For many employers seeking to sponsor foreign nationals for permanent residence through employment, the first major step is not filed with the U.S. Citizenship and Immigration Services (USCIS). It begins with the U.S. Department of Labor.
This process is commonly known as PERM labor certification. PERM is used in many employer-sponsored green card cases, especially under the EB-2 and EB-3 employment-based immigrant visa categories. It is a technical process, and small errors in job requirements, recruitment, wage information, or timing can delay or derail the case.
This article provides a general overview of how the PERM process works and what employers and employees should expect.
What Is PERM Labor Certification?
A permanent labor certification allows a U.S. employer to sponsor a foreign worker for permanent employment in the United States. Before the employer can file an immigrant petition with USCIS, the Department of Labor must certify that there are not enough able, willing, qualified, and available U.S. workers for the position, and that hiring the foreign worker will not adversely affect the wages and working conditions of similarly employed U.S. workers.
PERM does not grant a green card by itself. Rather, it is the foundation for the next stage which is the employer’s filing of Form I-140, Immigrant Petition for Alien Worker, with USCIS.
Which Green Card Categories Commonly Require PERM?
PERM is most commonly used for employer-sponsored cases in the EB-2 and EB-3 categories.
EB-2: Advanced Degree Professionals and Persons of Exceptional Ability
The EB-2 category generally covers professionals who hold an advanced degree, or a bachelor’s degree plus at least five years of progressive experience. A permanent job offer and labor certification are generally required, unless the applicant qualifies for a National Interest Waiver (NIW), which may waive the job offer and labor certification requirement.
EB-3: Skilled Workers, Professionals, and Other Workers
The EB-3 category includes three main groups: skilled workers whose jobs require at least two years of training or experience, professionals whose jobs require at least a bachelor’s degree or foreign equivalent, and other workers performing jobs requiring less than two years of training or experience.
Step 1: Confirm the Job Opportunity and Minimum Requirements
The PERM process begins with the employer identifying a permanent, full-time job opportunity. The employer must carefully define the job title, duties, work location, minimum education, training, experience, and special skills required for the position. The Department of Labor expects the employer to identify the actual minimum requirements for the role, not inflated requirements designed to exclude U.S. workers. This stage is important because the job description and minimum requirements will shape the prevailing wage request, the recruitment campaign, and the PERM application itself. If the requirements are too narrow, too high, or inconsistent across filings and advertisements, the case may be vulnerable to audit or denial.
Step 2: Request a Prevailing Wage Determination
Before filing the PERM application, the employer must request and receive a Prevailing Wage Determination from the Department of Labor’s National Prevailing Wage Center. The prevailing wage is the minimum wage level the employer must generally offer for the position based on the occupation, duties, requirements, and geographic area of employment. The offered wage must meet or exceed the required prevailing wage. Employers should review the wage determination carefully because it affects both PERM compliance and the later Form I-140 stage, where the employer may need to show the ability to pay the offered wage.
Step 3: Conduct Required Recruitment
After receiving the prevailing wage determination, the employer must test the U.S. labor market by conducting recruitment for the position. The required recruitment depends on whether the occupation is classified as professional or non-professional. For professional occupations, the employer must generally complete mandatory recruitment steps including a job order with the State Workforce Agency and two Sunday newspaper advertisements, as the cashew may be. The employer must also complete three additional recruitment steps, such as using the employer’s website, a job search website, job fairs, campus recruiting, trade or professional organizations, employee referral programs, local or ethnic newspapers, or radio and television advertisements.
For non-professional occupations, the recruitment requirements are generally less extensive, but the employer must still conduct required recruitment, including a State Workforce Agency job order and newspaper advertisements.
The timing is also important. Recruitment steps generally must be completed within the required regulatory window before the PERM application is filed. For example, certain recruitment steps must be conducted at least 30 days, but no more than 180 days, before filing.
Step 4: Post the Notice of Filing
In addition to external recruitment, the employer must provide notice of the PERM filing to its employees. This usually means posting a Notice of Filing at the worksite for at least 10 consecutive business days in a clearly visible location. The employer must also use any normal in-house media used for similar job postings.
