Most employment-based green card categories, especially EB-2 and EB-3, cannot move forward until an employer completes PERM labor certification, a process run by the U.S. Department of Labor. PERM requires an employer to test the U.S. labor market and document the results before a foreign national's green card petition can even be filed, and the process is long, detail-heavy, and unforgiving of paperwork mistakes.
At Portner & Shure, P.A., our business immigration attorneys help employers and foreign national employees move through the PERM process correctly the first time, from the prevailing wage request through recruitment and filing. Call us today at (410) 995-1515 to schedule a consultation.
What Is PERM Labor Certification?
PERM stands for Program Electronic Review Management, the Department of Labor's electronic system for processing permanent labor certification applications. The term is now used to describe the entire labor certification process, which is overseen by the Employment and Training Administration (ETA) within the DOL.
Before a U.S. employer can sponsor a foreign worker for many employment-based green card categories, the employer must obtain a certified labor certification from the DOL. This certification confirms that there are not enough able, willing, qualified, and available U.S. workers for the position at the location where the job is offered, and that hiring a foreign worker will not adversely affect the wages and working conditions of U.S. workers in similar jobs.
Learn more about our business immigration services and how we help employers navigate PERM and other sponsorship requirements.
The PERM Process: Step by Step
While the details can get complicated, the PERM process generally follows three major stages before a case is ready for adjudication:
- Prevailing wage determination. The employer files a request with the DOL's National Prevailing Wage Center (NPWC) to establish the minimum wage that must be offered for the position, based on the job duties, requirements, and geographic area of employment. A PERM application cannot proceed until this determination is issued, and the employer must either begin recruitment or file the ETA-9089 while the determination is still valid.
- Recruitment. Once the prevailing wage is set, the employer must conduct a defined set of recruitment steps to test whether qualified U.S. workers are available for the position, and must document the results of that recruitment in detail.
- Filing Form ETA-9089. After recruitment is complete and the required waiting period has passed, the employer files the Application for Permanent Employment Certification (Form ETA-9089) electronically with the DOL, which then reviews the case and either certifies it, denies it, or selects it for audit.
Every step in this sequence has to happen in the right order and within specific timeframes. An error at the prevailing wage stage, for example, can force an employer to redo recruitment entirely.
PERM Recruitment Requirements
The recruitment steps required for a PERM application depend on whether the position is classified as professional (generally, one that normally requires at least a bachelor's degree) or non-professional. At minimum, all employers must:
- Place a job order with the State Workforce Agency serving the area of intended employment, running for at least 30 consecutive calendar days.
- Publish two print advertisements on two different Sundays in a newspaper of general circulation in the area of intended employment.
- Post an internal Notice of Filing at the job site for 10 consecutive business days, informing employees that a labor certification application is being filed for the position.
For professional occupations, the employer must also complete three additional recruitment steps chosen from a list of options set out by the DOL, such as a job fair, employer website posting, campus recruiting, or trade or professional organization listing.
The recruitment steps must be completed no more than 180 days, and at least 30 days, before the ETA-9089 is filed. In practice, this means the employer must wait at least 30 days after the job order and print ads end before filing, so that U.S. workers who responded have a fair opportunity to be considered. Filing before this waiting period has run is a common and avoidable reason for denial.
Every U.S. worker who applies must be considered and, if rejected, the rejection must be for a lawful, job-related reason that is documented in a written recruitment report.
What to Expect: PERM Processing Times
PERM processing times fluctuate and have varied significantly over the past few years, so employers should treat any specific timeframe as a snapshot rather than a guarantee. The DOL publishes current processing times by filing month for prevailing wage requests and PERM applications at flag.dol.gov/processingtimes, and it is worth checking that page directly when timing matters for a specific case.
As a general matter, employers should plan for the full process, from the prevailing wage request through recruitment through DOL review of the ETA-9089, to take many months from start to certification, with cases selected for audit taking substantially longer. There is no premium or expedited processing option for PERM.
After PERM Is Certified: Filing the I-140
Once the DOL certifies the labor certification, the employer's next step is to file Form I-140, Immigrant Petition for Alien Worker, with U.S. Citizenship and Immigration Services. The certified labor certification is submitted as supporting evidence with the I-140, along with proof of the foreign worker's qualifications and, where required, evidence of the employer's ability to pay the offered wage.
Once the I-140 is approved and the worker's priority date is current, the final step is applying for adjustment of status or completing consular processing. Learn more about our broader immigration services for employers and employees navigating this full sponsorship path.
Common Reasons PERM Applications Are Denied or Audited
PERM cases can be selected for audit at random, but certain issues in an application make an audit, and ultimately a denial, far more likely. Common problems include:
- Recruitment documentation that is incomplete, inconsistent, or does not match the job description filed on the ETA-9089.
- A Notice of Filing posted for fewer than 10 business days, or missing required content.
- Offering a wage below the prevailing wage determination, often because recruitment started before the wage determination was finalized.
- Job requirements that are unusually restrictive or narrowly tailored to match one candidate's background, without a documented business necessity for those requirements.
- Rejecting U.S. applicants for reasons that are not clearly job-related or lawful, or failing to document a lawful basis for each rejection.
- Insufficient evidence that the employer has the financial ability to pay the offered wage.
A denial does not always end the process, but it can mean starting recruitment over or being placed into DOL-supervised recruitment for future filings, both of which add significant time and cost.
How a PERM Labor Certification Lawyer Can Help
Because PERM has strict timing rules, detailed documentation requirements, and no room to correct errors after filing, employers benefit from having an attorney manage the process from the prevailing wage request forward. An attorney from Portner & Shure, P.A. can help structure the job posting and requirements to reflect actual business needs, coordinate the required recruitment steps and deadlines, and build a recruitment file designed to withstand an audit if one is issued.
Our business immigration attorneys also help employers plan the I-140 filing that follows PERM certification, so the transition from labor certification to green card petition happens without unnecessary delay. Call us today at (410) 995-1515 to talk through your company's sponsorship needs.
Speak to a Business Immigration Attorney Today
Whether you are sponsoring your first employee for a green card or managing PERM cases for multiple positions, Portner & Shure, P.A. can help you plan the process, avoid common pitfalls, and keep your case on track.
Contact us today at (410) 995-1515 to discuss your PERM labor certification and green card sponsorship options.
