PERM LABOR CERTIFICATION
A permanent labor certification issued by the Department of Labor (DOL) authorizes an employer to hire a foreign worker for a permanent job opportunity in the United States. Typically, before the employer can file an immigration petition with the Department of Homeland Security’s U.S. Citizenship and Immigration Services (USCIS), which oversees immigration and labor certification matters, the employer must first obtain a certified labor certification from the DOL’s Employment and Training Administration (ETA).
The DOL must certify that there are not enough qualified, willing, and available United States workers to fill the permanent job opportunity within the area of intended employment. Additionally, the DOL ensures that employing the foreign worker will not adversely affect the wages and working conditions of U.S. workers similarly employed. This labor certification process safeguards the domestic labor market by confirming the lack of sufficient U.S. workers for the position.
In March 2005, the Department of Labor (DOL) introduced a new system for filing labor certification applications called Program Electronic Review Management (PERM).
The PERM labor certification serves as a crucial step in the employment-based immigration system, enabling employers to hire foreign workers when the U.S. labor market cannot fulfill their staffing needs.
Introduction to PERM labor certification
The PERM process is a foundational element for U.S. employers who wish to sponsor a foreign worker for permanent employment in the United States. Administered by the DOL, permanent labor certification is designed to ensure that the hiring of a foreign worker will not negatively impact the job opportunities, wages, or working conditions of U.S. workers. The PERM labor certification process requires employers to follow a series of steps, including prevailing wage determination, a thorough labor market test, and the submission of a PERM application. By adhering to these requirements, the PERM process helps maintain the integrity of the U.S. labor market while providing a pathway for foreign nationals to obtain permanent employment certification and, ultimately, lawful permanent residence.
Labor Market
The labor market is at the heart of the PERM labor certification process. Before an employer can move forward with hiring a foreign worker for a permanent position, they must conduct a comprehensive labor market test. This test is intended to confirm that there are no able, willing, qualified, and available U.S. workers for the job opportunity in the area of intended employment. Employers are required to actively recruit U.S. workers and meticulously document every step of the process, including copies of job advertisements, resumes received, and notes from candidate reviews. The labor market test is a critical safeguard, ensuring that the employment of a foreign worker does not displace similarly qualified U.S. workers and that the labor certification process upholds the standards set by the Department of Labor.
Process Overview
The entire PERM labor certification process involves several steps, including preparation of recruitment, filing the application, DOL review, and final adjudication.
Under PERM, employers can submit an application for permanent employment certification (Form ETA 9089) directly to the DOL online or by mail. The DOL’s adjudication timeline varies, but it typically ranges from three to ten months. Processing times can be affected by factors such as DOL backlogs, audits, and the complexity of the case. The filing date of Form ETA 9089 establishes the priority date for the applicant, which determines their place in line for an immigrant visa.
Form ETA 9089 is an attestation-based filing. The employer must:
- Answer a series of “yes” or “no” questions;
- Describe the offered position, job duties, and minimum requirements; and
- Confirm compliance with all regulatory recruitment and wage obligations.
The application filed date is critical for tracking deadlines and eligibility for subsequent immigration steps. Although supporting documents are not submitted at the time of filing, the employer must maintain all required documentation and produce it if the DOL conducts an audit. At the conclusion of the process, the DOL will issue a final determination, which may be an approval or denial of the labor certification.
Prevailing Wage Requirement
Before filing a PERM application, the employer must obtain a Prevailing Wage Determination (PWD) from the DOL. The prevailing wage rate is set to ensure the offered wage is comparable to those paid to similarly employed workers in the area of intended employment. The employer must agree to pay at least 100% of the prevailing wage once the foreign national becomes a lawful permanent resident and begins working in the offered position.
The DOL currently uses a four-level wage system. Guaranteed bonuses or commissions may be included in meeting the prevailing wage requirement, but non-guaranteed compensation cannot be counted.
