Ideally, the process of obtaining a U.S. labor certification is supposed to take as little as 90 days, from the day the employer begins preparing the application to the day the U.S. Department of Labor (DOL) decides on it. (By way of background, labor certification is a determination from the DOL that the would-be immigrant’s future employer has proven that there are no able and qualified U.S. workers available and willing to take the job.)
Historically, however, the process has taken much longer. In fact, shortening the length of time required has become an ongoing project for DOL. Two to three years of waiting had become typical in the past. This led, in 2005, to DOL changing its processing system to something called PERM (Program Electronic Review Management). The PERM system was meant to allow the employer to file a labor certification application in as little as two months. Then DOL, in turn, would supposedly make its decision within 45 to 60 days.
Unfortunately, the current reality is that it tends to take between about six months and a year to obtain a labor certification, with most of that time taken up by the employer’s preparatory activities. This time period can be even longer if DOL decides to conduct an audit on the case.
There’s no getting around the fact that a certain amount of waiting is either inevitable or is literally built into the process. For starters, the employer must develop a job description and list of minimum requirements, and decide what steps it will take to recruit U.S. workers to apply for the job. It must also look carefully at the immigrant’s education and employment history to make sure that he or she is truly qualified for the job. This alone can take employers a few months.
Next, the employer should request a prevailing wage determination (PWD) from DOL, so that it can make sure to offer a wage that meets or is higher than what is usually paid for that position in that area. (Paying a sufficient wage is a condition of getting an approved labor certification.) Processing of PWDs can take the DOL between a few weeks and a few months – or even longer if the employer disagrees with the wage determination. In that case, the employer might decide to request a redetermination or file a new request. The new request will normally include an adjusted job description or minimum requirements.
It is usually best to wait for the PWD and resolve any wage issues before beginning recruitment. To save time, however, an employer may decide to go ahead with recruitment before the PWD is completed. But a PWD must be obtained, and remain valid, either when recruitment starts or when the employer files the labor certification application.
Next, the employer can begin publicly advertising and recruiting people for the job that it wants to offer the intending immigrant. Here’s another built-in waiting period: The employer must place a job order with the state workforce agency (SWA) serving the area of intended employment for a period of 30 days. And of course, the process of reviewing applications, interviewing potential hires, and so forth is inherently time-consuming.
After recruitment begins, the employer cannot file the labor certification within fewer than 60 days or more than 180 days from the first day of recruitment. Also, before filing the labor certification application, the employer must allow a 30-day “cooling off” or “quiet” period, during which time it must post no job notices, nor undertake any other recruitment with the exception of one of the three “additional” recruitment steps required for hiring professional workers.
Adding all this up, if an ambitious employer wants to file the labor certification within 60 days, it will need to post job notices and finish almost all its recruitment efforts within a mere 30 days – and hope that huge numbers of people don’t apply. Once recruitment is completed and the 30-day cooling off period has ended, the employer can at last file the labor certification with the DOL.
It generally takes most employers between six to nine months to complete all the steps and submit the labor certification application. After that, how long it will take for the application to be processed can be gauged by looking at the DOL’s web site at http://icert.doleta.gov/ and clicking “PERM Processing Times” or entering your case number.
If DOL does decide to audit the file, it will give the employers 30 days in which to respond. If it denies the labor certification, the employer will have 30 days within which to file an appeal. If the ground for the appeal is a government error, DOL will adjudicate the appeal within a few months. Otherwise, DOL is more likely to spend over two years processing the appeal.
