When recruiting foreign workers to fill skills gaps in your workforce, there are various procedural hurdles that have to be met, including seeking PERM labor certification to allow you to permanently employ someone in your US-based business in a permanent, full-time role.

PERM labor certification is an early stage of many employment-based green card cases, so mistakes at this point can impact the entire sponsorship plan. Employers who treat PERM as a simple form filing exercise often run into problems later when DOL questions the recruitment steps, the job requirements or the prevailing wage. A careful approach at the outset helps keep costs under control and reduces the risk of delays or denials further down the line.

The following practical guide to US PERM processing for employers looks at what PERM labor certification is and when this is needed, together with how to make an application.

Section A: What is PERM Labor Certification?

Program Electronic Review Management (PERM) labor certification is a certificate issued by the Office of Foreign Labor Certification (OFLC), within the Department of Labor (DOL), to allow an employer to hire a foreign national to permanently work in the United States. In most instances, before the employer can submit an immigration petition to US Citizenship and Immigration Services (USCIS), they need to obtain a labor certification from OFLC.

The DOL certifies to USCIS that there are not sufficient US workers who are able, willing, qualified and available to accept the job opportunity in the intended area of employment and that the foreign worker’s employment will not adversely affect the wages and working conditions of similarly employed US workers. DOL’s role is limited to assessing labor market conditions rather than any wider immigration or admissibility issues, which are handled by USCIS and the Department of State.

Once an application for permanent labor certification has been approved by the DOL, the employer can then seek immigration authorization from USCIS by filing a Form I-140 petition, where USCIS will assess the worker’s qualifications and the employer’s ability to pay the offered wage from the priority date.

Further information for employers on permanent labor certification can be found online on the USCIS website at Volume 6, Part E, Chapter 6 of the USCIS Policy Manual. The responsibility for filing an application for PERM labor certification rests with the employer, not the foreign worker, although prospective employees may benefit from understanding how the permanent labor certification program applicable to their job opportunity is being utilized on their behalf.

The employer needs to qualify as a US employer with a valid Federal Employment Identification Number (FEIN) and have a location within the United States to which domestic workers may be referred.

PERM is not required for every type of employment-based green card. Certain categories, such as EB-1 priority workers, some EB-2 National Interest Waiver cases and Schedule A roles, bypass the labor certification step altogether. Employers should therefore first confirm that the case actually falls in a PERM-required category before investing time and budget into the process.

Section B: Who needs PERM Labor Certification?

The need for PERM labor certification arises in most cases where a US employer is petitioning for a foreign worker to obtain lawful permanent residence status (also known as a green card) in the United States on the basis of employment there in a permanent, full-time role. PERM certification will usually be needed for employment-based second and third preference petitions, unless the petition falls within a category that is exempt from labor certification, such as the EB-2 National Interest Waiver or certain Schedule A occupations.

PERM is designed for direct hires, not for short-term projects, contractors or purely remote arrangements where there is no clear worksite for wage and recruitment purposes. The sponsoring entity needs to offer a genuine long-term position and be prepared to pay at least the prevailing wage that DOL sets for the role and location. Employers who try to use PERM for roles that are temporary in nature, speculative or not clearly tied to a specific worksite are more likely to face questions or refusals.

Employment-Based Immigration: Second Preference EB-2 visas

A foreign worker may be eligible for an employment-based, second preference green card if they are a member of the professions holding an advanced degree, or its equivalent, or someone who has exceptional ability:

Advanced Degree: the job opportunity must require an advanced degree, where the foreign worker possesses such a degree or its foreign equivalent. In most cases this means a US master’s degree or higher, or a US baccalaureate degree or foreign equivalent plus at least 5 years of progressive, post-baccalaureate experience in the specialty. They must also meet any requirements specified on the labor certification as applicable as of the priority date.

Exceptional Ability: the foreign worker must be able to show exceptional ability in either the sciences, arts or business, where exceptional ability means a degree of expertise significantly above that normally encountered within these specific areas, supported by at least three types of prescribed evidence. The worker must also meet any requirements specified on the PERM labor certification.

