PERM Labor Certification Process: An Employer’s Step-by-Step Green Card Guide
PERM labor certification is usually the first stage of an employer-sponsored EB-2 or EB-3 green card case. The employer defines the permanent position, obtains a prevailing wage, recruits U.S. workers, and files ETA Form 9089 with the U.S. Department of Labor. If the Department of Labor certifies the application, the employer may proceed with an I-140 immigrant petition.
PERM is not a visa or green card application. A pending or approved labor certification does not give the foreign worker immigration status, employment authorization, or permission to remain in the United States.
This guide is intended for U.S. employers considering sponsoring an employee for permanent residence, foreign workers whose employers have offered sponsorship, and human resources professionals managing the PERM process.
Katsivalis & Anderson represents employers and foreign workers in PERM labor certification and employment-based green card matters throughout the United States, including clients in Chicago, Milwaukee, and Austin.
What Is PERM Labor Certification?
PERM is the process through which a U.S. employer asks the Department of Labor to certify that it may employ a foreign worker in a permanent, full-time position.
The employer must demonstrate that:
There are not sufficient U.S. workers who are able, willing, qualified, and available for the offered position; and
Employing the foreign worker will not adversely affect the wages and working conditions of similarly employed U.S. workers.
The formal application is called an Application for Permanent Employment Certification and is filed on ETA Form 9089.
Most employer-sponsored green card cases in the EB-2 and EB-3 categories require labor certification. Different procedures may apply to Schedule A occupations, certain college and university teachers, and workers who qualify for a category that does not require a permanent job offer or labor certification.
Is PERM the Same as a Green Card?
No. PERM is normally the first of three major stages in an employer-sponsored green card case:
Stage | Agency | Purpose |
PERM labor certification | Department of Labor | Tests the U.S. labor market for the permanent position |
I-140 immigrant petition | USCIS | Establishes the employment-based category, the worker’s qualifications, and the employer’s ability to pay |
Green card application | USCIS or Department of State | Determines whether the worker is eligible to become a permanent resident |
Approval at one stage does not guarantee approval at the next stage.
Who Files the PERM Application?
The sponsoring employer files the PERM application. The foreign worker is the beneficiary of the application but is not the applicant.
The employer is responsible for:
Defining the permanent position and its minimum requirements;
Providing accurate information about the company and job;
Paying the required PERM expenses;
Conducting recruitment;
Reviewing and considering U.S. applicants;
Preparing the recruitment report;
Retaining the required supporting documentation; and
Signing the application and related attestations.
An immigration attorney may guide the employer through the process and prepare the application, but the employer remains responsible for the truth and accuracy of the information submitted.
What Is the PERM Process?
The principal stages of a standard PERM case are:
Stage | What happens |
Case planning | The employer’s position, requirements, worksite, wage, and the employee’s qualifications are reviewed |
Prevailing wage | The Department of Labor determines the required wage for the position |
Recruitment | The employer advertises the position and tests the U.S. labor market |
Applicant review | The employer determines whether any applicants meet the lawful minimum requirements |
PERM filing | The employer submits ETA Form 9089 |
Department of Labor review | The application may be certified, audited, subjected to supervised recruitment, or denied |
I-140 petition | The employer asks USCIS to classify the worker in the appropriate employment-based category |
Final green card stage | The worker completes adjustment of status or immigrant visa processing when a visa is available |
PERM cases require substantial work before ETA Form 9089 is filed. Errors made when defining the position or conducting recruitment may not become apparent until months later, when the Department of Labor audits or denies the application.
Step One: Define the Permanent Position
The PERM process begins with a careful analysis of the permanent position the employer is offering.
The employer and immigration attorney should identify:
The job title;
The actual job duties;
The minimum education required;
The acceptable fields of study;
The minimum amount and type of experience required;
Required licenses, certifications, or specialized skills;
Supervisory responsibilities;
Travel requirements;
The primary worksite;
Remote or hybrid work arrangements; and
The wage the employer intends to pay.
The job requirements must reflect the employer’s actual minimum requirements. They should not be created simply to match the foreign worker’s education and experience.
The employer must ordinarily be willing to hire a qualified U.S. worker who meets the requirements stated in the PERM application. Unusually restrictive requirements may need to be justified as necessary to perform the job.
