GENERAL PROCESSING TIMEFRAME AND OUTLINE FOR PERM-BASED PERMANENT RESIDENCY

Introduction

There are generally three main steps to obtaining permanent residency (green card) in the U.S.
via the Alien Labor Certification process:

1. Alien Labor Certification (AKA “PERM”) (Form 9089)

a. The "Test of the Labor Market" administered by the Employer
b. Filed with the U.S. Department of Labor
c. Usually 9 to 18 months
2. I-140 Petition for Immigrant Worker
a. The Immigration Petition filed by the Employer
a. Filed with U.S. Citizenship and Immigration Services (USCIS)
b. Usually 6 to 9 months
3. I-485 Application to Adjust Status or Register Permanent Residence
a. The “Green Card Application” filed by the Alien
b. Filed with U.S. Citizenship and Immigration Services (USCIS)
c. Usually 5 to 8 months but varies widely for multiple reasons
d. Cannot be filed until visas are available based upon:
i. Priority Date - established on the date the PERM is filed
ii. Country of birth
iii. Preference Category

NOTE: It is virtually impossible to state with any degree of certainty the length of time it will
take for one to complete the permanent residency (adjustment) process. Below is an attempt to
provide a general outline of the overall processing timeframe for each component of the
process. However, please keep in mind that every case is different, as processing timeframes are
affected by specific educational and experience minimums for one’s job (preference category),
one’s country of birth, one’s priority date, availability of immigrant visas as controlled by the US
Department of State, and random audits and requests for evidence.

This is not meant to be a specific processing time estimate for a particular case. The average
processing times for each component of the process often vary so widely that a processing
timeframe/estimate cannot be given or relied upon. Moreover, some of these components can
be administered concurrently with other components but this will depend upon the individual
facts of each case.

PERM / Labor Certification Procedure

The first step in the PERM process is obtaining approval to initiate the green card process,
scheduling meetings and/or calls with company hiring managers, general counsel, Human
Resources (HR), HR business partners, supervisors, and executives. Discussions include financial
obligations, time and effort commitments, scheduling, and other subjects that come to bear on
the PERM process, most of which fall outside the purview of the alien.

This averages 1 week to 3 months.

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Gathering documentation and data to develop PERM-specific and PERM-compliant job
descriptions, advertisement text and recruitment plans. This entails many things, including
reviewing existing company job descriptions, company hierarchies, industry employment and
prevailing wage data, employer’s prior hiring practices for similar positions, and existing DOL
and USCIS petitions for similar positions (such as existing and/or previously filed H-1B petitions,
TNs, prior PERMs, etc.). If the employer’s job requirements appear more stringent than those
normally required, the attorney must explore the particular job requirements to determine if
they are necessary to perform the job duties in the organization. Some requirements are
removed or modified accordingly. This process involves a significant amount of review and
discussion, which often results in numerous emails between counsel and employer and between
counsel and government agencies such as DOL, State Workforce Agencies, prevailing wage
companies, industry experts, academic requirement and academic equivalency experts, etc.

This averages 2 weeks to 3 months.

Once the job description and minimum requirements are developed, the attorney works with
the alien to gather proof that he or she meets and/or exceeds the minimum education and
experience requirements set forth in the PERM. This usually entails obtaining very specific and
detailed employment experience letters and/or education credentials, education credential
evaluations, and proof of licensure and/or certification. Sometimes these items can be obtained
without the assistance of the alien or can be procured by the attorney later.

This averages 1 week to 2 months.

Once the job description and minimum requirements are developed, the attorney must also
obtain a prevailing wage determination (PWD) from the federalized prevailing wage system with
DOL. A PWD is required because the employer must offer at least the prevailing wage to ensure
that the application does not adversely affect the wages of U.S. workers. It is at this stage that
any issues with regard to the PWD must be raised by the employer. To obtain a PWD, counsel
completes the appropriate prevailing wage request form. As noted, the key elements in the
form are the job description and requirements. The labor department will normally rely on the
DOL’s Occupational Employment Statistics (OES) database to issue a PWD. DOL will assign a
wage based on the occupation and skill level of the position. Absent a collective bargaining
agreement, an employer may submit an alternative wage survey with their prevailing wage
request or challenge a PWD issued by the state office utilizing OES data. The alternative wage
data will have to be endorsed by the DOL prior to filing the application. The DOL rules outline
standards for alternative surveys, which counsel will discuss with the employer in the event that
use of such a survey is considered. A PWD is valid for a period of 90 days to one year after
issuance. The employer must file the PERM application or commence recruitment within the
validity period specified on the form. Sometimes multiple requests for an official prevailing wage
request must be made and/or requests for review and or redetermination. Depending upon the
time of year, this step could necessitate a delay in the process as new prevailing wage figures
are introduced by DOL and counsel must wait for figures to be released before finalizing
advertisement text and other recruitment plans.

This averages 45 days to 120 days and is subject to government processing times.