The PERM case has to line up with the EB-2 classification. If the PERM minimum requirements look closer to EB-3 level, USCIS may question an EB-2 filing even where DOL has certified the case. Consistency between the job description, the minimum requirements, the prevailing wage level and the worker’s credentials is therefore key.

Employment-Based Immigration: Third Preference EB-3 visas

A foreign worker may be eligible for an employment-based, third preference green card if they are a skilled worker, professional or “other worker” (unskilled worker):

Skilled Workers: the foreign worker must be able to demonstrate that they possess at least 2 years of job experience, education or training that meets the requirements specified on the labor certification for the job opportunity, and that they will be performing work for which qualified US workers are not available in the United States.

Professionals: the foreign worker must demonstrate that they possess a US baccalaureate or foreign equivalent degree, where education and experience may not be substituted for a baccalaureate degree, and that a baccalaureate degree is the normal requirement for entry into the relevant occupation. They must also be performing work for which qualified US workers are not available in the United States and meet any other requirements specified on the PERM labor certification.

Other workers (unskilled workers): the foreign worker must demonstrate the ability to perform unskilled labor that is not of a temporary or seasonal nature, requiring less than 2 years training or experience. They must be performing work for which qualified US workers are not available in the United States and meet any other requirements specified on the PERM labor certification.

EB-3 cases often move more slowly where visa numbers are backlogged, so employers should factor in not only DOL and USCIS timelines but also the State Department Visa Bulletin. A PERM approval on its own does not give work authorisation or permanent residence; it is one step in a longer process that needs to be mapped out, especially for workers who are already in the US in temporary status and face status expiry dates.

Section C: PERM Labor Certification Process

The process of obtaining a PERM labor certification involves the following steps.

First, identify a permanent full-time job opportunity that may be filled by a foreign worker in accordance with the applicable sections of the Code of Federal Regulations (CFR). The employer must determine the minimum requirements and duties for the relevant job opportunity, where these requirements must reflect the employer’s actual minimum standards for the role and not be tailored to the foreign worker. These opportunities are generally categorized by occupation type under professional and non-professional occupations, special handling for college and university teachers, and professional athletes. At this stage many cases go wrong because internal job descriptions, HR grading documents and what is entered on the PERM form do not match. Employers should make sure that internal HR records, offer letters and PERM minimum requirements tell the same story.

Next, request and receive a valid Prevailing Wage Determination (PWD) from the Office of Foreign Labor Certification’s (OFLC’s) National Prevailing Wage Center (NPWC). The OFLC is a division within the DOL responsible for administering employment-based immigration programs. Prior to filing an application for PERM processing, the employer must have a prevailing wage determination for the job opportunity on which the immigration petition will be based, issued by the NPWC. Current processing times vary and often span several months. Employers should factor the PWD queue into workforce planning because no recruitment or filing can be validly completed without a current prevailing wage, and requesting a reconsideration or redetermination can add further delay.

You then need to complete all mandatory advertising and recruiting requirements, if applicable. The recruitment steps are determined by the occupation category under the CFR. Professional occupations require a State Workforce Agency job order, two Sunday newspaper advertisements and three additional recruitment steps from an approved list. Non-professional occupations require a State Workforce Agency job order and two Sunday advertisements. Employers must also comply with the notice of filing requirements, where notice has to be posted for at least ten business days and provided to any applicable union representative or, if no representative exists, to existing employees at the place of employment. All recruitment has to be conducted within the prescribed timeframes and documented carefully in a recruitment report. DOL often focuses on inconsistencies between what was advertised, what is listed on the ETA-9089 and how applicants were screened, so keeping complete copies of adverts, resumes and interview notes is key to defending a later audit.