The Notice of Filing must include specific information, including notice that the employer is filing an application for permanent labor certification and that interested persons may submit documentary evidence to the Department of Labor. It must also state the rate of pay, which must equal or exceed the prevailing wage.
Step 5: Review U.S. Worker Applicants
The purpose of PERM recruitment is to determine whether there are able, willing, qualified, and available U.S. workers for the offered position. The employer must review applicants in good faith and may reject applicants only for lawful, job-related reasons. This is one of the most sensitive parts of the PERM process. Employers should not treat recruitment as a formality. The Department of Labor may scrutinize whether applicants were properly considered and whether the employer’s reasons for rejection were lawful and consistent with the stated job requirements.
Step 6: File Form ETA-9089
If recruitment is completed and no qualified, willing, able, and available U.S. worker is found for the position, the employer may file Form ETA-9089, Application for Permanent Employment Certification, with the Department of Labor. PERM applications are filed online through the Department of Labor’s FLAG system. The employer must have a FLAG account and submit information about the employer, job opportunity, prevailing wage, recruitment, and foreign worker.
What Happens After Filing?
After filing, the Department of Labor may certify the application, deny it, or issue an audit. If the case is audited, the employer must provide supporting documentation showing that it complied with PERM rules. Employers must keep copies of the PERM application and all supporting documentation for five years from the date of filing. Processing times vary. The Department of Labor publishes PERM processing updates through the FLAG system, and actual processing times may differ depending on the facts and circumstances of the case.
Step 7: File Form I-140 with USCIS
Once the Department of Labor certifies the PERM application, the employer may file Form I-140, Immigrant Petition for Alien Worker, with USCIS. The certified labor certification must be submitted to USCIS within its validity period. A certified PERM labor certification is generally valid for 180 days and expires if it is not submitted to USCIS within that period. At the I-140 stage, USCIS reviews whether the offered position qualifies for the requested immigrant visa category, whether the foreign worker meets the requirements for the position, and whether the employer can support the petition. In most employer-sponsored cases, the employer must show that it has the ability to pay the offered wage.
Step 8: Apply for the Green Card
After the I-140 petition is approved, the foreign worker may move to the final green card stage when an immigrant visa number is available. This step depends on the worker’s country of birth, visa category, and priority date. The priority date is important because employment-based immigrant visas are numerically limited. The Department of Labor explains that, for PERM cases, the date the labor certification application is received by the Department of Labor is used by USCIS and the Department of State as the priority date.
If the worker is in the United States and eligible, they may apply for adjustment of status by filing Form I-485 with USCIS. If the worker is outside the United States, or chooses consular processing, the case proceeds through the National Visa Center and a U.S. embassy or consulate.
Important Compliance Points for Employers
PERM is a highly regulated process. Employers should be particularly careful about:
- accurately defining the job duties and requirements;
- ensuring the offered wage meets or exceeds the prevailing wage;
- conducting recruitment within the correct time period;
- properly reviewing U.S. worker applicants;
- documenting lawful, job-related reasons for rejection;
- retaining the audit file for five years;
- filing the I-140 before the PERM certification expires; and
- avoiding improper cost-shifting to the foreign worker.
Conclusion
The PERM process is often the first and most demanding stage of an employment-based green card case. For EB-2 and EB-3 sponsorships, it requires careful planning, accurate job descriptions, compliant recruitment, and precise timing. For employers, PERM is more than paperwork. It is a regulated labor market test. For employees, it is often the first formal step toward permanent residence through employment. Because errors can cause serious delays or denials, employers and foreign workers should seek guidance before beginning the process.
Dotts Law Office assists employers and foreign workers with employment-based immigration matters, including PERM labor certification, Form I-140 petitions, and related green card strategy.
This article is provided for general informational purposes only and does not constitute legal advice. Immigration rules and processing times may change, and individuals should consult an attorney about their specific circumstances.