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Once the PWD is obtained and any outstanding issues are resolved, employer must take
recruitment steps to locate available and qualified U.S. workers prior to the filing of the
application. The DOL’s PERM labor certification application regulations require that a 30-day Job
Order be placed with the controlling State Workforce Agency that has jurisdiction over the
employment. Moreover, two print advertisements must be run for all labor certifications. The
general rule requires one ad on two different Sundays in the newspaper of general circulation in
the area of intended employment. For professional positions requiring experience and an
advanced degree, the second Sunday newspaper ad may be substituted with an ad in a
professional journal appropriate for the job offered. Both ads must be placed more than 30
days, but no more than 180 days, before filing. In addition, applications for professional
positions must include documentation of at least three additional recruitment steps, out of a list
of 10 possibilities. The three additional steps must be different. The attorney controls how this
will be done.

This averages 75 to 150 days.

The employer must also give notice of the planned filing of the labor certification to the
bargaining representative in the area of intended employment (if there is such a
representative). If there is no bargaining representative, the employer will be required to post a
notice about the job opportunity for 10 consecutive business days in a conspicuous place at the
location of employment. The notice will need to be posted between 30 and 180 days prior to
filing the application. Moreover, the employer must publish the notice in any and all in-house
media normally used to fill positions in the organization, in accordance with normal procedures
used for recruitment for similar positions in the organization.

This averages 21 to 30 days.

Once the recruitment is complete and the notice of filing has been posted, the employer must
wait through a federally required “Quiet Period.”

This takes 30 days.

The employer must review all responses to the recruitment. The employer will evaluate the
resumes based on DOL standards, which are discussed in detail with the attorney throughout
the process. Generally, applicants who could be qualified will need to be contacted by the
employer for the purposes of clarifying whether they actually have the minimum qualifications
for the job or to schedule an interview with the applicant. It is likely that at least some job
applicants will need to be interviewed and the interviews should be conducted by the employer
within a short timeframe.

This averages 3 to 15 days.

Once the interviews are complete, the employer must evaluate each of interviewed applicants
based on DOL standards. U.S. job applicants may be rejected only for reasons that the DOL
considers “lawful” and “job-related.” The employer prepares a recruitment report explaining
what recruitment steps were undertaken and why each job applicant was rejected.

This averages 3 to 15 days.

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The attorney must review all responses (applicants) to the print ads and other recruitment
steps. Attorney must also review all of the ads and recruitment materials to ensure they are in
compliance with applicable PERM regulations and have not been altered and/or are not missing
vital elements. The attorney must ensure that all ads and reasons for disqualification are in
compliance with PERM regulations. If all materials are in order, the attorney organizes the
materials and prepares a PERM audit file for the employer. If the materials need to be amended,
the attorney provides the employer with a detailed plan to cure any deficiencies, which usually
involves redoing certain recruitment steps and can include resetting the 30-day quiet period.

This averages 7 to 14 days for materials with no deficiencies and 14 to 60 days for materials with
deficiencies.

Once the last recruitment step is complete, the attorney will help the employer prepare and file
the application (ETA form 9089). The application can be filed no sooner than 30 days before the
last recruitment step was taken and no later than 180 days after the first recruitment step.
Labor certification applications may be filed online at a dedicated DOL Web site (PERM Online)
or may be sent by mail to the DOL National Processing Center in Atlanta. As a general matter,
applications should be submitted electronically for several reasons. The employer must register
with DOL online before it may submit applications online. While the attorney can help the
employer register, the attorney cannot complete the registration process for the employer. The
online registration will require the employer to provide the DOL with basic information about
the company, including name, address, federal employer ID number, and the name and contact
information of the company employee who is registering the company. Once the DOL receives
the online registration, it will verify the existence of the company and the hiring authority of the
employee who registered the company. The DOL will then approve the registration and send the
employer a username, password, and PIN, which will permit the employer to file the case. Once
the employer is registered, the employer may then grant the attorney access to the account for
the purpose of preparing and filing the case on the employer’s behalf. The attorney will prepare
the filing and ask both employer and alien to review pertinent parts of the application for
accuracy before filing. The attorney, employer and alien will usually “volley” the application
several times before it is finalized and all parties confirm accuracy.

This averages 2- 21 days.

After an application is filed, DOL personnel will conduct an initial review of the application to
determine that it is acceptable for processing. Applications that are not properly completed may
be rejected during this initial review process. A computer system will then review the
application based upon various selection criteria that will allow problematic applications to be
identified for audit. In addition, as a quality control measure, some applications will be randomly
selected for audit. If an application has not been selected for audit, it is sent to an analyst for
final review. The analyst conducts a final check for errors, inconsistencies, or issues that might
warrant an audit. After final review, the application will be certified and returned to the
employer. The employer must immediately sign the application (if submitted electronically). The
certified application may then be submitted to USCIS in support of an employment-based
immigrant visa petition.