You can then submit the PERM application. Prior to submitting an online application, employers must register on Login.gov and create a Foreign Labor Application Gateway (FLAG) account. The FLAG system is now the platform used for filing Form ETA-9089. Employers may still mail PERM applications, although online submission streamlines the process, ensures consistency in data entry and provides immediate access to certification or denial notices. The signed paper version kept on file has to match the data submitted electronically. Any later correction to obvious typographical errors is at the discretion of DOL, so it is safer to ensure the FLAG draft has been checked from an immigration and HR perspective before it is submitted.

How to Apply for PERM Processing

When submitting an online PERM processing application, once logged in, the “New Application” tab will launch the application process. The person preparing the application (the authorized preparer) must select “Form ETA-9089″ under “PERM” to begin.

The preliminary questions include selecting the relevant occupation type, for example, a professional or non-professional occupation, or a college or university teacher where the candidate was selected using the competitive recruitment process. If none of the occupation options apply because the role is eligible for Schedule A classification, the PERM process does not apply. Schedule A occupations, such as certain professional nurses, physical therapists and individuals of exceptional ability in the sciences or arts, do not require a labor certification and the employer instead submits an uncertified Form ETA-9089 directly to USCIS with the Form I-140. Identifying early on whether a role falls under Schedule A can save considerable time and cost, so employers should assess this point before launching PERM recruitment.

The preparer will also be asked if the employer is required, by notice from a Certifying Officer, to currently undergo supervised recruitment. For this question, “No” should be selected if the employer is not subject to supervised recruitment, otherwise “Yes” should be selected and the Notice of Supervised Recruitment (NSR) uploaded. Supervised recruitment can significantly extend timelines and limit flexibility around advert wording, so employers who receive an NSR need to follow the instructions strictly and expect a higher level of scrutiny.

The preparer will then need to enter the PWD case number issued by the NPWC to identify the job opportunity and prevailing wage(s) covered by the application. This links the PWD to the ETA-9089 application. If a valid PWD has not been obtained because the employer is subject to supervised recruitment, the preparer should indicate if a completed Form ETA-9141 is attached to the application.

The form then comprises various sections that must be completed by the preparer, including employer and point-of-contact information, any attorney or agent information, job opportunity and wage information, worksite information, notice of posting of the application to any union representative or the employer’s existing workforce, and the employer’s labor condition statements. For roles that involve hybrid or remote work patterns, care is needed in describing the worksite locations that drive wage levels and recruitment, as DOL will expect consistency between the listed worksites, the prevailing wage, the adverts and any later I-140 or H-1B filings.

The section requiring information about the foreign worker ties into Appendix A of Form ETA-9089, where information is collected about the worker’s education, training qualifications, skills and work experience. Appendix B is for any additional worksite information where the work for the pending job opportunity is to be performed in geographic areas other than the one identified earlier in the form. Appendix C is for supplemental information, to be completed where the preparer needs to elaborate or further explain the business necessity of one or more requirements of the job opportunity under consideration for permanent labor certification. Finally, Appendix D refers to special recruitment for college and university teachers where the occupation selected at the outset was for a college or university teacher selected through a competitive recruitment process.

Once all mandatory sections have been completed, the application can be reviewed and submitted, at which stage a confirmation will appear stating that the application has been received and referred for processing. A courtesy email notification will also be sent. From that point the case will move into analyst review and, in some cases, audit review. Employers should keep the full supporting file ready for at least 5 years, as DOL can request documents at any time during that retention period.

Section D: PERM Documents & Forms

To apply for PERM processing, the employer uses ETA Form 9089, Permanent Employment Certification. Apart from linking the PWD, supporting documentation is not usually filed with the application, unless the case is selected for audit, when documents can be uploaded online. However, the employer is required to retain the recruitment and supporting file for a period of 5 years from the date of filing in case of audit or supervised recruitment.

Once the employer has obtained a certified Application for Permanent Employment Certification, they then file Form I-140, Petition for Alien Worker, with USCIS, together with the necessary documents in support of that petition, including evidence of the worker’s qualifications and the employer’s ability to pay the proffered wage from the priority date.

