Timeline of the U.S. Labor Certification Process

An important and often time consuming part of the process of obtaining U.S. lawful permanent residence (a green card) through employment is when the employer files the required Labor Certification (LC) with the U.S. Department of Labor (DOL). This article will acquaint you with the steps in that process; it also will help you understand why getting an answer might take longer than you were hoping, or longer than was considered normal in the past.

What Exactly Is PERM "Labor Certification?"

First off, an approved LC is a determination by DOL that a U.S. employer has proven, after a comprehensive recruitment and interview process, that there are no qualified U.S. workers available and willing to take the offered job. That decision allows the employer to move forward with sponsoring the would-be immigrant for a green card.

The DOL currently processes LCs using a system called PERM (Program Electronic Review Management), which was established in 2005. Under the PERM program, the employer is required to complete all recruitment without any involvement by the DOL, except for the prevailing wage determination mentioned below. After completing the recruitment process, the employer submits a form listing its recruitment steps and attesting that it found no qualified U.S. workers for the job. Then DOL ordinarily makes its decision.

Has the PERM Process Speeded Up LC Decision-Making?

When PERM was first implemented, the idea was to streamline what had been an extremely complicated process, as well as to reduce the overall time needed to obtain an approved LC. Before the change, DOL and related state agencies were involved in every step of the process. None of them had the resources to process each LC in a timely manner, so processing times for LCs became years long.

Unfortunately, that hasn't changed much, owing to lack of funding to DOL for the PERM program. Current processing times are approaching those of the former LC process. As of early 2024, it's taking nearly two years to get an LC decision, taking into account the prevailing wage step, recruitment effort, and DOL review of the application (discussed below).

In order to understand the time it will likely take to obtain an LC, let's look at each of the steps in the PERM process and how long each step will likely take by itself.

Step One: Employer Writes Up Job Description and Requirements

In the initial step, the employer must develop the job description and minimum requirements, decide the recruitment steps, and address any potential issues. This can be more complex than it might sound. This initial step usually takes employers a month or two.

Step Two: Employer Obtains Prevailing Wage Determination From DOL

Once the initial planning step is complete, employers will typically request a prevailing wage determination (PWD) from DOL. As of early 2024, processing of PWDs was taking six months for most requests and up to a year or more for some, such as when the employer requests a wage determination based upon a private wage survey the employer submits along with its prevailing wage application. It can be even longer if the employer disagrees with the DOL's wage determination and requests a redetermination or files a new request with an adjusted job description and/or minimum requirements.

The DOL's website for prevailing wage requests and LC applications is called "FLAG," or Foreign Labor Application Gateway. Though several years old now, it took DOL a while to overcome its many technical glitches. Fortunately, DOL now monitors the system continuously, and quickly addresses occasional technical troubles.

It is usually beneficial for employers to wait for the PWD and resolve any wage issues prior to beginning recruitment, but it is not required. If the LC must be filed as soon as possible, the employer can move forward with the recruitment process before the DOL completes the determination.

However, if the employer chooses to move forward with recruitment before obtaining a PWD, it cannot file the LC until receiving the PWD, and must file the LC before the PWD expires. With longer PWD processing times, this requires careful planning to time the recruitment and PWD validity period.

Step Three: Employer Conducts Recruitment of Potential Job Candidates

Once the employer begins recruitment, it has between 60 and 180 days to file the LC. In addition, prior to filing the LC, the employer must allow for a 30-day "cooling off" period, during which it must post no job notices, nor conduct any recruitment except for one of three "additional" recruitment steps.

Thus, if the employer wants to file the LC within 60 days, it must post all job notices and complete almost all recruitment within the first 30 days. However, if the employer receives a large number of responses and/or needs to further screen applicants in order to determine whether any are qualified, the process could take longer. The employer might also need to delay the filing, or even restart it, if it finds qualified workers or experiences a layoff.

In one exception to the usual process of the employer handling the recruitment on its own, DOL sometimes requires employers to go through what is called Supervised Recruitment. It resembles the former state-driven process and involves DOL instructing the employer when and where to advertise and then serving as the intermediary to receive resumes of candidates.

Step Four: Employer Files Labor Certification

Once the employer has completed recruitment and waited out the 30 day cooling-off period, it can file the LC using the FLAG portal. With the longer PWD processing times as of early 2024, most employers need about a year to complete all the steps needed to file the application.

Step Five: DOL Makes Decision on Labor Certification

DOL processes LCs in the order it receives them. Its processing involves approving, denying, or auditing the LC. DOL's processing times can be found on its FLAG website.

