Permanent Labor Certification (PERM) for Employment-Based Green Cards

Permanent Labor Certification (PERM) for Employment-Based Green Cards

The Permanent Labor Certification (PERM) process allows U.S. employers to sponsor foreign workers for permanent residency (green card status) based on a proven need for their specialized skills. PERM is the first step in most employment-based green card applications, ensuring that hiring foreign nationals does not negatively impact U.S. workers.

Our firm provides experienced legal guidance to employers navigating the complex PERM process, ensuring compliance with labor regulations and maximizing the chances of approval.

Who Needs PERM Labor Certification?

PERM is required for most EB-2 (Advanced Degree Professionals) and EB-3 (Skilled and Unskilled Workers) green card applicants. It applies when:

• A U.S. employer is offering a permanent, full-time position to a foreign national.
• The position requires skills or qualifications that cannot be filled by available U.S. workers.
• The employer is willing to go through a rigorous recruitment process to prove the lack of qualified U.S. candidates.

Certain employment-based green cards, such as EB-1 (Extraordinary Ability, Outstanding Professors, and Multinational Executives) and National Interest Waivers (NIW) under EB-2, are exempt from PERM requirements.

The PERM Labor Certification Process

1. Job Description & Wage Determination
   • The employer must define the job title, duties, and minimum qualifications.
   • The Department of Labor (DOL) issues a prevailing wage determination (PWD) to ensure the offered salary meets industry standards.
2. Recruitment & Advertising
   • Employers must conduct extensive recruitment efforts to test the labor market before hiring a foreign worker.
   • The recruitment process includes:
     • Two Sunday newspaper advertisements in a major local publication.
     • A job posting with the state workforce agency for at least 30 days.
     • Three additional recruitment methods, such as:
       • Job fairs
       • Employer website posting
       • Industry-related job boards
       • Radio or television ads
       • Employee referral programs
3. Reviewing & Documenting Recruitment Results
   • The employer must review all applications received and document why U.S. applicants did not meet the job qualifications.
   • A detailed recruitment report must be prepared but is not submitted unless requested in an audit.
4. Filing Form ETA-9089 (PERM Application)
   • Once recruitment is completed, the employer files Form ETA-9089 with the DOL.
   • No fees are required for filing.
5. Department of Labor (DOL) Review & Decision
   • The DOL will process the PERM application, which may take several months.
   • The case may be subject to random audits or supervised recruitment if flagged for further review.
6. Approval & Next Steps
   • Once approved, the employer can proceed with the I-140 Immigrant Petition for Alien Worker with U.S. Citizenship and Immigration Services (USCIS).
   • Upon I-140 approval, the foreign worker may apply for a green card (adjustment of status or consular processing) when a visa is available.

Processing Times & Considerations

• Prevailing Wage Determination (PWD) – Typically 4 to 6 months.
• Recruitment Period – Must last at least 60 days.
• PERM Application Processing – Generally 6 to 12 months (longer if selected for audit).
• I-140 Processing – Takes several months, but premium processing is available.

Delays can occur if:

• The job description or recruitment steps do not meet DOL requirements.
• The case is selected for random audits or supervised recruitment.
• The employer does not properly document why U.S. applicants were rejected.

Benefits of the PERM Process

• Pathway to a Green Card – The first step for employment-based permanent residency.
• No Employer Fees for PERM Filing – The DOL does not charge a fee for the PERM application.
• Premium Processing for I-140 – After PERM approval, the employer can file the I-140 petition with expedited processing options.
• Ability to Extend H-1B Beyond Six Years – A pending PERM application can allow H-1B visa holders to extend their stay while waiting for a green card.

Challenges in the PERM Process

• Strict Recruitment Requirements – Employers must follow DOL-mandated recruitment steps precisely.
• Limited Job Flexibility – Any changes to the job title, location, or duties after filing may require a new PERM application.
• Long Processing Times – The DOL backlog can cause significant delays in obtaining labor certification.
• Audit Risks – Cases may be selected for random audits, requiring additional documentation and extending processing times.

How Our Firm Can Help

• Job Description & Wage Analysis – Ensuring the position meets all legal and industry requirements.
• DOL Compliance & Recruitment Guidance – Assisting with job postings, recruitment documentation, and labor market testing.
• Form ETA-9089 Preparation & Filing – Preparing and submitting the PERM application with accurate details.
• Audit & Appeal Representation – Handling DOL audits, denials, and appeals to ensure the best chance of approval.
• I-140 & Adjustment of Status Support – Guiding applicants through the next steps toward a green card.

Start Your PERM Application Today

Securing Permanent Labor Certification (PERM) is a complex process requiring careful planning and compliance with U.S. labor laws. Our experienced attorneys help employers and foreign workers navigate the system with confidence.

Contact our firm today to start your employment-based green card process.