The foreign worker will also need to file Form I-485 to adjust their status, if they are eligible to do so from within the United States and a visa number is available under the relevant Visa Bulletin chart used by USCIS. This may be done concurrently with the I-140 petition where concurrent filing is permitted and there is a visa number immediately available to that worker.

Employers should take care at this stage to ensure that documents relied on during PERM recruitment, such as job descriptions, minimum requirements, internal role evaluations and organisational charts, are consistent with the evidence used in the I-140 petition. Any mismatch between the PERM file and the immigrant petition can lead USCIS to question whether the worker meets the minimum requirements or whether the role was accurately represented, which can slow or derail the case.

Section E: PERM Processing Time

The average number of days to process a PERM application can vary, depending on the material facts and individual circumstances of the case. In some instances, a case may also be sent for an audit, in addition to an analyst review, before being certified.

Looking at the current data on the DOL website, the average PERM processing time for analyst review, for cases reported in November 2025, is around 496 calendar days, with separate, often longer, timeframes where a case is selected for audit. Actual processing times can change frequently, so employers should always refer to the latest processing time reports published by the DOL.

From a planning perspective, employers should factor in the full lifecycle, from prevailing wage processing, recruitment window and mandatory waiting periods, PERM adjudication, I-140 adjudication and any priority date backlog and I-485 or consular processing.

In fast-moving businesses, year-long PERM queues can affect staffing and offer planning, especially where a sponsored worker’s temporary status is approaching maximum stay limits. Reviewing the timing at the outset helps avoid situations where a worker loses status while waiting for a priority date to become current.

PERM Processing & Priority Dates

The date any labor certification application is received by the DOL is referred to as the filing date, and this is used by USCIS and the Department of State (DOS) as the priority date. A priority date is used in conjunction with the DOS Visa Bulletin to determine when a visa is available and when the worker can apply for adjustment of status or an immigrant visa abroad.

After the labor certification application is certified by the DOL, it is then filed with USCIS together with a Form I-140, Immigrant Petition for Alien Worker, following the current USCIS lockbox filing instructions. The PERM labor certification has a validity period of 180 days. This means that it needs to be submitted with the immigrant petition within this period, otherwise it will expire and a new labor certification would be required.

Where visa numbers retrogress, workers may wait months or years between I-140 approval and the ability to file an I-485. Employers planning long-term workforce retention should track monthly Visa Bulletin movements and understand how priority date backlogs affect specific nationalities and categories.

Section F: PERM Filing Fee

There is no fee to file ETA Form 9089 with the Department of Labor.

At the immigrant petition stage, the base filing fee for Form I-140 is currently $715, and in most cases employers also pay the additional $600 Asylum Program Fee, unless they fall within a category that benefits from a reduced fee or exemption, giving a combined I-140 cost in many cases of $1,315, excluding any legal fees.

The cost to the worker to file Form I-485 has increased under the 2024 USCIS fee rule and is now generally $1,440 for most adult applicants, with different fees and some reduced amounts applying in limited circumstances.

Premium processing for Form I-140, if requested, is available for an additional fee of $2,805, with USCIS now applying a premium processing timeframe of 15 business days rather than 15 calendar days.

Employers should also budget for recruitment costs, which vary depending on the geographic market, advertising outlets and the need for multiple professional recruitment steps. In heavily regulated industries or locations with high advertising costs, recruitment can form a large proportion of the overall PERM budget. Employers also need to plan for internal resource time, since PERM requires HR, legal and hiring managers to provide detailed input during the process.

Section G: How to Check PERM Case Status

Once an application for PERM processing has been submitted, the employer is given an assigned case number, and employers can review and manage a case online through the FLAG system. Where the case is still under review, it will either state “Analyst Review” or “Audit Review” or show that a determination has been issued, such as certification or denial.

Employers should also monitor email notifications for requests for more information or audit notices, as DOL does not issue multiple reminders and delays in responding to an audit can jeopardise the application. Keeping the recruitment file organised and accessible makes responding to any DOL request more straightforward.