Why Do the Job Duties and Requirements Matter?
The job duties and requirements affect nearly every later stage of the case. They may determine:
The occupational classification;
The prevailing wage;
Whether the position qualifies for EB-2 or EB-3 classification;
The language used in recruitment;
Which U.S. applicants must be considered qualified; and
Whether the foreign worker qualifies for the position.
The prevailing wage request, recruitment materials, ETA Form 9089, and I-140 petition must remain consistent. A discrepancy involving the duties, education, experience, work location, travel, or remote work can result in an audit or denial.
Can the Employer Require a Particular Degree?
An employer may require a degree when the degree is an appropriate minimum requirement for the position.
The employer must decide whether it will accept only one specific field of study or several related fields. It must also determine whether it will accept a combination of education and experience as an alternative.
These decisions should be made before the prevailing wage request is filed. USCIS will later examine whether the foreign worker possessed the required education by the PERM priority date.
When the employee earned a degree outside the United States, a credential evaluation may be necessary to determine its U.S. educational equivalency.
Can Experience Gained With the Sponsoring Employer Be Used?
Sometimes. This is one of the most important issues to examine before starting a PERM case.
An employer generally cannot use experience the foreign worker gained with the sponsoring employer if the worker gained that experience in a position that was substantially comparable to the offered position. A position is generally considered substantially comparable when it involves performing the same job duties more than 50 percent of the time.
Experience gained with the employer may potentially be used when:
The earlier position was not substantially comparable to the offered position;
The earlier experience was gained with a legally separate employer;
The employer can establish that it is no longer feasible to train a worker for the position; or
Another applicable exception applies.
The employer may need organizational charts, job descriptions, payroll records, personnel documents, and a detailed comparison of the prior and offered positions. Addressing this issue after recruitment has already begun may be too late.
Step Two: Obtain a Prevailing Wage Determination
The employer normally requests a prevailing wage determination from the Department of Labor before beginning recruitment.
The prevailing wage is based on factors that may include:
The occupation;
The job duties;
The minimum education and experience;
Required licenses, certifications, and special skills;
Supervisory duties; and
The geographic area of intended employment.
The prevailing wage establishes the minimum wage the employer must be prepared to pay once the foreign worker becomes a permanent resident and begins working in the sponsored position. The employer may pay more than the prevailing wage.
The wage the employee currently earns may be different. However, the employer must later demonstrate its continuing ability to pay the offered wage beginning on the PERM filing date.
Step Three: Conduct PERM Recruitment
After receiving the prevailing wage determination, the employer conducts recruitment to test whether qualified U.S. workers are available for the position.
For most professional positions, the required recruitment includes:
A 30-day job order with the appropriate state workforce agency;
Newspaper advertisements on two different Sundays;
A notice of filing posted at the employer’s worksite for at least 10 consecutive business days;
Notice through any applicable in-house media normally used for similar positions; and
At least three additional recruitment methods permitted by the regulations.
The additional recruitment methods may include:
The employer’s website;
A job-search website;
A job fair;
On-campus recruiting;
A trade or professional organization;
A private employment firm;
An employee-referral program with incentives;
A campus placement office;
A local or ethnic newspaper; or
Radio or television advertising.
Different requirements may apply to nonprofessional positions, college and university teachers, Schedule A cases, and other specially regulated occupations.
What Must a PERM Job Advertisement Include?
PERM advertisements generally must identify the employer, direct applicants where to submit their materials, describe the position sufficiently, identify the geographic area of employment, and avoid terms that are less favorable than those offered to the foreign worker.
An advertisement does not always need to contain every duty or requirement listed in the PERM application. However, it cannot contain requirements that are more restrictive than the application, and it cannot discourage potentially qualified U.S. workers from applying.
Recruitment dates also matter. The Department of Labor regulates when recruitment must occur, how long it must remain active, and how long the employer must wait before filing ETA Form 9089.
Does the Employer Have to Hire Every U.S. Applicant?
No. The employer must determine whether any U.S. applicant is able, willing, qualified, and available for the offered position.
The employer does not have to hire someone who:
Does not meet the position’s lawful minimum requirements;
Is not interested in the actual position;
Is unavailable for the job;
Cannot lawfully perform an essential job requirement; or
Withdraws from consideration.
