PERM Labor Certification: An Alternative To The H1B Cap

 

Let’s dive into a topic that’s of paramount importance for many foreign nationals and employers in the United States—the PERM labor certification process as an alternative to the H1B CAP. I’m here to guide you through this intricate process and help you understand its benefits, challenges, and potential as a pathway to obtaining work authorization and, ultimately, U.S. permanent resident status.

 

The H1B Visa CAP Challenge

 

As many of us are well aware, the H1B visa program is immensely popular, but comes with a significant hurdle—the annual numerical limit or cap. For each fiscal year, there are only 65,000 new H1B visas available and an additional 20,000 reserved for beneficiaries with a U.S. Master’s degree or higher, making a total of only 85,000 new H1B visas available each year.


The demand for H1B visas consistently surpasses the available visa numbers each year. When the electronic cap registration system first rolled out in 2021, the U.S. Citizenship and Immigration Services (USCIS) received 274,237 cap registrations for fiscal year 2022. This year, the USCIS received 780,884 cap registrations for fiscal year 2024! The number of registrations have more than doubled, and as a result, the chances of being selected in the H1B CAP lottery are well below 30%. This poses a significant challenge for foreign nationals seeking work authorization and employers looking to attract and retain international talent.

 

Exploring Alternatives to the H1B CAP

 

Given the low odds of selection in the H1B CAP lottery, many employers and foreign nationals are actively exploring alternative routes to work authorization in the United States. One prominent option is pursuing U.S. permanent resident status through the PERM labor certification process.

 

Understanding PERM Labor Certification

 

PERM (Program Electronic Review Management) is the first stage of an employment-based Green Card process. It’s overseen by the U.S. Department of Labor and functions as a labor market test to ensure that U.S. workers are not displaced by foreign workers. The entire Green Card process consists of three stages: PERM, the I-140 petition, and the I-485 application.

 

Timing and Processing of the PERM Green Card Process

 

It’s essential to note that the entire PERM Green Card process, from commencing PERM to obtaining the actual Green Card, or U.S. permanent resident card, currently takes at least two to three years to complete. Timing also depends on the beneficiary’s country of birth and employment-based (EB) category. Beneficiaries from India and China have longer visa wait times than other countries.

 

Additionally, if the beneficiary requires U.S. employment authorization, the beneficiary may be able to apply for an EAD card about 18 to 20 months after initiating the PERM process, assuming their priority date is current and their case did not encounter any delays. 

 

The process can be summarized in three stages:

 

1. PERM: The first stage takes approximately 18 to 20 months to complete based on current Department of Labor (DOL) processing times. This extended timeline is due to the DOL’s processing of prevailing wage determinations, which takes about 6 to 8 months upfront, and the adjudication of the ETA9089 PERM application, which takes about 10 months.

 

2. I-140 Petition: After successfully completing the PERM stage, employers can file the I-140 petition. This petition can be premium processed, which means a decision could be made in 15 calendar days. Normal processing times are approximately 4-6 months. The I-140 approval will lock in the priority date, which is the date the PERM application was filed. It determines your place in the queue for visa numbers. 

 

3. I-485 Application: The final stage is the I-485 application, which can only be filed once the priority date becomes current according to the Visa Bulletin. We can also file the I-765, Application for Employment Authorization and I-131, Application for Travel Document at this stage so that the employee can work and travel while the I-485 application is pending. The processing times for the I-485 application vary from case to case, but generally take about 8-12 months to process.

 

Categories and Visa Bulletin Considerations

 

There are two main employment-based (EB) categories that require PERM labor certification: EB2 and EB3. 

 

1. EB2: This second preference category is for positions that require an advanced degree or a bachelor’s degree and at least five years of experience.

 

2. EB3: The third preference category covers professional, skilled, and other workers. EB3 professional positions require at least a bachelor’s degree, while skilled worker positions require at least two years of training, experience, or education. The unskilled worker category includes positions that require less than two years of training or experience.

 

It’s important to note that the Visa Bulletin, issued by the U.S. Department of State, determines when immigrant visa applications can be filed and adjudicated. The beneficiary’s priority date, which is the date the PERM application was filed, plays a crucial role in this process. Depending on your country of birth and EB category, you may have to wait for your priority date to become current before filing the I-485 application.

 

Challenges and Considerations

 

While the PERM process offers a viable alternative to the H1B CAP, it’s not without its challenges and considerations:

 

1. Job Stability: Ensure that the position and the company will remain stable throughout the Green Card process, which can take several years. Changing employers or job roles midway can complicate your application.

 

2. Significant Changes: Major changes to your proposed employment, such as job duties or work site location, might require restarting the PERM process.

 

3. Financial Ability: Your employer must demonstrate the financial ability to pay the offered salary to ensure the success of your I-140 petition.

 

4. Layoffs: If your employer experiences layoffs in positions similar to yours at the same work site, you may need to wait for at least six months before filing your PERM application.

 

5. Processing Time Variability: Government processing times can change, and individual Green Card processes may differ. It’s essential to stay informed and consult with a qualified attorney for personalized guidance.

 

 

Conclusion

 

In summary, the PERM labor certification process is a viable and strategic alternative to the H1B CAP for obtaining work authorization and U.S. permanent resident status. If you are prepared to wait for approximately two to three years to complete the process, including filing the I-485 application and obtaining the EAD card, PERM can offer stability and flexibility in your U.S. career journey.

 

However, it’s crucial to remember that every Green Card process is unique, and many factors can influence its duration. Consulting with an experienced immigration attorney is essential to navigate the complexities of the PERM process successfully.

 

I hope you found this detailed exploration of the PERM Green Card process informative and valuable. If you have further questions or need assistance with your specific situation, please don’t hesitate to reach out to us. Thank you for joining us on this journey through the intricacies of the PERM green card process.

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