Section H: PERM Compliance Risks for Employers

For employers, the main risk with PERM is not usually single, technical mistakes. Patterns of small inconsistencies that build up across the job description, the prevailing wage request, the adverts, the recruitment notes and the ETA-9089 form are where the real problems can lie.

DOL reviews the file as a whole. If the role looks inflated, if US applicants were not screened in a transparent way or if the adverts and the form do not match, the case is more likely to be audited or denied. A denial at PERM stage forces the employer to start again, repeating recruitment and prevailing wage steps at additional cost and with a later priority date.

There is also a compliance dimension. PERM filings create a record of the offered wage and the core duties for the role. Later discrepancies, for example if the worker is paid less than the prevailing wage or moved into a significantly different role without a fresh process, can cause problems at I-140 stage or in any later review. Employers that do not keep proper recruitment files for 5 years or that run PERM cases against a backdrop of layoffs in related roles are more likely to attract unwanted attention if DOL or USCIS look behind the paperwork.

Effective PERM compliance starts with clear internal ownership. HR, talent acquisition and legal teams should agree the minimum requirements for the role, the worksite locations and the prevailing wage strategy before any adverts are placed. Recruitment should then be run in a consistent way, with all resumes, interview outcomes and reasons for rejection captured in a recruitment report and stored in the audit file. The PERM file should sit alongside the wider immigration file so that later H-1B, I-140 or I-485 filings do not contradict what was said at PERM stage.

Employers also benefit from forward planning around status and timing. Long DOL queues and visa bulletin backlogs mean that a PERM case will often run in parallel with H-1B or other temporary status limits. Mapping out expiry dates, promotion plans and potential role changes against the PERM timeline reduces the risk of a last-minute crisis when a worker is approaching a maximum stay or needs to move into a new position. Regular check-ins with experienced advisers can help stress test the strategy and identify where business decisions could create PERM or I-140 exposure in the future.

Section I: Summary

The PERM labor certification process is a detailed regulatory exercise that sits at the foundation of many employment-based green card cases. For employers, success depends on careful alignment between the role, the recruitment steps and the evidence that will later support the I-140 petition. Any gaps between internal job specifications, prevailing wage data, recruitment results or the information entered on the ETA-9089 can lead to delays, audits or denials that are costly to unwind. The process also interacts with wider workforce planning, since prevailing wage timelines, DOL backlogs and visa bulletin movements all influence when a worker can progress to the next stage of their case.

By approaching PERM as a strategic project rather than an isolated compliance step, employers place themselves in a stronger position to retain key talent and avoid last-minute status issues for workers already in the United States. Reviewing the role requirements at the outset, documenting recruitment thoroughly and ensuring consistency across all filings will help keep the case on track through DOL and USCIS adjudication. With long timelines and rising processing scrutiny, early planning and informed oversight offer the most effective way to support sponsored workers and safeguard business continuity during the green card process.

Section J: Need Assistance?

If your organisation is planning to sponsor a worker for permanent residence or needs guidance on any aspect of the PERM process, our attorneys can help you structure the case, avoid common pitfalls and keep timelines on track. Speak with our team for clear, practical advice tailored to your workforce and compliance needs. Contact us to arrange a consultation.

Section K: Glossary

Section L: Additional Resources

Author

Nita Upadhye

Founder & Principal Attorney Nita Nicole Upadhye is a recognized leader in the field of US business immigration law, (The Legal 500, Chambers & Partners, Who's Who Legal and AILA) and an experienced and trusted advisor to large multinational corporates through to SMEs. She provides strategic immigration advice and specialist application support to corporations and professionals, entrepreneurs, investors, artists, actors and athletes from across the globe to meet their US-bound talent mobility needs.

Nita is an active public speaker, thought leader, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals.

• Nita Upadhye

  US Immigration Law Compliance: Rules & Penalties
• Nita Upadhye

  What are the E2 Visa Eligibility Criteria?
• Nita Upadhye

  Can an E2 Applicant Bring E2 Visa Dependents?
• Nita Upadhye

  What is the E-2 Visa Application Process?