The employer must nevertheless review applicants honestly and in good faith. It cannot reject an applicant merely because the foreign worker has stronger qualifications. The relevant question is whether the U.S. applicant meets the lawful minimum requirements, not whether the foreign worker is the better candidate.
When a résumé does not clearly establish whether an applicant possesses a required qualification, the employer may need to contact the applicant for additional information.
Who Reviews Applicants in a PERM Case?
The employer reviews and considers applicants. The foreign worker generally should not participate in reviewing résumés, interviewing applicants, or deciding whether applicants are qualified.
The employer’s immigration attorney may provide legal guidance about the requirements and recruitment process. However, the attorney should not improperly make the employer’s factual hiring decisions or discourage the consideration of potentially qualified U.S. workers.
The employer should document applicant contacts, interview results, and each lawful, job-related reason for rejection.
Step Four: Prepare the PERM Recruitment Report
After recruitment is complete, the employer prepares and signs a recruitment report.
The report describes:
The recruitment steps taken;
The number of applicants;
The number of applicants hired, if any;
The number of applicants rejected; and
The lawful, job-related reasons for the rejections.
The recruitment report ordinarily does not identify applicants by name. However, the employer must retain the résumés, applications, interview records, recruitment evidence, and other supporting documents in its PERM audit file.
The employer must retain the application and supporting documentation for five years from the filing date.
Step Five: File ETA Form 9089
If recruitment does not identify an able, willing, qualified, and available U.S. worker, the employer may file ETA Form 9089 through the Department of Labor’s Foreign Labor Application Gateway, commonly called FLAG.
In a standard filing, the employer does not submit its complete recruitment file with ETA Form 9089. Instead, the employer makes detailed representations and attestations concerning:
The company;
The permanent position;
The prevailing wage;
The recruitment process;
The recruitment results; and
The foreign worker’s education and experience.
The employer must possess documentation supporting every material statement. The application is signed under penalty of perjury, and the Department of Labor may require the employer to produce the supporting evidence through an audit.
What Is the PERM Priority Date?
The date the Department of Labor accepts ETA Form 9089 for filing generally becomes the foreign worker’s priority date.
The priority date establishes the worker’s place in line for an immigrant visa. Whether the worker may proceed immediately with the green card application depends on:
The employment-based preference category;
The worker’s country of chargeability; and
The applicable Department of State Visa Bulletin.
PERM approval does not eliminate an immigrant visa backlog. It preserves the priority date while the remaining stages move forward.
What Happens After ETA Form 9089 Is Filed?
The Department of Labor may:
Certify the application;
Select the application for an audit;
Require supervised recruitment; or
Deny the application.
PERM processing times change frequently. Employers and employees should review current Department of Labor processing information rather than rely on timelines from prior cases or older online articles.
What Is a PERM Audit?
A PERM audit is a request for evidence supporting the employer’s application. Some audits are random, while others appear to be triggered by facts reported in the application.
The Department of Labor may request:
Copies of recruitment materials;
Proof that advertisements were published;
Documentation of the state workforce agency job order;
The notice of filing;
Résumés and applications received;
Applicant contact records;
The recruitment report;
Documentation supporting each rejection;
Evidence supporting the position’s minimum requirements;
A business-necessity explanation;
Proof that the employer is an active and legitimate business; or
Evidence concerning a family, financial, or ownership relationship between the employer and foreign worker.
An audit does not necessarily mean the application will be denied. However, an employer that cannot produce complete and consistent documentation may receive a denial even if no qualified U.S. worker applied.
What Is PERM Supervised Recruitment?
Supervised recruitment is a recruitment process conducted under the Department of Labor’s direction.
The Department of Labor may review or dictate the advertisement, determine where and when it must be published, and control how applicants respond. The employer must evaluate the applicants and submit a detailed report to the agency.
Supervised recruitment can add substantial time and expense to a PERM case. It may be ordered when the Department of Labor concludes that additional testing of the labor market is appropriate.
How Long Is an Approved PERM Labor Certification Valid?
An approved PERM labor certification is generally valid for 180 days.
