DOL Processing Delays Causing Concern for H-1B Max Out Cases
It is critical to start the Green Card process early. Employers should be mindful of the approaching H-1B max out dates to ensure there is sufficient time to obtain an I-140 approval and maintain the status and work authorization for their valuable talent.
The days of completing the PERM process within 1 year are gone. Since the pandemic began, we have seen Department of Labor (“DOL”) processing times slowly increase and have become a major source of stress for our employers as H-1B max out dates approach. As a general rule, H-1B visa holders are entitled to 6 years total in H-1B status. To be eligible to extend beyond the 6-year limit, the Beneficiary must either have (1) an I-140 approval or (2) a PERM Application or I-140 filed and pending for at least 365 days. The current processing time for a Prevailing Wage Request (PWR) is now 6-7 months, and the processing time for the PERM Applications has swelled to over 8 months. Adding in the time it takes to evaluate a matter, confirm experience, and prepare a draft job description, in addition to the 45-60 days it takes to complete the required ads and postings followed by the required 30-day waiting period, the PERM Application process is now taking between 18 – 21 months to complete. Furthermore, factoring in the time it takes to get the I-140 petition approved following the PERM certification (even with premium processing), employers are looking at close to 2 years from the time they initiate a PERM matter until they secure the I-140 approvals.
These processing delays are also compounded by the fact that H-1B visa stamping appointments are harder to come by, and employees are not as easily able to leave the US for a brief period of time while we wait for the I-140 approvals. With employees unable to get the visa stamping completed, leaving the U.S. is a significant concern for many who are fearful they may not be able to return for many months.
Employers can avoid this stress by beginning the Green Card sponsorship process at least 2.5 years before the employee’s max out date, or earlier. In some cases, it may mean employers may want to consider starting the green card process right away for new hires rather than waiting for a 90-day or 6-month probationary period to prevent a potential gap in employment. In other cases, it may mean beginning the process at the time of the first H-1B extension, when the employee may still have 2.5-3 years remaining in H-1B status.