PERM Program Criticized for Immigration System Dysfunction

Critics of the Labor Department’s PERM program argue that it has led to significant delays and costs for both immigrants seeking permanent residence and employers sponsoring them, contributing to dysfunction in the immigration system. To obtain an employment-based green card through the PERM program, employers must obtain a prevailing wage and, in most cases, demonstrate through advertising that no qualified U.S. worker is available.

The National Foundation for American Policy (NFAP) report highlights that the Department of Labor has created the current system without a clear legal basis, as nothing in U.S. law mandates advertising for labor certification. Senator Edward Kennedy, during the 1965 Immigration Act, suggested that the Department of Labor could use available employment data instead of requiring detailed employment analysis, which can be time-consuming and disruptive.

Despite these intentions, attorneys and employers report that the PERM process has created mounting costs and delays, particularly impacting employers seeking to sponsor highly skilled immigrants. The process, which is supposed to take 45 to 60 days according to DOL guidelines, now takes approximately two years. This includes six months to obtain a Prevailing Wage Determination (PWD), at least 60 days for the labor market test, and over a year for DOL approval, with additional delays in case of audits.

The PERM process involves several steps: identifying the job opportunity, obtaining a PWD, conducting recruitment to test the U.S. labor market, filing the PERM application, and finally, DOL review and approval. However, these delays have had significant negative impacts, including preventing H-1B professionals from extending their status beyond the six-year limit and burdening families who may need to uproot their lives due to prolonged uncertainties.

To address these delays, a lawsuit has been filed challenging the DOL’s unreasonable delays in processing PERM applications. The plaintiffs seek expedited decisions on their applications based on the original intent of the PERM program. Additionally, there have been calls for a premium processing option, similar to what is available with U.S. Citizenship and Immigration Services, but the DOL cannot implement this without congressional authorization.

In light of recent Department of Justice lawsuits against companies like Apple and Facebook, employers are advised to review their PERM recruitment processes to align more closely with their standard recruitment procedures and to ensure compliance with anti-discrimination laws. Expanding the Schedule A occupational list, which exempts certain occupations from the PERM process, could also help alleviate delays and benefit both employers and foreign nationals stuck in the green card backlog.

Overall, reforms to the PERM and employment-based immigration system are needed to address these challenges. This includes reevaluating processes, utilizing current technology for timely adjudication, revising recruitment requirements, and addressing the transition to remote work. Additionally, removing per-country caps, increasing the number of employment-based visas, and allowing beneficiaries of approved I-140 petitions to obtain employment authorization would help reduce the green card backlog and provide immigrants with greater job flexibility and mobility.