As of early 2024, DOL typically performs the initial review of LCs in about 12 months. The agency hasn't exactly been consistent, and because the agency relies on Congressional funding, processing times likely will remain long until DOL can charge filing fees and then hire additional staff.

Possible Step Six: Employer Deals With DOL Audit or Denial

To ensure quality control, DOL selectively chooses to audit some of the LCs. That means that it reviews the employer's recruitment process and at times requests the resumes of people who applied for the position. If DOL decides to audit the LC, it will give the employer 30 days in which to respond.

DOL tends to process audited LCs within about three months from receiving the employer's response.

If DOL denies the LC, the employer has 30 days in which to file an appeal. If the employer files an appeal to correct a government error, DOL will decide on the appeal within a few months. Otherwise, DOL typically takes several years to process an appeal.

Step Seven: Approval or Denial of LC

The result of all this is that it is possible for an employer to obtain an approved LC in about 18 months. Still, because LCs remain complex and because of longer processing times, it is typical for an employee to wait even longer before the employer has taken all the steps required to receive an approved Labor Certification.

And of course, the LC could be denied. Common reasons for denial include the following.

Denial Reason 1. Employer's Incomplete Recruitment Efforts

The market test is probably the most time- and effort-intensive of the required steps for a Labor Certification, and with quite a few places for errors and missteps. Failure to comply with the 180-day and 30-day timing deadlines noted above, for example, can result in an LC denial.

Missing one or more of the recruitment or advertising methods, or even failing to properly document such recruitment or advertising, can also end in a denial. Unclear or vague advertisements, or ads placed in publications having little to do with the industry or field of the job can be seen as efforts to hide the job's availability, which can also garner a denial. The U.S. employer must be careful in the market test process, be clear and open about the job availability, and be thorough in documenting all recruitment and advertising efforts.

Denial Reason 2. Inadequate Job Description and Showing of "Business Necessity"

The law requires sponsoring employers to accurately describe the duties, educational requirements, experiential requirements, and skill requirements for the sponsored position. This means that an employer cannot set the requirements for the position impossibly high solely to discourage persons others than the sponsored foreign national from applying. This also means that the employer must not "tailor" the job duties and requirements so that they match only the sponsored foreign national's credentials.

The law specifically says that any educational, experiential, or skill requirements for a job must be reasonably necessary to fulfill the job's duties and responsibilities. This "Business Necessity" concept can, and often does, block LCs from being approved. A sponsoring employer must be careful to both accurately describe the duties and responsibilities of a job and set reasonable requirements and prerequisites for it.

For example, requiring a computer programmer at a software company to speak fluent German might be seen as unreasonable, particularly if the programmer does not need to understand one word of German to do the job. However, an elementary school teacher working at a school that immerses its students in German could be reasonably expected, and required, to speak German fluently. An employer going through the LC process must take care to reasonably set the requirements for the job.

Denial Reason 3. Insufficient Showing That U.S. Employer Can and Will Pay Prevailing Wages

Employers cannot dance around the issue of prevailing wages. An employer wishing to sponsor a foreign national through a specific job must attest that the person will receive at least the prevailing wage and that the employer has the finances to pay at least that wage.

This can be a significant stumbling block. For example, some employers might find the "official" prevailing wage particularly high as compared to what they would normally pay a U.S. worker. Other employers might not have the necessary financial documentation to show that they can afford to pay the prevailing wage.

Foreign nationals hoping for sponsorship through a U.S. employer should carefully and thoroughly discuss this issue with the prospective employer.

Denial Reason 4. Issues With Job Availability and Layoffs

U.S. law says that an employer that lays off or furloughs employees cannot simultaneously or suddenly sponsor a foreign national for the same jobs or positions without first taking extra steps. Those include carefully reviewing the qualifications of the terminated employees to determine whether they might meet the job requirements. If some terminated employees meet these requirements, the employer first must offer the job to them.

This creates an awkward situation if laid-off employees say they would accept the job. Many employers simply choose to postpone the process for six months, when they're outside the restricted period for layoffs.

If you are in an industry or field that regularly or seasonally experiences layoffs, or if the economic conditions are volatile, watch out for situations where layoffs and furloughs are real possibilities; these can sink an LC application. An example is the financial collapse of 2008, when the DOL substantially ramped up audits of financial analysts and related jobs.

Get an Attorney's Help With Labor Certification

The employment-based immigration process can be one of the fastest routes to obtaining a green card and permanent residence. However, the Labor Certification process, essential to the majority of employment-based green card applications, is fraught with pitfalls that can potentially delay or even derail an applicant from the road to permanent residence. If you are seeking an employment-sponsored green card through the LC process, or if you are an employer looking to sponsor a foreign national employee, you should discuss your case with an immigration attorney.