EB-2 / EB-3: PERM Labor Certification
The PERM labor certification process is the most common pathway for U.S. employers to sponsor foreign nationals for permanent residency. This highly structured process requires an employer to test the U.S. labor market to demonstrate that there are no able, willing, and qualified U.S. workers for the sponsored position. At LBL, we provide end-to-end management of the PERM process, guiding employers and their valued employees through every technical step with precision and foresight.
Navigate the PERM process with an experienced legal partner.
Overview: The PERM Green Card Path
PERM, which stands for Program Electronic Review Management, is a system managed by the U.S. Department of Labor (DOL). Before an employer can file an immigrant petition (Form I-140) for a foreign worker under the EB-2 or EB-3 category, it must first obtain a certified PERM labor certification from the DOL.
The core purpose of PERM is to protect the U.S. labor market. By completing a series of mandatory recruitment steps, the employer proves that hiring a foreign worker will not displace a qualified U.S. worker. Once the PERM is certified, the employer can proceed with the immigration-focused stages of the green card process with USCIS.
The PERM Process: A Step-by-Step Overview
The PERM process is a meticulous, multi-stage journey with strict timelines. A single misstep can require restarting the entire process.
- Prevailing Wage Request (PWR): The employer files a request with the DOL to determine the minimum required wage for the position in its specific geographic area.
- Recruitment Campaign: Once the prevailing wage is issued, the employer must conduct a recruitment campaign to test the labor market. This includes mandatory steps like placing two Sunday newspaper ads, a 30-day posting with the State Workforce Agency (SWA), and an internal posting notice. For professional (EB-2) positions, additional recruitment steps are required.
- File Form ETA-9089: After a “quiet period” following the recruitment, the employer files the PERM application (Form ETA-9089) with the DOL, attesting that no qualified, willing, and available U.S. workers were found.
- DOL Decision or Audit: The DOL will either certify the application, deny it, or select it for an audit. An audit requires the employer to submit all of its recruitment documentation for review.
- File I-140 Immigrant Petition: Upon PERM certification, the employer has 180 days to file Form I-140 with U.S. Citizenship and Immigration Services (USCIS) on behalf of the employee.
- Final Green Card Application: Once the I-140 is approved and the employee’s “priority date” is current on the Visa Bulletin, they can file for their green card through Adjustment of Status (if in the U.S.) or Consular Processing (if abroad).
EB-2 and EB-3 Eligibility Categories
PERM supports two main green card categories, defined by the job requirements and the employee’s qualifications.
- EB-2 (Advanced Degree or Exceptional Ability): This category is for jobs that require an advanced degree (Master’s degree or higher) or a Bachelor’s degree plus five years of progressive, post-baccalaureate experience. The foreign national must possess these qualifications.
- EB-3 (Skilled Workers, Professionals, Other Workers): This category is more broad and includes:
- Skilled Workers: Jobs requiring at least two years of training or experience.
- Professionals: Jobs requiring at least a U.S. Bachelor’s degree or its foreign equivalent.
- Other Workers: Jobs requiring less than two years of training or experience (often referred to as “unskilled workers”).
A critical rule is that the employee must have met all job qualifications before the PERM was filed. Experience gained with the same sponsoring employer can only be used if the sponsored role is “substantially different” from past roles.
“Very good experience working with Luke and his associates, I have been working with this firm for last 6 years, the best part is timely responsiveness, submitting the paperwork work to USCIS…” – Srinivas
Common PERM Challenges
The PERM process is rigid and unforgiving. We help employers avoid common pitfalls, including:
Recruitment Errors
Missing a recruitment step, failing to document it correctly, or letting a timing window expire are the most common reasons for denial.
Incorrect Job Requirements
Drafting job duties that are overly restrictive or tailored to the foreign national's specific skills can trigger a DOL audit and a demand for a "Business Necessity" justification.
