December 11, 2023

Immigration Green Card

Immigration Is Good For You

Green Card: Key changes in process of first step to green card could lead to delays

4 min read
Program electronic review management or PERM is one of the first and most important steps in the US employment based green card, or permanent residence, application process. It is a system to get labour 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. An employer in the US must obtain an approved labour certification from the US Department of Labor (DOL) before they can file a green card petition for a foreign worker with the US Citizenship and Immigration Services.
There have been concerns among Indians, waiting for their green card processing, about the PERM system becoming increasingly time-consuming and unpredictable. According to a recent notification by the Department of Labor, the PERM process is taking around 8.5 months to process. Complicating the issue is the fact that DOL is migrating PERM to an online system that can introduce potential chaos.
“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,” says Vic Goel managing partner at Virginia based law firm Goel & Anderson LLC.
DOL’s certification of a PERM application also confirms that employment of the foreign worker will not adversely affect the wages and working conditions of similarly employed US workers. While the overall PERM timeframe is of 9-12 months with no additional delays for Indian nationals; significant advance preparation is required before filing the application, says Goel. “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,” he adds.
The recent announcement by the DOL on the migration of PERM to an online system is causing worries for Indians on 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 cards,” says Mumbai based immigration attorney Poorvi Chothani; adding that it is unclear so far whether the consequences of the new system updates are positive or negative.
According to the recent changes, the DOL has revised the Form ETA 9089, ‘application for permanent employment certification’, to eliminate a key explanatory field on the form and to require more detail on the job requirements, work location, and the sponsored employee’s qualifications.
“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,” says Goel. He feels that this will add to the anxiety that Indian applicants experience since PERM is an exacting process and the impact of a drafting error or denial could lead to significant delay or ineligibility for applicants who are approaching the end of their maximum period of stay in the H-1B or L-1 visa categories.
Stages of the PERM process

  • US employers have to get an approved labour certification the department of labor (DOL) before filing an immigration petition (green card) for a foreign worker with US Citizenship and Immigration Services (USCIS) in most EB-2 and EB-3 categories
  • An application for labour certification has to be submitted to the DOL by using ETA Form 9089
  • DOL must certify to the USCIS that there are not sufficient US workers able, willing, qualified, and available to accept the job offered to the immigrant worker at the prevailing wage for that occupation in the area of intended employment, and that employment of the foreign worker will not adversely affect the wages and working conditions of similarly employed US workers
  • If sufficient able, qualified, and willing applicants (US citizen or permanent resident) are not found for a position through the recruitment process, the employer can submit a PERM application
  • According to the DOL, an electronically filed PERM application was expected to be adjudicated in around 45-60 days unless the case was audited. The current processing time for unaudited PERM applications, however, is around 90 days
  • If the case is selected by DOL for auditing, the petitioning employer should submit all requested documents within 30 days
  • After the labour certification is approved, an immigrant petition should be filed with the USCIS before the expiration of the labour certification. The certification has a validity period of 180-days and expires if not submitted to USCIS within this period.


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