Recruitment Requirements Under PERM
PERM requires “real world” recruitment conducted within the six-month period immediately preceding the filing of the application. Pre filing recruitment is a mandatory phase where employers must undertake specific recruitment activities before submitting the PERM application. The application may not be filed until at least 30 days have passed since the last recruitment step.
All employers must complete the following recruitment steps:
- Post a notice of the job opportunity at the job location (worksite) for at least 10 business days;
- Place a job order with the State Workforce Agency (SWA) to advertise the job opening to U.S. workers; and
- Run two Sunday newspaper advertisements in a newspaper of general circulation in the area of intended employment.
If the position qualifies as a professional occupation, the employer must complete three additional recruitment steps from a list that includes. The occupation involved determines whether these professional occupation recruitment standards apply:
- Job fairs
- Employer website postings
- Third-party job search websites (e.g., Indeed, Monster)
- On-campus recruiting (if no experience required)
- Trade or professional journals
- Headhunter services
- Employee referral programs (with incentives)
- Local ethnic newspapers
- Radio or television advertisements
Following recruitment, the employer must prepare and retain a detailed recruitment report describing the steps taken, the number of applicants, and lawful, job-related reasons for rejecting U.S. applicants. The employer must demonstrate there are not sufficient United States workers available for the job opening. Jobs require specific qualifications and experience, which must be reflected in the recruitment process. The employer must interview all qualified U.S. workers and hire any who are able, willing, qualified, and available.
Audits, Compliance, and Consequences
The DOL may audit PERM applications based on established selection criteria or randomly for quality control purposes. If audited, the employer must respond within 30 days.
Failure to respond timely or failure to maintain proper documentation can result in:
- Denial of the application;
- Supervised recruitment; or
- A two-year bar from using the PERM process.
Because of these consequences, strict compliance before filing is essential.
Business Necessity and Special Requirements
If an employer includes special job requirements that exceed the normal standards for the occupation, the employer must demonstrate “business necessity.” This means showing that the requirement bears a reasonable relationship to the job. The job description must accurately reflect the employer’s actual minimum requirements.
Examples include:
- Foreign language requirements where communication with a substantial portion of customers or employees necessitates it;
- Unique combinations of job duties common within the employer’s operations or industry;
- Positions that require an advanced degree or an equivalent foreign degree, or where individuals with exceptional ability are needed for the role.
Employers should retain documentation supporting these justifications, such as demographic data or business plans.
DOL Determination and Appeals
The DOL will issue a written approval or denial. This decision is based on the permanent labor certification application submitted by the employer. If denied, the employer may:
- File a Motion for Reconsideration with the Certifying Officer; or
- Appeal directly to the Board of Alien Labor Certification Appeals (BALCA).
During the appeals process, an attorney represents the employer or employee by providing legal guidance and ensuring compliance, but does not determine job requirements or review resumes. The employer’s organization is responsible for ensuring compliance with all regulatory requirements and for designating appropriate representatives, such as an agent or attorney, for the application process.
New evidence generally cannot be submitted unless it existed at the time of filing and was required to be maintained.
Even after approval, a labor certification may be revoked for fraud, misrepresentation, or material error.
Compliance with State and Local Equal Pay Transparency Laws in Job Postings
The PERM process now presents an additional compliance challenge: the growing number of state and local Equal Pay Transparency (EPT) laws requiring employers to disclose the minimum and maximum wage range in job postings.
Accordingly, careful analysis is required to determine:
- Whether an applicable EPT law covers the employer;
- Whether the EPT law applies to the specific PERM position, including through potential “long-arm” jurisdiction if the role could be performed within that state or locality—even if the employer is headquartered elsewhere; and
- How to properly reconcile state or local wage transparency requirements with federal PERM regulations governing prevailing wage determinations and salary notice obligations.
Retention of Records
The employer is required to retain copies of the permanent employment certification applications and all supporting documentation for a period of five years from the date the ETA Form 9089 is filed. For instance, although the NPWC prevailing wage determination documents are not submitted with the application itself, the employer must keep these records for five years following the application filing date.