Prevailing Wage Issues
Receiving a prevailing wage that is higher than the company's budget or failing to meet it can halt the process.
DOL Audits
Audits are common and require a perfect paper trail. Being unprepared for an audit can lead to a denial.
Layoffs
Recent layoffs by the employer in the same or a related occupation can create significant complications.
Remote Work and SOC Codes
Incorrectly classifying the job (SOC code) or failing to properly address remote work arrangements can cause major issues.
How We Help
Our firm provides comprehensive, hands-on management of the entire PERM green card process for employers and their employees.
End-to-End Project Management
We manage every deadline and detail from the prevailing wage request through the final green card application.
Compliant Recruitment Oversight
We oversee the entire recruitment campaign, ensuring every ad is placed correctly and all documentation is meticulously preserved.
Strategic Job Descriptions
We work with you to draft accurate and compliant job descriptions and select the appropriate SOC code to minimize risk.
Audit-Ready PERM Files
We prepare every case as if it will be audited, ensuring a complete and defensible file is ready for DOL scrutiny.
Winning I-140 Petitions
After PERM certification, we prepare a strong I-140 petition, clearly documenting the company's ability to pay the offered wage and the employee's qualifications.
Visa Bulletin and Final Stage Strategy
We track priority dates and advise on the best strategy for the final Adjustment of Status or Consular Processing stage.
Frequently Asked Questions
Can the employee continue working while the PERM application is pending?
In many cases, yes. However, PERM approval itself does not provide work authorization or extend a person’s immigration status. The employee must independently maintain valid work authorization through another visa category or immigration status while the PERM process is underway.
What happens if a qualified U.S. worker applies during recruitment?
The employer may not proceed with the PERM application if a qualified, willing, and available U.S. worker is identified through the required recruitment process. The purpose of PERM is to confirm that no qualified U.S. workers are available for the position under the stated requirements.
Can Premium Processing be used for a PERM labor certification?
No. Premium Processing is not available for the PERM labor certification stage with the Department of Labor. However, Premium Processing may be available later for the Form I-140 immigrant petition once the PERM application has been certified.
What is a priority date, and why does it matter?
The priority date is generally the date the PERM application is filed with the Department of Labor. This date determines an employee’s place in line for an immigrant visa and becomes particularly important when visa backlogs affect a specific category or country of birth.
Can an employee change jobs during the PERM process?
Job changes can significantly affect a PERM case. Because the labor certification is tied to a specific employer, position, and set of job requirements, changing employers before key stages of the process are completed may require starting over with a new sponsorship process.
Can a remote position qualify for PERM sponsorship?
Yes. Remote and hybrid positions can qualify, but they require careful planning regarding worksite locations, prevailing wage determinations, recruitment strategy, and labor market testing requirements. These cases often involve additional compliance considerations.
What happens if the Department of Labor audits a PERM application?
An audit does not automatically mean there is a problem with the case. The Department of Labor may request recruitment records, business documentation, and supporting evidence to verify compliance with PERM regulations. Proper recordkeeping is critical throughout the process.
Can small businesses sponsor employees through the PERM process?
Yes. PERM sponsorship is available to businesses of various sizes. The employer must be able to demonstrate a legitimate job opportunity, comply with recruitment requirements, and establish the ability to pay the offered wage during the later immigration stages.
Does PERM require the employee to remain outside the United States?
No. Many PERM applicants live and work in the United States while the process is pending. Others may complete the process from abroad through consular processing. The appropriate strategy depends on the employee’s immigration status and long-term plans.
What are the most common reasons PERM cases are denied?
Common issues include recruitment errors, inconsistent job requirements, incomplete documentation, prevailing wage problems, and failure to follow strict filing procedures. Because the process is highly technical, even small mistakes can lead to delays, audits, or denials.
Secure Your Company's Talent for the Long Term
The PERM process is complex, but it is the foundation for retaining your most valuable international employees. Let our firm manage the details so you can focus on your business.
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