Ask Sophie: What changes are in store for PERM?

Sophie Alcorn, attorney, author and founder of Alcorn Immigration Law in Silicon Valley, California, is an award-winning Certified Specialist Attorney in Immigration and Nationality Law by the State Bar Board of Legal Specialization. Sophie is passionate about transcending borders, expanding opportunity, and connecting the world by practicing compassionate, visionary, and expert immigration law. Connect with Sophie on LinkedIn and Twitter.

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Dear Sophie,

Our HR and operational consulting firm works primarily with tech startups. Would you provide an update on what we should look out for in the new year when it comes to the PERM process? Thanks!

— Hopeful HR

Dear Hopeful,

Happy New Year! I’m excited about what 2024 will bring in immigration policy changes designed to attract and retain international talent in STEM fields, particularly those spurred by President Biden’s executive order on AI.

If you haven’t already, talk with an immigration attorney about the complex PERM process, timing, risks and alternative options based on a company’s hiring situation and an employee’s immigration situation.

Now, let me provide a bit of context about where things currently stand with the PERM process before diving into the changes you should look out for that will — or will not :) — impact PERM.

The current state of PERM

As you know, getting PERM labor certification from the U.S. Department of Labor (DOL) is the first step required for companies sponsoring current or prospective employees for an EB-2 advanced degree or exceptional ability green card or an EB-3 green card for professional workers. The PERM process aims to protect wages for Americans and establish that any qualified and available U.S. workers receive access to the job prior to offering a green card to the candidate.

If you’d like additional detail about the nuts and bolts of the PERM process, take a look at this previous Ask Sophie column.

In general, PERM requires employers to:

• Determine the detailed duties and minimum requirements of the position, which will be used for the job posting during the recruitment process.
• File a prevailing wage request. The employer must pay the prevailing wage or higher based on the position and the location of the position to ensure that hiring a foreign national would not adversely affect the wages of U.S. workers.
• Go through an extensive recruitment process.
• Get labor certification from the Department of Labor.

Overall, the entire multistage labor certification process is currently taking between 18 and 24 months, as long as the DOL does not audit your case. According to the Foreign Labor Application Gateway (FLAG), the prevailing wage determination is taking about 8 to 12 months and the PERM itself is usually taking another 8 to 12 months.

The DOL conducts two types of audits: random audits and targeted audits. Random audits are done to make sure employers are following the PERM process. Some common reasons for targeted audits could include:

• The employer laid off employees within the past six months. If the employer laid off workers within six months of filing the PERM application, they are required to notify the recently laid-off U.S. workers of the job opening and invite them to apply for the position.
• The candidate appears unqualified for the position.
• The role does not require a bachelor’s degree.
• A company executive is a relative of the candidate.

An audit does not mean an employer’s PERM will be denied, but it can add several months to the adjudication process. If an employer does not respond to the audit notice, the DOL will deem the case abandoned and the employer may be required to conduct supervised recruitment for any future PERM applications.

Once the DOL approves the PERM labor certification for that position, the employer needs to file the I-140 EB-2 or EB-3 green card petition with U.S. Citizenship and Immigration Services (USCIS) within 180 days.

Visa Bulletin outlook for EB-2 and EB-3

Given the slow-moving EB-2 and EB-3 green card lines, employers might want to consider supporting their employees to qualify for the EB-1 green card category, such as the EB-1A extraordinary ability green card or the EB-1C green card for multinational managers and executives.

Demand for EB-2 green cards from individuals born in countries other than India and China (referred to as the rest of the world) has been so high that for the first time ever, the category was not “current” at the beginning of the fiscal year 2024, which started on October 1, 2023. The same was true for EB-3, which was also not “current” at the start of the fiscal year for the first time since FY 2018.

The final action dates for the EB-2 and EB-3 categories for individuals born in all countries advanced in the January 2024 Visa Bulletin. Still, all EB-2 and EB-3 candidates will be waiting for a visa number to become available, and many observers predict that the EB-2 and EB-3 categories will not become current this fiscal year.

Bypassing PERM

Last month, the DOL published an RFI (request for information) to solicit public input on expanding its Schedule A shortage occupation list to include AI and other STEM-related occupations, as well as additional occupations for which the number of willing and qualified U.S. workers is insufficient to fill all positions. In this column, I discussed the Help Wanted Index, a data-driven method created by the Institute for Progress (IFP) to identify the occupations that should be on Schedule A.

Companies that employ a new or existing worker in an occupation listed in Schedule A can bypass the PERM labor certification process required for the EB-2 and EB-3 green cards.

The RFI is open for public input until 11:59 p.m. EST on February 20, 2024. I urge you to let the DOL know how crucial it is to add STEM-related occupations to Schedule A and to adopt the IFP’s data-driven method to identify those occupations. After the comment period ends, the DOL will review the comments and hopefully issue an updated Schedule A.

Prevailing wage rates

And there’s more good news for employers! Last year, the DOL postponed its plans to raise the prevailing wage rates of professional foreign workers that are used for both the PERM process for the EB-2 and EB-3 green cards and the Labor Condition Application (LCA) for the H-1B specialty occupation visas.

The DOL moved this proposal to raise the prevailing wage rates from its active rulemaking list to its long-term agenda, which experts say is usually the first step to the proposal being indefinitely shelved.

Clarity for international students

Last month, the USCIS issued policy guidance that offers clarity and reassurance to international students and any companies looking to sponsor them for an EB-2, EB-3, or other employment-based green card.

The F-1 and M-1 student visas are nonimmigrant visas, meaning F-1 and M-1 students must have nonimmigrant intent. In other words, they must demonstrate to immigration officials that they intend to remain in the U.S. temporarily and eventually plan to return to their home country.

Now, however, the USCIS has clarified “that F and M students must have a foreign residence that they do not intend to abandon, but that such students may be the beneficiary of a permanent labor certification application or immigrant visa petition and may still be able to demonstrate their intention to depart after a temporary period of stay.” That means students on F-1 and M-1 visas can be sponsored for employment-based green cards or self-petition for EB-1A or EB-2 NIW (National Interest Waiver) green cards without risking their current status.

Fewer EAD renewals

Last fall, the USCIS increased the validity of EAD (Employment Authorization Document) from two years to five years for individuals who have an approved green card petition and are waiting to adjust status, the final step in the green card process. That means individuals waiting for their priority date to become current to receive a green card won’t have to renew their EAD quite as often as before.

All in all, there’s been lots of good news for tech startups and their current employees and new hires they sponsor for EB-2 and EB-3 green cards.

Wishing you the best for this new year ahead!

— Sophie

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