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The PERM case may be flagged for audit on the basis of certain factors or may be randomly
selected (a very large percentage of cases are randomly selected for audit). If the application is
selected for audit, the employer will be notified and required to submit, within 30 days,
documentation to verify the information stated in or attested to on the application. Attorney
prepares this documentation and works with the employer to obtain signature and submit the
response. If the DOL determines that the documentation is complete and consistent with
responses on the ETA 9089, it will certify the application. If the documentation is deemed
deficient by the DOL, the certification may be denied. Alternatively, the certifying officer may
request additional documentation or order supervised recruitment. Supervised recruitment may
also be ordered in lieu of an audit. The supervised recruitment generally requires the placement
of an ad in a newspaper for three days (including a Sunday) in conjunction with a 30-day job
order. At the completion of supervised recruitment, the employer will have 30 days to
document in a recruitment report the outcome of the effort and the lawful job-related reasons
for not hiring U.S. worker applicants. Upon receipt of the report, the certifying officer will either
certify or deny the application. A final determination will be issued without an opportunity to
rebut the findings directly with the DOL, but the employer may file a request for reconsideration
within 30 days from the date of issuance of the denial.

The DOL averages approximately 8 months to process cases, although some cases can take up to
18 months for final review if audited.

I-140 Immigrant Petition

After certification of the PERM, the attorney works with the employer to prepare and file the I-
140 Immigrant Petition. The attorney also works with the alien at this time to gather any
outstanding documents that need to be submitted in furtherance of the I-140 such as academic
credentials, evaluations, experience letters, etc. The I-140 focuses primarily on whether the
employer/employee relationship remains valid, whether the terms and conditions of underlying
PERM employment remain the same, and whether the employer has the financial ability to pay
the alien’s preferred salary amount. USCIS requires the petitioning employer to establish the
financial viability of the company in order to approve the I-140 petition. The relevant regulation
at 8 CFR §204.5(g)(2) states: Ability of prospective employer to pay wage. Any petition filed by or
for an employment-based immigrant which requires an offer of employment must be
accompanied by evidence that the prospective United States employer has the ability to pay the
proffered wage. The petitioner must demonstrate this ability at the time the priority date is
established and continuing until the beneficiary obtains lawful permanent residence. Evidence
of this ability shall be either in the form of copies of annual reports, federal tax returns, or
audited financial statements.

This averages 21 to 60 days.

Once the I-140 is prepared, it is filed with the USCIS Service Center that maintains jurisdiction
over the alien and the case is reviewed and adjudicated by a USCIS Officer. If the officer finds a
deficiency in the case, the officer will send a Request for Evidence (RFE) to the employer and the
attorney to gather documents to rebut the deficiency. The attorney will prepare the response to
the RFE, should one occur, and submit to USCIS. If no deficiency is found, the case will be
approved.

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This averages between 6 to 8 months. However, this step may be “premium processed” for an
additional fee and USCIS will process the case in 15 calendar days (adjudicate or issue an RFE).
This is the only step in the process that can be expedited.

I-485 Application for Adjustment of Status

Once visa numbers are available for the foreign national, as determined by priority date,
preference category, country of birth, and the dates set forth in the monthly U.S. Department of
State Visa Bulletin, the attorney works with the alien to obtain all of the information and
documentation necessary for the filing of the I-485. This includes many items including proof of
status, medical examinations, and other supporting materials from the alien and employer.
During this timeframe, the alien should also prepare and file for ancillary benefits, namely the
EAD and AP.

This process averages 30 to 60 days.

After the I-485 for the foreign national (and immediate, dependent family members) has been
prepared, the attorney submits the I-485 application(s) to USCIS and the case is reviewed and
adjudicated by a USCIS Officer. If the officer finds a deficiency in the case, the officer will send a
Request for Evidence (RFE) to the alien and the attorney to gather documents to rebut the
deficiency. Note: many times an RFE will be issued even if there is no deficiency. This is due to
many reasons, including officer’s discretion, agency policy, and agency error. The attorney will
prepare the response to the RFE, should one occur, and submit to USCIS. During this timeframe,
the alien will be fingerprinted (biometrics) and USCIS and partner agencies will perform an
advanced background check on the alien and alien’s family. Also, the alien should expect to be
selected by USCIS for an interview.

If no deficiencies are found, the interview goes well, and if visa numbers remain available at the
time of adjudication, the case is approved and the green card is mailed within 30 days of
approval.

This averages 8 to 12 months, but varies widely depending upon the background checks and an
interview. Moreover, if visa numbers retrogress while the I-485 is pending, the case will not be
adjudicated. It will be held until visas become available again at a later date, which could be
several months or possibly years.

In summary, this is an oversimplified outline of the process and timeframes involved in the
PERM-based green card process. Each case is different and processing times often vary widely,
usually for reasons outside the control of the attorney, employer or alien. While it is tempting to
trivialize the process, especially upon reviewing inaccurate and misleading information available
via the Internet, one should take caution to conservatively manage one’s own expectations and
expect delays in the process. There are hundreds of considerations, data entries, and other
steps in the process that must be meticulously examined to ensure as perfect of a filing as
possible. Moreover, there are many executive, employer-driven considerations that are inherent
in the US employment-based immigration system. The alien will be screened from nearly all of
those considerations and decisions, both by business necessity and as a result of federal law.

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Should you have any questions, please do not hesitate to contact me.

Matthew D. Stump, Attorney at Law

6307 Waterford Boulevard, Suite 222
Oklahoma City, OK 73118
mstump@usvisagroup.com / (405) 879-0800