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EB1 & NIW ASSESSMENT

    PERM Labor Certification

What Is PERM Labor Certification?

The PERM Labor Certification is the first step for many employment-based green card applicants, specifically those pursuing EB-2 (Advanced Degree Professionals) or EB-3 (Skilled Workers and Professionals) visas. Its primary goal is to protect the U.S. labor market by ensuring that foreign workers are only hired when no qualified U.S. workers are available for the position. The U.S. employer must conduct a thorough labor market test, proving that the foreign worker’s skills are unique and cannot be replicated by a U.S. worker.
 
Unlike the EB-1 visa, which does not require labor certification, PERM is mandatory for most EB-2 and EB-3 applicants unless a National Interest Waiver (NIW) is granted for EB-2, allowing the applicant to bypass PERM if their work serves the U.S. national interest. The process involves detailed recruitment efforts, prevailing wage determinations, and documentation to satisfy Department of Labor (DOL) requirements.
According to the Department of Labor, over 70,000 PERM applications are filed annually, with an approval rate of approximately 85% for cases that meet all requirements and pass potential audits.

PERM Labor Certification Requirements

To qualify for PERM Labor Certification, the employer and the position must meet specific criteria set by the DOL. Below are the key requirements.

Employer and Position Requirements

Permanent Job Offer

The foreign worker must have a permanent, full-time job offer from a U.S. employer.

Prevailing Wage Compliance

The offered wage must meet or exceed the DOL’s prevailing wage for the position, based on the job’s location and requirements.

Labor Market Test

The employer must analyze the local job market to prove no qualified U.S. workers are available, documenting all recruitment efforts.

Audit File Maintenance

The employer must maintain an audit file with proof of recruitment attempts, available for DOL inspection if requested.

Professional vs. Non-Professional Positions

Professional Positions

Typically require a bachelor’s degree or higher (or foreign equivalent); additional recruitment steps are required.

Non-Professional Positions

Do not require a degree; fewer recruitment steps are needed, but the labor market test still applies.

PERM Labor Certification

PERM Recruitment Steps

The DOL mandates specific recruitment steps to test the U.S. labor market, which must be completed within 6 months of filing the PERM application. The steps vary depending on whether the position is professional or non-professional, and all efforts must be documented.

Mandatory Steps for All Positions

State Workforce Agency Job Order

Place a job order with the State Workforce Agency for 30 days.

Newspaper Advertisements

Place ads in two consecutive Sunday editions of a local newspaper with wide circulation in the area of intended employment. If the job is in a rural area without a Sunday edition, use the edition with the widest circulation. For professional positions, one Sunday ad can be replaced with an ad in a relevant professional journal.

Additional Steps for Professional Positions

Choose three of the following methods to meet the additional recruitment requirement:

  • Job fairs
  • Employer’s website
  • Job search websites (e.g., Monster.com, Indeed.com)
  • On-campus recruiting
  • Trade or professional organizations
  • Private employment firms
  • Employee referral programs with incentives
  • Campus placement offices
  • Local and ethnic newspapers
  • Radio or television ads

Recruitment steps must be conducted at least 30 days but no more than 180 days before filing Form ETA 9089. After recruitment ends, the employer must wait 30 days before filing to allow U.S. workers time to respond to ads or job orders.
PERM Application Process

PERM Application Process

The PERM process involves several steps, from recruitment to DOL approval, before the green card application can proceed. Below is a detailed guide.

Conduct Labor Market Test

The U.S. employer performs recruitment efforts to analyze the labor market, documenting all attempts to hire U.S. workers.

Obtain Prevailing Wage Determination (PWD)

The employer requests a PWD from the DOL, which determines the minimum wage for the position based on location and requirements. This step takes 160–180 days.

Submit Form ETA 9089

The employer files Form ETA 9089 (Labor Certification application) with the DOL, either electronically or by mail, including documentation of recruitment efforts and the PWD. This review takes 30–90 days unless audited.

Respond to DOL Audit (if applicable)

If selected for an audit, the employer must provide additional documentation within 30 days. Audits can extend processing by 250–280 days.

Receive DOL Approval

Once approved, the employer receives the certified Labor Certification, valid for 180 days, during which they must file an immigrant petition with USCIS.

Immigrant Petition

If approved, the employer files Form I-140 (Immigrant Petition for Alien Worker) with USCIS before the Labor Certification expires, or the case is considered abandoned.

