PERM Process taking too long?

The PERM labor certification process is the longest it has ever been since PERM was invented in 2005. An I-539 can be useful if you are running out of H-1B time.

This is a quick post to discuss a situation that sometimes occurs for people in H-1B status. But first, some background:

• H-1B workers are limited to 6 consecutive years in H-1B status. This is cumulative of employers, so if you spend 4 years at Employer A, then you go to Employer B, you are only eligible for 2 more years at Employer B, for a total of 6 years.

• Many H-1B employees need to be sponsored by their employer for a green card. In fact, employer sponsorship is the most common way, by far, for H-1B workers to get a green card. Self-sponsorship, while something great to consider, is simply not applicable to lots of people.

• Employer green card sponsorship generally requires 3 stages, with stage 1 being PERM labor certification.

• PERM labor certification requires processing with the U.S. Department of Labor (DOL). It requires getting a Form 9141 prevailing wage determination (which can easily take 6 months) and also filing and getting approved a 9089 PERM application form. 9089 processing can take 10+ months. So the PERM process can easily take 16 months just in DOL processing (9141 + 9089), and there are also various other steps involved which can easily take 2-3 additional months. Note that neither 9141 prevailing wage request nor 9089 PERM application processing are eligible for premium processing. It is the slow boat, or no boat!

• Because the PERM process is so slow these days (with no end in sight) and because H-1B workers are limited to 6 years of H-1B time, many H-1B workers are running out of time. The problem has become acute in 2022 and 2023 as the PERM processing times have kept getting slower.

• Importantly, there are two ways to qualify for H-1B extensions beyond 6 years. Option (i) is to get an approved PERM and approved I-140 and show that the priority date is not current. Then you are eligible for 3 years of additional H-1B time. Option (ii) for an H-1B extension beyond 6 years is that show that the PERM application was filed and has been pending at least 366 days (1 year plus 1 day), then you are eligible for an H-1B extension for 12 months beyond the 6 year limit.

• Sadly, these extension options are NOT available for L-1 visa holders. A lot of L-1 visa holders face issues because of slow processing times at DOL and the expansion of cut-off dates to more categories and nationalities, but that’s a separate discussion for a subsequent post!

• For various reasons, it may not be possible to qualify for Option (i) or Option (ii) and a person in H-1B status may run out of H-1B time. It is increasingly common to see H-1B workers running out of time EVEN THOUGH their employer is sponsoring them for PERM.

• One possible way to stay in the United States if this occurs is for the H-1B worker to file an I-539 application to change status from H-1B to B-2 visitor and wait in the United States until you qualify for an H-1B extension using either Option (i) or (ii) - depending which option becomes available sooner.

• Note that you cannot work in the United States if your H-1B time runs out and you file an I-539 application to change to B-2 visa status, so changing to B-2 visa status it not a super great option; but it does allow you to stay in the United States if necessary. And your employer can file for an H-1B extension for you beyond 6 years using either Option (i) or (ii).

One thing to keep in mind is that I-539 processing is ALSO slow so if you pursue this option to change from H-1B to B-2, you might be just waiting in the United States with an I-539 application pending (and not approved) and then while waiting for your I-539, you become eligible for an H-1B extension using either Option (i) or (ii). If that happens, then it is possible to have your employer proceed on the H-1B extension and document your change to B-2 status with the I-539 receipt. We have been successful on this approach in 3 instances where in all 3 instances the I-539 application was still pending when we hoped to extend the H-1B. In all 3 instances it worked and so I mention the I-539 as a possible strategy (a ‘band-aid’) to bridge the gap in the increasingly common situation where an H-1B worker runs out of time while the PERM application is pending.

Perhaps you know someone who can benefit from this approach?