignation” in 2021 saw employees leaving their jobs in large numbers and looking for better opportunities elsewhere. For employers seeking to hire and retain talented workers, it has led to a re-evaluation of what they can offer to remain competitive.
When an employer sponsors a foreign national for a nonimmigrant visa, one of the considerations that needs to be addressed are the long-term plans for this employee. Does the company have a permanent need for this individual? Can the company justify the time and costs associated with keeping the individual work authorized? From the employee standpoint, whether the company is willing to sponsor the employee for a green card is likely a driving force in their decision to accept an offer of employment or stay with the company in the long term. Generally, the path to a green card involves three steps and begins with the labor certification process. Historically, an employer may have elected to wait to start this process, opting for a probationary period before committing to the time and expense of green card sponsorship. However, with a changing market and considerable processing delays, the timeframe for starting this option may be sooner than previously anticipated, especially if the employer needs to account for potential expiration dates of an employee’s work visa and whether or not extensions of that visa are possible.
For employers who provide green card sponsorship, the first step in the process is usually the PERM application filed with the Department of Labor (“DOL”). Originally established in the 1970s and modernized in March 2005, the PERM process involves a test of the labor market to determine whether there are able, willing, and qualified US workers, allowing the Department of Labor to certify that there will be no adverse effect on US workers if an employer is allowed to sponsor a green card for the employee. Under the PERM process, the employer must complete several recruitment steps within the 180 days prior to filing the PERM application.
Prior to or during the recruitment process, the employer must obtain a prevailing wage determination (“PWD”) from the Department of Labor. The PWD is meant to ensure that the employer is offering at least the prevailing wage for the job opening, based on the education and skill requirements for a particular job. The PWD must be issued before the PERM application is submitted. In the early days of PERM, this determination could be obtained in a day and the requisite recruitment steps could be completed well within the 180 days. However, those days are long gone. Based on numbers released by the DOL in September 2022, it can take nine or more months just to get the PWD which pushes back when the employer can begin the required recruitment.
Unfortunately, the processing delays do not stop there. Even when a PERM is filed it is currently taking over six months for the DOL to complete its review and that is if a case isn’t audited. Audited cases can pend for an additional two to three months. All this means that the PERM process alone can take well over a year to complete, and that’s if there are no additional delays.
According to the DOL’s budget request for FY 2023, between 2016 and 2020, the Department lost 14% of its staff across various agencies causing delays in processes and investigations. For FY 2023, the DOL requested additional funding for new staff, as well as its ongoing project to modernize its IT platforms. In August 2022, the DOL announces it had received a $7.2 million Technology Modernization Fund (TMF) investment to update its IT systems with an aim to improve permanent labor certification services by increasing efficiency, improving customer experience, and addressing fraud and security risks. However, no timeframe for when this project will be completed or how exactly it will address the current processing delays have been shared.
In light of these considerable processing times, what can employers do? The first and simplest action an employer can take is to start early. This means thinking about whether green card sponsorship is a possibility at the interviewing and hiring stages. Employers can work with immigration counsel to analyze a foreign national’s immigration history and establish short- and long-term immigration options, including alternative work visas or green card options. This step also serves to identify deadlines to meet in order to maintain an employee’s work authorization while the PERM and green card process are pending.
It may be helpful to analyze whether there are “standard” positions for which the employer frequently recruits. Standard positions would be those where the basic job description, minimum education, and skills requirements would remain the same across multiple recruitment cycles and applicable to multiple employees. This may involve an internal audit of the organization’s positions and hiring practices. Depending on the size of the organization, this can be time-consuming, but the potential benefits may make it a worthwhile endeavor. Identifying these standard positions can save time in the drafting and recruitment stages of the process. It has the added benefit of ensuring consistency in the process and equal treatment among similarly situated employees.
Despite the long processing times, the PERM and green card process remains an attractive choice for both employers and employees. The process allows employers to recruit and retain talented workers where insufficient numbers of US workers are available. This is not only a benefit for that employer but for our overall workforce.
The material contained in this article does not constitute direct legal advice and is for informational purposes only. An attorney-client relationship is not presumed or intended by receipt or review of this presentation. The information provided should never replace informed counsel when specific immigration-related guidance is needed.
Reprinted with permission from the November 9, 2022 edition of The Legal Intelligencer© 2022 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. ALMReprints.com – 877-257-3382 – reprints@alm.com.