The employer must file the I-140 immigrant petition with USCIS before the labor certification expires. If the I-140 petition is not timely filed, the certification generally can no longer be used, and the employer may need to start the labor certification process again.
Step Six: File the I-140 Immigrant Petition
After PERM certification, the employer files an I-140 immigrant petition with USCIS. At the I-140 stage, USCIS examines whether:
The position qualifies for the requested EB-2 or EB-3 classification;
The foreign worker satisfied all education, experience, and skill requirements by the priority date;
The worker’s qualifications are supported by reliable evidence; and
The employer has had the continuing ability to pay the offered wage from the priority date forward.
The employer may need to provide tax returns, annual reports, audited financial statements, payroll records, or other financial documents. The foreign worker may need to provide diplomas, transcripts, credential evaluations, licenses, and detailed experience letters from former employers.
An approved PERM labor certification does not guarantee that USCIS will approve the I-140 petition.
Step Seven: Apply for the Green Card
When an immigrant visa is available, the foreign worker may complete the final stage through adjustment of status in the United States or immigrant visa processing abroad.
A worker who is eligible to complete the process in the United States files Form I-485 with USCIS. A worker completing the process outside the United States proceeds through the National Visa Center and a U.S. embassy or consulate.
During this stage, the government examines issues such as:
Immigration status and prior immigration violations;
Criminal history;
Medical admissibility;
Fraud or misrepresentation;
Prior removal or unlawful presence; and
Other grounds of inadmissibility.
Approval of PERM and the I-140 petition does not automatically resolve problems involving the worker’s individual eligibility for permanent residence.
Who Pays for the PERM Labor Certification Process?
The employer must pay the costs associated with obtaining the labor certification. These generally include:
Required recruitment and advertising costs;
The employer’s legal fees for the PERM process; and
Other expenses incurred to obtain the labor certification.
The employer cannot require the foreign worker to reimburse these expenses through a direct payment, payroll deduction, reduced wages, repayment agreement, or other arrangement.
A foreign worker may retain and pay a separate attorney to advise the worker about personal immigration interests. The parties may also allocate certain permissible costs arising during the I-140 and green card stages, subject to the law and their agreement.
Can a Small Business Sponsor an Employee Through PERM?
Yes. PERM sponsorship is not limited to large companies.
A small or recently established business must still demonstrate that:
It is a genuine operating employer;
The position is permanent and full time;
The job opportunity is open to qualified U.S. workers;
It will pay at least the prevailing wage; and
It has the ability to pay the offered wage.
The Department of Labor may examine the case more closely when the company has a very small workforce or when the foreign worker has a family relationship, ownership interest, or substantial control over the business. These circumstances do not necessarily prevent approval, but they require careful documentation of a bona fide job opportunity.
Can a Foreign Worker Change Jobs While PERM Is Pending?
PERM is based on a particular employer, position, work location, and intended permanent employment relationship. It cannot ordinarily be transferred from one employer to another.
The foreign worker is not necessarily required to work for the sponsoring employer while PERM is pending. However, the employer must continue to intend to employ the worker in the sponsored position after permanent residence is granted, and the worker must continue to intend to accept the offered employment.
If either party no longer intends to proceed with the permanent position, the case generally cannot continue as originally planned.
A separate portability provision may become available later when an adjustment of status application has remained pending for at least 180 days and the worker moves to a new position in the same or a similar occupational classification. That provision does not make a pending PERM application transferable.
What Changes May Require a New PERM Case?
A new PERM case may be necessary if there is a material change involving:
The sponsoring employer;
The permanent position;
The job duties;
The education or experience requirements;
The primary worksite;
The area of intended employment;
The remote-work arrangement;
Required travel;
The corporate structure; or
The intended employment relationship.
Not every business change requires starting over. Some corporate successors may preserve an existing case if they assume the predecessor’s relevant rights, duties, obligations, and liabilities. Any anticipated change should be evaluated before it occurs whenever possible.
Common Reasons PERM Applications Are Denied
PERM applications are frequently denied because of procedural errors or insufficient documentation rather than because a qualified U.S. worker was available.
