For most employees who get a green card through their job, the road begins with a step that has nothing to do with the worker at all: the employer’s PERM labor certification. PERM is the U.S. Department of Labor process an employer must complete before it can petition for an employment-based second-preference (EB-2) or third-preference (EB-3) immigrant. It is the part of the case people understand least and worry about most, because it runs on rigid deadlines, exact wording, and a real test of the U.S. job market. This page explains how PERM actually works, where cases go wrong, and how we approach it.

What PERM labor certification is

A permanent labor certification is the Department of Labor certifying to USCIS two things: that there are not enough U.S. workers who are able, willing, qualified, and available to take the specific job in the place it is offered, and that hiring the foreign worker will not adversely affect the wages and working conditions of similarly employed U.S. workers. That requirement comes from the immigration statute itself (INA § 212(a)(5)(A)), and the detailed rules live in the Department of Labor regulations at 20 CFR Part 656. The current program — “PERM” — has been in place since March 28, 2005.

One point clients raise constantly: the employer files PERM, not the employee. The job opportunity has to be the employer’s real, full-time, permanent position, offered to U.S. workers on the same terms the foreign worker would get. PERM is also not a visa or a work permit. It is a labor-market test. Work authorization and the green card come later, in steps that follow.

Who needs PERM — and who doesn’t

PERM is generally required for EB-2 (advanced-degree professionals and people of exceptional ability) and EB-3 (skilled workers, professionals, and other workers) under INA § 203(b)(2) and (b)(3). It is not required for several important paths:

  • EB-1 categories (extraordinary ability, outstanding professors and researchers, and multinational managers and executives) under INA § 203(b)(1) skip PERM entirely.
  • The EB-2 National Interest Waiver (NIW) waives the labor certification when the work is in the national interest. For many founders, researchers, and specialized professionals, the NIW is the way to avoid PERM and self-petition. See our National Interest Waiver page.
  • Schedule A occupations — currently professional nurses and physical therapists (Group I), and certain people of exceptional ability in the sciences or arts (Group II) — are pre-certified by DOL under 20 CFR § 656.5 and § 656.15, so the employer skips the recruitment process.

If you may qualify for one of these, it is usually worth checking before committing a year to PERM. We routinely look at whether a PERM-free path (NIW, EB-1A, EB-1B) fits before recommending the employer start recruitment.

The PERM process, step by step

1. Prevailing wage determination

Before recruiting, the employer asks DOL’s National Prevailing Wage Center for a prevailing wage determination, using Form ETA-9141 filed through the Foreign Labor Application Gateway (FLAG). DOL sets the wage based on the job’s duties and requirements and the wage data for that occupation and area (20 CFR §§ 656.40–656.41). The offered wage must equal or exceed that figure. Getting the job description and requirements right here matters, because they carry through the whole case — and, after the 2023 form changes, the minimum job requirements are now captured on the ETA-9141 prevailing-wage request rather than the old 9089.

2. Recruitment and the notice of filing

The employer must test the labor market on a fixed schedule set by 20 CFR § 656.17(e). For professional occupations that means, at minimum: a 30-day job order with the State Workforce Agency; two Sunday print advertisements in a newspaper of general circulation; an internal notice of filing posted for 10 consecutive business days (and provided to any bargaining representative); and three additional recruitment steps chosen from a defined menu (for example, the employer’s website, a job-search website, an on-campus recruiting event, a trade or professional organization, a private employment firm, or an employee-referral program). The recruitment generally has to occur within the 180 days before filing, and at least 30 days must pass after recruitment starts before the application can be filed.

3. Reviewing U.S. applicants in good faith

The employer must consider every U.S. worker who applies and may reject them only for lawful, job-related reasons, documented in a written recruitment report. This is where many cases are won or lost. If a qualified, available U.S. worker applies and cannot be lawfully rejected, the employer cannot proceed.

4. Filing ETA Form 9089

The employer files the Application for Permanent Employment Certification (ETA Form 9089) electronically through FLAG. The date DOL receives it becomes the priority date — your place in line for a green card — and that date is used by both USCIS and the Department of State (20 CFR § 656.30(a)). For people from heavily backlogged countries, locking in an early priority date is one of the most valuable things PERM does.

5. Audit or supervised recruitment (sometimes)

DOL may approve the application as filed, or it may issue an audit and ask for the full recruitment file, or — in some cases — order supervised recruitment, where DOL controls the advertising directly (20 CFR §§ 656.20–656.21). An audit is not a denial; it is a request to prove the case you already built. A clean, well-documented file is what makes an audit response straightforward instead of frightening. There is no premium processing for PERM, so audits add time.

6. Certification, then the I-140

Once DOL certifies the application, the employer has 180 days to file the Form I-140 immigrant petition with USCIS (20 CFR § 656.30(b)). Miss that window and the certification expires. The I-140 is where USCIS — not DOL — decides whether the worker actually meets the job’s stated minimum requirements as of the priority date, and whether the employer has the ability to pay the offered wage (8 CFR § 204.5(g)(2)).

