Last Days to Start a Labor Certification Case.
Some organizations begin PERM labor certification applications for H-1B workers in whom they are interested as soon as the workers come on board – others wait six months, one year, two years, three years or longer before beginning the process. Some even wait until what do they think is the last possible moment before time for the H-1B workers runs out. What is the last moment? It varies according to many factors and employers wanting to wait as long as possible would be best advised to start sooner – at least when H-1B holders have two years left. Currently, last moment looks to be about that long if all goes well with the application. The maximum period of time given for H-1B holders without recapturing dates is six years.
USCIS will allow an extension of time under The American Competitiveness Act of 2021 (AC-21) for those from backlogged countries which do not have immigrant visa availability and have an I-140 petition approved (three years), and for those from both open visa availability countries and backlogged countries (one year) where 365 days have elapsed since the filing of a labor certification application or I-140 petition. Further extensions can normally be made if needed.
In most cases that go well although there are many exceptions, expected processing time for PERM applicants from backlogged countries thinking of relying upon an approved I-140 petition to gain a three year extension usually involves at least 1-4 months to set up the application dependent upon case complexity, speed of the company and law firm, 6-7 months to obtain a prevailing wage determination, 3-4 months for the recruitment (especially in localities with wage transparency acts in which recruitment is best begun after learning the prevailing wage), 9 months for labor certification processing, 1 month to prepare and submit the I-140 petition, and 15 days for USCIS to adjudicate the petition under premium processing.
Alternatively, expected processing time for those aiming for a 365 day pending labor certification/petition 1 year extension involves the same counting through the nine months of labor certification processing, but there would be no need to submit the I-140 petition or for USCIS to adjudicate the petition to be eligible for the one year. However, 365 days would still have to elapse before the H-1B holder would be eligible for the extension. So in this case, the organization would still have to count another three months to the projected nine months of labor certification processing. It should be noted that in this situation, USCIS will allow an organization to file for an extension ahead of time so long as the beginning date of the extension is beyond the 365 days mark.
The watchword for organizations attempting to wait until the last moment to file for labor certification applications is not to wait. With ever-expanding delays in process and changes of law even from outside like the wage transparency acts, it behooves an organization to start PERM labor certification cases for employees sooner rather than later.