PERM Labor Certification Guide for Employment-Based Green Cards
If you are interested in getting an employer sponsored green card, you will likely need to know about the PERM process.
When an employer wants to sponsor a foreign worker for many types of employment-based green cards, the employer often must first obtain an approved labor certification from the Department of Labor.
In this guide, I’ll explain what you need to know about the PERM labor certification process. If you have any questions, feel free to email us directly at
contact@ashoorilaw.com.
What is the PERM labor certification?
The PERM (Program Electronic Review Management) system is a way of obtaining a labor certification from the Department of Labor. Obtaining an approved labor certification from the Department of Labor is the first step in obtaining an employer sponsored green card.
The PERM labor certification process is completed by the employer. Through various recruitment procedures, the PERM process ensures that there are no qualified American workers for the job that the foreign national is being sponsored for.
This certification is required for some green card categories. It is required for most EB-2 and EB-3 cases, unless you qualify for an exception such as the EB-2 National Interest Waiver or certain Schedule A occupations.
Additionally, the PERM labor certification is approved by the Department of Labor. If it is required in your case, you generally cannot continue with the immigrant visa or green card application process until it is approved.
Reminder: An approved PERM labor certification is not lawful status. It is only the first step in getting approved for a green card. PERM labor certification is not required to obtain every type of green card. It is generally required for most EB-3 cases and many EB-2 cases, but other employment-based and all family-based categories follow different rules.
Why should you complete the PERM labor certification?
There are many reasons why an employer may want to complete the PERM labor certification process. Here are just a few:
You can hire a permanent foreign worker.
This is the most significant benefit associated with the PERM labor certification. Once you have an approved PERM labor certification, you can file a Form I-140 immigration petition for permanent residence on behalf of a foreign worker. This is known as sponsoring the worker.
If you wish to hire a foreign worker and sponsor them for a green card, using the PERM labor certification process is a great option.
It may be a more suitable employment-based green card route
If you are hoping to sponsor a foreign national, the employment-based green card through the PERM labor certification can be an excellent option.
It can be faster and more straightforward than some other options, but timelines and complexity vary by case and government processing backlogs. For example, the EB-1 green card does not require a PERM labor certification. However, the requirements are stricter than the EB-2 and EB-3 green cards.
Another way of getting a green card is through family-based petitions. These are different from employment-based green cards because your family sponsors you rather than your employer.
For instance, Family-based green cards do not require PERM labor certification. In some preference categories, family-based wait times can be quite long, while in others (such as certain immediate-relative cases) they may be shorter than EB-2 or EB-3.
Whether the PERM route is a better option depends on the person’s specific family and employment situation.
What are the requirements for the PERM labor certification?
In order for your PERM labor certification to be approved, you must meet several requirements. They are discussed below. My team and I would be happy to help you determine if you meet these conditions.
| Requirement | Explanation |
|---|---|
| There must be a valid job offer. | The employer must have made a valid job offer to the foreign beneficiary. The employer should have an IRS tax identification number, a bona fide place of business, and reliable contact information. The employer must have an employer-employee relationship with the foreign beneficiary. This means they must have the ability to control the work of the beneficiary through hiring, paying, supervising, and firing them. A valid job offer can be shown through a contract between the employer and the beneficiary. |
| The beneficiary must be fairly compensated for their work. | The employer must be paying the beneficiary fairly for their work. This means that they must pay equal to or more than the prevailing wage. The prevailing wage is set by the Department of Labor. The employer must request the prevailing wage from the Department of Labor. The prevailing wage, as well as the salary for the position, must be shared on the PERM labor certification application. |
| Attempts to recruit American workers must have been made. | Before your labor certification can be approved, you must demonstrate that there are no qualified American workers for the job. To prove this, you must go through a recruitment process. This includes posting a job order with the State Workforce Agency and placing the required advertisements and completing other recruitment steps in accordance with PERM regulations. More information about the requirements for the recruitment process will be provided later in the guide. |
There must be a valid job offer.
The employer must have made a valid job offer to the foreign beneficiary.
The employer should have:
- An IRS tax identification number
- A bona fide place of business
- Reliable contact information
Additionally, an employer-employee relationship with the foreign beneficiary. This means they must have the ability to control the work of the beneficiary through hiring, paying, supervising, and firing them.
A valid job offer can be shown through a contract between the employer and the beneficiary.
The beneficiary must be fairly compensated for their work.
The employer must be paying the beneficiary fairly for their work. This means that they must pay equal to or more than the prevailing wage.
The prevailing wage is set by the Department of Labor. The employer must request the prevailing wage from the Department of Labor. The prevailing wage, as well as the salary for the position, must be shared on the PERM labor certification application.
Attempts to recruit American workers must have been made.
Before your labor certification can be approved, you must demonstrate that there are no qualified American workers for the job. To prove this, you must go through a recruitment process.