EB-2 or EB-3?

The same PERM job can support EB-2 or EB-3 depending on what the position genuinely requires. EB-2 generally needs a U.S. advanced degree (or a bachelor’s plus five years of progressive experience) or exceptional ability; EB-3 covers professionals with a bachelor’s degree, skilled workers needing at least two years of training or experience, and other workers. The choice affects the prevailing wage, who can lawfully be rejected during recruitment, and — through the visa bulletin — how long the wait is. For some nationalities EB-3 moves faster than EB-2 in a given month, and vice versa, which is why the requirements should be set deliberately from the start, not reverse-engineered later.

How long PERM takes

A PERM case is really three clocks: the prevailing wage determination, the mandatory recruitment period, and DOL’s review of the filed application (longer if audited). Because there is no premium processing, the realistic timeline is months, not weeks, and it shifts with DOL’s workload. Rather than quote a number that will be stale by the time you read it, we check DOL’s current posted processing times (published at flag.dol.gov/processingtimes) when we map out your case so the plan reflects where the queues actually are.

Where PERM cases go wrong

  • Wage problems. Offering below the prevailing wage, or writing a job description that pushes the wage level higher than the employer can pay.
  • Over-tailored requirements. Building the job around the foreign worker’s exact background, or imposing unusual requirements without business necessity, invites denials and audits.
  • Improper alternative requirements. When a job allows a combination of education and experience, the wording has to follow the rule from Matter of Kellogg — getting this wrong is a classic, avoidable mistake.
  • Advertising defects. Ads that omit required content, run on the wrong days, or fail to name the employer.
  • Layoffs. Recent layoffs in the same or a related occupation and area trigger extra obligations to notify and consider those workers.
  • Missed deadlines. The 30-day waiting period, the 180-day recruitment window, the 180-day window to file the I-140 — each one is hard-edged.

How we approach PERM

We treat PERM as a case to be built, not a form to be filled. Before recruitment starts, we work through the job description, requirements, and wage strategy with the employer so the position is both real and defensible — and so EB-2 versus EB-3 is a deliberate choice tied to the worker’s timeline and country. When DOL audits, we respond with the documentation already assembled to answer the question. And because adjudication standards shift with each administration’s priorities, we prepare files to hold up even as enforcement posture changes, so a later policy shift is less likely to derail a case that was correct when filed.

We also work with startups and founders, where PERM raises its own questions — ability to pay at an early-stage company, who counts as a qualifying employer, and whether a founder should avoid employer-sponsored PERM altogether in favor of a self-petition. Often the better answer for a founder is a PERM-free path like the National Interest Waiver or an EB-1 category, and we will tell you when that is the case.

Frequently asked questions

Does PERM give me a work permit or let me stay in the U.S.?

No. PERM is a Department of Labor step, not an immigration status. You keep whatever status you already hold (often H-1B) while it runs. A work permit (EAD), if any, comes later, when you file the adjustment-of-status application — not from PERM itself.

Who pays for PERM?

The employer. DOL regulations prohibit the employer from passing the costs of the labor certification — including attorney fees for the PERM and the recruitment costs — on to the worker (20 CFR § 656.12). The worker can pay for later steps, like the I-140 or adjustment, but not the PERM itself.

Can I change jobs during the green-card process?

PERM is tied to a specific employer and job, so changing jobs during PERM usually means starting over. After the I-140 is approved and your adjustment-of-status application has been pending for 180 days, you may be able to “port” to a same-or-similar job under INA § 204(j) without losing your priority date. The timing matters a great deal, and it is worth planning before you move.

Can a small company or startup sponsor PERM?

Yes. There is no minimum company size, but the employer must show it can pay the offered wage from the priority date onward (8 CFR § 204.5(g)(2)), usually through tax returns, audited financials, or payroll. For young companies, ability to pay is the issue to plan around early.

What is a priority date and why does everyone talk about it?

Your priority date is the day DOL receives the PERM application. It fixes your place in line. Whether a green card is “available” depends on your priority date, your category, and your country of birth under the monthly Visa Bulletin. For applicants from countries with long backlogs, an early priority date is one of the most valuable things a PERM filing secures.

Talk to us about your PERM case

Whether you are an employer planning to sponsor a key employee or a worker trying to understand where you stand, the time to get the strategy right is before recruitment begins. Book a consultation and we will map out the PERM path — or the PERM-free alternative — that fits your situation. You can also explore our other practice areas.

This page is general information about the PERM process, not legal advice about your case. Immigration rules and processing times change; we confirm the current requirements and Department of Labor processing times against the authoritative sources (INA, 20 CFR Part 656, the USCIS Policy Manual, and DOL OFLC) when we plan your matter.