Adjustment of Status or Consular Processing

After I-140 approval, the applicant files Form I-485 (if in the U.S.) to adjust status or applies for an immigrant visa through consular processing (if abroad).

PERM Attorney Fees

At USA Visa Now, we offer clear, flat-rate legal fees for the PERM labor certification process, ensuring your case is handled with precision from start to finish.

  • Attorney Fee (PERM Process): $6,000

  • Attorney Fee (I-140 Petition after PERM Approval): $1,495

  • Advertising Fees: $1,000–$4,000 (varies by job market; must be paid by employer)

How to Get Started

  1. Request a Retainer Agreement
    Submit a quick form to get started.
    Request Retainer Agreement

  2. Activate Your Account
    After we receive your signed agreement and payment, you’ll get access to our client portal to complete forms and upload supporting documents.

  3. We Handle the Process
    From prevailing wage and ad placement to filing ETA 9089 and the I-140 petition—we take care of every step and keep you updated throughout.

The PERM application requires detailed documentation to prove compliance with DOL requirements. Below are the key documents:

  • Form ETA 9089: The Labor Certification application, filed with the DOL.
  • Prevailing Wage Determination (PWD): Issued by the DOL, specifying the minimum wage for the position.
  • Labor Market Analysis: Evidence that no qualified U.S. workers are available, including a recruitment report detailing reasons for rejecting U.S. applicants (reasons must be lawful and non-discriminatory).
  • Recruitment Documentation: Job orders, newspaper ads, website job ad prints, and proof of additional recruitment efforts (e.g., payment receipts, correspondence).
  • U.S. Employer Audit File: A file maintained by the employer with all recruitment evidence, available for DOL inspection if audited.

USA Visa Now can assist in preparing and organizing these documents to ensure a strong PERM application.

Common Challenges and How to Avoid Them

The PERM process can present challenges that may lead to delays, audits, or denials. Being prepared can help mitigate these risks.

Targeted Audits

The DOL may issue a targeted audit due to inconsistent documentation or an incomplete recruitment report, adding 250–280 days to the timeline. Work with an immigration attorney to ensure all documents are accurate and compliant before submission.

Random Audits

The DOL conducts random audits to ensure system integrity, which are unpredictable and require a response even if the application is withdrawn. Keeping a detailed audit file with organized recruitment evidence can streamline the response process if selected.

Recruitment Documentation Gaps

An offered wage below the DOL’s prevailing wage can lead to denial or audit, failing labor market standards. Request an accurate Prevailing Wage Determination early and ensure the wage meets or exceeds this requirement.

Recruitment Documentation Gaps

Missing proofs like ad copies or payment receipts can trigger an audit or denial by the DOL. Maintain diligent records of all recruitment activities in an organized audit file to demonstrate compliance.

Frequently Asked Questions

What is the purpose of the PERM Labor Certification?

The PERM process ensures that hiring a foreign worker will not negatively impact U.S. workers by requiring employers to prove that no qualified, available U.S. candidates applied for the job during an extensive recruitment process.

How long does the PERM process take from start to finish?

On average, the full PERM process - from prevailing wage determination to final approval - takes 14 to 24 months, depending on DOL processing times, recruitment steps, and whether an audit is issued.

Can I work in the U.S. while my PERM is pending?

No, the PERM process itself does not grant work authorization. You must have a valid visa status that permits work (like H-1B) while your green card process is ongoing.

Is there Premium Processing available for PERM?

No, the PERM Labor Certification cannot be expedited. However, once PERM is approved, the I-140 petition can be filed with Premium Processing for faster adjudication.

What happens if a qualified U.S. worker applies during recruitment?

If a qualified, available, and willing U.S. applicant applies, the employer cannot proceed with the PERM application. The job must be genuinely unavailable to qualified U.S. workers.

What are the chances of getting audited during the PERM process?

Audits are issued randomly or based on specific red flags in the application. While they are not uncommon, working with an experienced attorney and maintaining thorough documentation reduces the risk.

What Happens If My PERM Application Is Audited?

The employer must respond within 30 days with additional documentation. Audits extend processing time by 250–280 days and require a response even if the application is withdrawn.

Can I Avoid the PERM Labor Certification?

Yes, if applying for an EB-1 visa or an EB-2 National Interest Waiver (NIW), which do not require PERM. Otherwise, PERM is mandatory for most EB-2 and EB-3 applicants.

What if my PERM application is denied?

If denied, your employer can file a request for reconsideration or appeal with the Department of Labor. Alternatively, a new PERM application can be filed after addressing the issues that led to denial.

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