This includes posting a job order with the State Workforce Agency and placing the required advertisements and completing other recruitment steps in accordance with PERM regulations.
More information about the requirements for the recruitment process will be provided later in the guide.
What is the process for getting a PERM labor certification?
Acquiring PERM labor certification is a multi-step process.
Below is a general list of steps:
| Step | What happens | Where it’s filed |
|---|---|---|
| Recruitment process | Employer completes required recruitment steps and reviews U.S. applicants. | (Recruitment steps under PERM rules; not a single “filing”) |
| File ETA-9089 (PERM application) | Employer submits Form ETA-9089 after completing recruitment without finding a qualified U.S. worker. | Department of Labor (electronically, typically through FLAG) |
| File I-140 | If PERM is approved, the employer may file Form I-140. | USCIS |
| Wait for priority date + next step | After I-140 approval, the worker must wait for the priority date to be current under the visa bulletin before the next green card stage. | (Visa bulletin timing) |
Recruitment Process
You must first extend a job offer to a foreign national and determine a PERM labor certification is appropriate. Then, you must ensure there are no qualified American workers for the job through the recruitment portion of the PERM process.
In this process, the employer must make it locally and publicly known that a job is available. If any qualified American workers apply for the job, they must be given priority ahead of the foreign beneficiary. If you do not hire any of the American applicants, you must have a valid reason.
The exact recruitment process will depend on if the job is a professional or nonprofessional job. Professional jobs are jobs that require at least a bachelor’s degree or its equivalent. Nonprofessional jobs are jobs that do not require a degree.
An immigration lawyer can confirm if the job is professional or nonprofessional if you are unsure.
| Professional Jobs | Nonprofessional Jobs |
|---|---|
| State Workforce Agency (SWA) job order for at least 30 days | SWA job order for at least 30 days |
| 2 consecutive Sunday newspaper ads. One Sunday ad can be replaced by a relevant professional journal ad | 2 consecutive Sunday newspaper ads |
At least 3 additional recruitment steps from this list:
|
No additional recruitment steps required |
Nonprofessional jobs have slightly less strict requirements. They must place a job order with the State Workforce Agency for at least 30 days. Additionally, the employer must place advertisements in two different Sunday editions of a newspaper of general circulation. These advertisements do not need to be consecutive. However, they are not required to make any other recruitment efforts.
All required recruitment efforts must be completed at least 30 days before you file the PERM application, to give U.S. workers a reasonable chance to apply. The recruitment used for the PERM case generally must not be more than 180 days old at the time of filing. This helps ensure that the job market has been tested recently.
Note: You must keep all of your documents showing proof of the recruitment process for up to 5 years in case of an audit.
Additionally, please be aware that you must keep all of your documents showing proof of the recruitment process for up to 5 years in case of an audit.
Submit Form ETA-9089
You must complete the recruitment process without finding a qualified American worker. You must also ensure that you meet all other requirements for the PERM labor certification.
If you do, you can complete and submit Form ETA-9089. Form ETA-9089 is the Application for Permanent Employment Certification.
This document is submitted to the Department of Labor electronically (online), typically through the Department of Labor’s filing system (FLAG).
Submit Form I-140
Form ETA-9089 is your PERM labor certification application. If the Department of Labor approves it, the petitioning employer may file an I-140 green card petition. If the Department of Labor does not approve it, you may not continue with the green card application process.
Form I-140 is the Immigrant Petition for Alien Workers. This document is submitted to the United States Citizenship and Immigration Services (USCIS). The Form I-140 must be submitted before the PERM labor certification expires.
More information about Form I-140 and the rest of the green card application process can be found by looking at the EB2 visa and EB3 visa service pages on our website.
Audits
Audits can be targeted or random. Targeted audits occur when the Department of Labor has concerns about your application. These can be triggered by inconsistencies in the documentation or lack of sufficient evidence that the PERM requirements are met.
For random audits, the Department of Labor will audit some applicants to ensure that the PERM labor certification process is effective. There is nothing to be done to prevent random audits. For this reason, it is extremely important that you keep all supporting PERM documents on file.
If you are selected for an audit, you will have 30 days to respond with the requested information. Here’s what you need to know if this happens:
- Audits can be targeted or random.
- Targeted audits may be triggered by inconsistencies or insufficient documentation.
- Random audits are used to confirm the PERM process is effective.
- If selected for an audit, you typically have 30 days to respond.
- Keeping supporting documents on file is extremely important.
What documents are needed for a PERM labor certification?
In order to prove that you meet the conditions for a PERM labor certification, several documents may be provided.
The following is a general list of documents that may be useful:
| Document |
|---|
| Contract between the beneficiary and the petitioner |
| Prevailing wage request |
| Newspapers with job advertisements |
| Job order submitted to the State Workforce Agency (SWA) |
This list is not exhaustive. Applicants may not need to include all of these.