Filing On-Line or By Mail
The employer has the option of filing ETA Form 9089 electronically (using web-based forms and instructions) or by mail. However, DOL strongly recommends that employers file electronically.
PERM for Foreign Worker in H-1B Status
Many foreign workers who seek lawful permanent resident status through the PERM process are currently in the United States in H-1B nonimmigrant status. Therefore, determining the duration of their H-1B status and their ability to extend it is crucial in determining when to file a PERM application. This maximizes the chances of maintaining their lawful status and work authorization during the PERM process. The priority date is established by the filing date of the PERM application, which determines eligibility for permanent residency under specific preference categories such as EB-2 and EB-3.
A foreign worker can stay in the United States in H-1B status for a maximum of six years. After this period, they must leave the country for at least a year before reentering in H-1B classification.
However, if a PERM application has been initiated, the foreign worker can extend their H-1B status beyond six years. Specifically, they can obtain a one-year extension if the PERM application or the I-140 immigrant petition has been pending for more than 365 days. If the PERM application is approved, the extension will be granted only if the I-140 immigrant petition was submitted within 180 days of approval before the certified PERM application expires. Premium processing is available for I-140 petitions, allowing for expedited adjudication by USCIS for an additional fee.
In another scenario, if the PERM application and I-140 immigrant petition are approved, but the foreign worker is unable to pursue the adjustment process due to the unavailability of an immigrant visa, they can obtain a three-year extension of H-1B status beyond the six years.
PERM for Foreign Worker in L-1 Status
The PERM process is generally not pursued for foreign workers in L-1A status because they can typically seek permanent residence through an EB-1 multinational manager or executive I-140 immigrant petition, which bypasses the PERM labor certification process. However, if the foreign worker is in L-1B status or, despite holding L-1A status, did not occupy a qualifying managerial or executive role before transferring to the United States, then the PERM labor certification process must be followed. In such cases, it is important to assess how long the foreign worker has been in the U.S. under L-1B or, if applicable, L-1A status, and how much longer they are authorized to maintain that status. The permanent labor certification process and foreign labor certification are critical for maintaining status and eligibility for permanent residency.
A foreign worker in L-1B status, who was admitted based on their specialized knowledge, is subject to a five-year maximum period of admission. A foreign worker who was employed in a nonmanagerial capacity prior to their transfer, but is admitted in L-1A status in order to assume a qualifying managerial or executive position, is permitted to remain in L-1A status for up to seven years.
Much like the foreign workers in H-1B status, at the end of the maximum period of admission, the foreign worker must change status or depart the country, although they may be eligible to return to the United States in H-1B or L-1 status after one year abroad. However, unlike the foreign worker in H-1B status, those in L status do not have the benefit extending their stay in the United States beyond the maximum period allowed based on their pursuit of employment-based lawful permanent residence.
Therefore, when a PERM application is necessary for a foreign worker in L-1 status facing substantial immigrant visa backlogs, it is crucial to provide thorough guidance. Both the foreign worker and employer should be encouraged to start the PERM labor certification process promptly to ensure the worker can maintain valid U.S. status throughout the journey toward obtaining lawful permanent residency. Processing times for each stage of the foreign labor certification process, including the prevailing wage determination, recruitment, and DOL review, can significantly impact the ability of foreign workers to maintain lawful status.
Employment Based Green Card
Securing an employment-based green card is the final objective for many foreign workers and their sponsoring employers after successfully navigating the PERM labor certification process. Once the PERM application is certified, the employer must file an I-140 Immigrant Worker Petition with USCIS within six months. At this stage, the employer must demonstrate the ability to pay the prevailing wage and confirm that the foreign national meets all the job requirements specified in the PERM application. Following I-140 approval, the foreign worker can apply for permanent resident status through an I-485 Application to Adjust Status (if in the U.S.) or a DS-260 Immigrant Visa Application (if abroad). This multi-step process ultimately leads to permanent residence, allowing the foreign national to live and work in the United States on a long-term basis. The employer must remain compliant throughout, ensuring all aspects of the labor certification and green card process are properly documented and timely filed.