Common problems include:
Inconsistent job duties or requirements;
An incorrect occupational classification;
An inaccurate work location;
Defective recruitment language;
Advertisements published on the wrong dates;
Recruitment conducted outside the permitted period;
Failure to properly post the notice of filing;
Failure to contact or consider potentially qualified applicants;
Rejection reasons that are not lawful and job related;
Requirements exceeding the employer’s actual minimum requirements;
Improper use of experience gained with the sponsoring employer;
Inconsistencies between the prevailing wage request, recruitment, and ETA Form 9089;
Incomplete or late responses to an audit; and
Failure to retain required records.
The Department of Labor expects strict compliance with the PERM regulations. A mistake that appears minor may result in an audit or denial after the employer has already invested substantial time in the process.
Frequently Asked Questions About PERM Labor Certification
What does PERM stand for?
PERM refers to the Department of Labor’s permanent labor certification process. It is the system used for most employer-sponsored EB-2 and EB-3 green card cases.
Does a pending PERM application give the employee legal status?
No. A pending PERM application does not provide lawful immigration status, extend an existing status, authorize employment, or permit international travel. The employee must independently maintain any required immigration status and work authorization.
Is there a government filing fee for ETA Form 9089?
The Department of Labor traditionally has not charged a filing fee for ETA Form 9089. The employer is still responsible for recruitment costs, legal fees, and other expenses associated with obtaining the labor certification. Employers should confirm the current fee rules when beginning a case.
Does the employee have to work for the employer while PERM is pending?
Not necessarily. PERM concerns an offer of future permanent employment. However, the employer and employee must genuinely intend to proceed with the sponsored position after permanent residence is granted.
Can the employer reject all U.S. applicants?
Only if each applicant may lawfully be rejected for a job-related reason. An employer cannot reject a minimally qualified U.S. worker simply because the sponsored employee is more qualified.
Can the employee pay for PERM?
The employer must pay the costs associated with obtaining the labor certification, including required recruitment expenses and the employer’s PERM legal fees. The employer cannot shift those expenses to the foreign worker.
Can PERM be transferred to another employer?
Generally, no. A PERM labor certification is based on the sponsoring employer’s specific job opportunity. A new employer ordinarily must complete its own labor certification process.
Can a small employer file a PERM application?
Yes. A small employer may sponsor a foreign worker if it offers a genuine permanent, full-time position, complies with the recruitment requirements, and can demonstrate its ability to pay the offered wage.
What happens after PERM is approved?
The employer normally files an I-140 immigrant petition with USCIS within the labor certification’s 180-day validity period. The employee later applies for adjustment of status or an immigrant visa when a visa number is available.
How long does the PERM process take?
The timeline depends on current government processing, recruitment requirements, whether the case is audited, and the availability of an immigrant visa. Because processing times change, employers should not rely on an estimate from an older case or article.
When Should an Employer Start the PERM Process?
Employers should begin planning as early as reasonably possible. The complete employment-based green card process may include:
Developing the position;
Obtaining the prevailing wage;
Conducting recruitment;
Filing and obtaining a decision on PERM;
Filing the I-140 petition;
Waiting for immigrant visa availability; and
Completing adjustment of status or consular processing.
Early planning is particularly important when an H-1B employee is approaching the six-year limit. A labor certification or I-140 petition filed at the appropriate time may allow some H-1B employees to qualify for extensions beyond six years. Waiting too long may eliminate or delay those options.
When Should an Employer Consult a PERM Attorney?
Employers should obtain legal advice before submitting a prevailing wage request or beginning recruitment. Early review is especially important when:
The employee gained qualifying experience with the sponsoring employer;
The position allows remote or hybrid work;
The employee will work at multiple locations;
The job requires travel;
The employer is small or recently established;
The employee has an ownership or family relationship with the employer;
The position has unusual degree, experience, or skill requirements;
The company expects a move, merger, acquisition, or reorganization;
The employee is approaching the end of H-1B status; or
A prior PERM application was audited or denied.
Katsivalis & Anderson advises employers and foreign workers throughout the employment-based permanent residence process. Our employment immigration practice includes PERM case planning, prevailing wage requests, recruitment, ETA Form 9089 filings, audit responses, supervised recruitment, BALCA review, I-140 petitions, adjustment of status, consular processing, and coordination with an employee’s temporary immigration status.
-Written and reviewed by Laureen Anderson, Immigration Attorney at Katsivalis & Anderson, September 2026