What forms are required for a PERM labor certification?
Additionally, several forms are required throughout the PERM labor certification application process. The following will provide more information about some of them.Additionally, as with all other paperwork, you should keep copies of your forms for up to 5 years in case of an audit.
Form ETA-9089
Form ETA-9089 is the Application for Permanent Employment Certification. This form is your PERM labor certification application. The employer will complete this form and submit it to the Department of Labor.
The Department of Labor will use the information provided to determine if the PERM labor certification should be approved. The Form ETA-9089 asks questions about the employer, the attorney, the prevailing wage, the job, the recruitment process, and the beneficiary.
More information about Form ETA-9089 (Application for Permanent Employment Certification) is available on the U.S. Department of Labor website.
PERM labor certification fees
There is no fee associated with filing the PERM labor certification. However, there are fees associated with later aspects of the EB2/EB3 green card application process (such as filing the Form I-140 immigration petition).
There may also be fees for activities associated with the PERM labor certification, such as attorney’s fees or costs for placing job advertisements, photocopying, translating, or similar tasks.
Under Department of Labor rules, the employer must not seek or receive payment for activities related to obtaining permanent labor certification (including the employer’s attorney fees) and may not require the foreign worker to pay or reimburse these expenses.
PERM labor certification processing time
The total time it takes for your PERM labor certification application to be approved will depend on a variety of factors. Some of these factors include the time of year when you apply, your individual case, and if you are subject to an audit.
PERM applications that are not selected for audit typically take several months to be adjudicated, but actual processing times vary and can change over time. If your case is audited, the process can take significantly longer.
A PERM certification does not mean you have been approved for a green card. After the PERM labor certification is approved, you must obtain an approved Form I-140 and then wait for your priority date to become current under the visa bulletin. This stage can take many years for some foreign nationals in backlogged categories.
Common FAQs
- Q: What is PERM labor certification?
A: PERM labor certification is a process with the Department of Labor that many employers must complete before sponsoring a foreign worker for certain green cards. It is intended to show there are no qualified U.S. workers available for the job at the required wage. The process is employer driven and subject to strict recruitment and documentation rules.
- Q: What is PERM labor certification process?
A: The PERM process usually includes obtaining a prevailing wage, conducting required recruitment, and filing the PERM application with the Department of Labor. Employers must follow detailed advertising rules and document recruitment results. Because compliance is strict, errors can lead to denial or audit related delays.
- Q: How long does PERM labor certification take?
A: PERM timelines vary depending on prevailing wage processing, recruitment steps, and Department of Labor review. Audits can significantly extend processing time. Because each stage can take weeks or months, employers often begin the process early, especially when an employee’s current status has time limitations.
- Q: How to check status of PERM labor certification?
A: PERM status is typically tracked by the employer or the employer’s attorney through Department of Labor systems and notices. There is no public online status tool for workers similar to USCIS case tracking. Sponsored employees usually receive updates from the employer or counsel handling the PERM case.
- Q: How to file PERM labor certification?
A: PERM labor certification is filed by the employer after completing recruitment and wage determination steps. The employer submits the application electronically and must retain supporting documentation for compliance and possible audits. Because the employer is responsible for the process, many work with immigration counsel to ensure accuracy and compliance.
Conclusion
The PERM (Program Electronic Review Management) labor certification is the first step for many in obtaining an employer sponsored green card.
The PERM labor certification is completed by the employer. It is intended to demonstrate that there are no able, willing, qualified, and available U.S. workers for the job opportunity and that employing the foreign worker will not adversely affect U.S. workers. It is required for most people applying under the EB-2 and EB-3 categories, except for certain exceptions such as the EB-2 National Interest Waiver and some Schedule A occupations.
You should now have a much stronger understanding of the PERM labor certification, including the purpose, the requirements, and the application process.
Key takeaways
- PERM is an employer-run process required for many EB-2 and EB-3 cases, with some exceptions (such as NIW and certain Schedule A occupations).
- PERM is intended to show no able, willing, qualified, and available U.S. workers for the job opportunity and no adverse effect on U.S. wages and working conditions.
- PERM approval is not a green card or lawful status—it is an early step, followed by I-140 and then waiting for the priority date to be current.
- Keep PERM and recruitment records for 5 years in case of an audit.
If you have any questions about anything discussed in this guide or about the PERM labor certification in general, feel free to schedule a free consultation or email me at michael@ashoorilaw.com.
Michael Ashoori, Esq.
President of Ashoori Law
I’m a U.S. immigration lawyer and I help families, professionals, investors, and entrepreneurs get visas, green cards, and citizenship to the United States.
Since starting my law firm, I’ve helped thousands of people from all over the world with their immigration needs. I’m very passionate, hard-working, and committed to my clients.
Got a question? Send me an email.