Understanding PERM Labor Certification for Employment-Based Green Cards
“The best and the brightest” individuals in their respective industries can help businesses accelerate operational growth. For most employers, a temporary work visa is only the start of a relationship with a talented foreign national employee. H-1B, L-1, and similar visa classifications carry fixed maximum stays, recurring extension costs, and growing policy risk. For employees in whom companies seek a long-term investment, the more durable path is employer-sponsored permanent residence; for most professional roles (white collar, professional fields such as science, engineering, technology, and so on) that path runs through the Department of Labor’s Permanent Labor Certification (PERM) program.
Many employers have never sponsored a PERM case, and we know the process can be unforgiving. It is document-driven, sequence-dependent, and often measured in years as opposed to months. We walk employers through the PERM process, how to use it to meet employment-based green card needs, and considerations to weigh before starting the process. In short, employers want the answer to the long-term question: how does an employer keep the foreign talent it has already invested in?
“If you want to keep a high‑value H‑1B or L‑1 employee, your risk window isn’t next year—it’s now. The avoidable failures we see most often come from changing the job midstream and missing recruitment timing.” – Sanjay Das
“The job you define is the job you’re committed to, and material changes can force a restart. One actionable takeaway: freeze the role’s minimum qualifications and worksite now, then calendar the recruitment window and documentation steps before kicking off prevailing wage and advertising.” – Megan Jackler
Where PERM Fits Among Employment-Based Green Cards
U.S. immigration law offers several employment-based (EB) “preference” categories for permanent residence.
- First Preference (EB-1): Priority workers, including individuals of extraordinary ability, outstanding professors and researchers, and certain multinational managers and executives. These are typically employees already recognized at the top of their fields in science, engineering, the arts, medicine, or business, along with senior leaders transferring from an affiliated company abroad.
- Second Preference (EB-2): Members of the professions holding advanced degrees, and individuals of exceptional ability (including those seeking a National Interest Waiver). The position generally requires a master’s degree, or a bachelor’s degree plus five years of progressive post-degree experience. Typical roles include physicians and other advanced healthcare professionals, financial analysts, academics, and senior engineers and managers.
- Third Preference (EB-3): This category covers positions requiring a bachelor’s degree or at least two years of training or experience. It also includes “other workers,” whose positions require less than two years. These are often the employees day-to-day operations depend on: vessel operators, port captains, loading-equipment operators, software engineers, accountants, registered nurses, and other skilled and entry-level workers.
EB-1 cases and National Interest Waiver cases do not require labor certification. For nearly every other EB-2 and EB-3 case, PERM is the mandatory first step. Before the employer may file an immigrant petition with U.S. Citizenship and Immigration Services (USCIS), it must obtain a certified labor certification from the Department of Labor’s Employment and Training Administration (ETA).
In certifying the application, the DOL confirms two things: (1) there are not sufficient U.S. workers who are able, willing, qualified, and available for the position in the area of intended employment; and (2) employing the foreign national will not adversely affect the wages and working conditions of similarly employed U.S. workers. Put simply, the employer must test the U.S. labor market under the DOL’s rules and pay at least the prevailing wage. Experienced immigration lawyers guide employers through each of these requirements.
The PERM Process, Step by Step
The process to apply for employer-sponsored permanent residence generally moves in three stages: (1) PERM labor certification with the Department of Labor; (2) filing the Form I-140 Immigrant Petition with USCIS; and (3) the employee’s green card application. What is needed at each stage depends on the one before it. We provide employers with insight and support throughout the process.
- Defining the Position. On advice of counsel, the employer sets the job title, duties, worksite, and the actual minimum education and experience requirements for the position. Those requirements must reflect the employer’s real business needs, and the employee must have met them before joining the role. Experience gained with the same employer only counts if the earlier position was sufficiently different (generally, more than 50% different in duties). Later material changes to the duties, requirements, or location of the position can force the process to restart, so this step requires careful thought.
- Obtaining a Prevailing Wage Determination. Outside counsel files a prevailing wage request with the Department of Labor’s National Prevailing Wage Center. The DOL sets the minimum wage for the role based on the provided occupation, its requirements, and the geographic area. The employer must offer at least that wage, and later prove that it can pay that wage.
- Recruitment and Notice. Under 20 Code of Federal Regulations § 656.17, every case requires a 30-day job order with the State Workforce Agency and advertisements on two different Sundays in the newspaper of general circulation most appropriate for the occupation. Professional positions (generally those requiring a bachelor’s degree or higher) also require additional recruitment methods, such as job fairs, the employer’s website, on-campus recruiting, or employee referral programs. Separately, the employer must post a Notice of Filing at the worksite for 10 ten business days (or provide notice to the bargaining representative) and publish it through its normal in-house recruiting media. Strict timing windows apply at this stage. Mandatory recruitment and the notice must fall between 30 and 180 days before filing. Proactive counsel can help employers set reminders about these dates.
- Reviewing Applicants and Preparing Job Recruitment. The employer must consider every U.S. applicant in good faith, and may reject one only for lawful, job-related reasons. An applicant generally cannot be rejected for lacking a skill that could be acquired through reasonable, on-the-job training. If a U.S. worker applies who is qualified, able, and willing to work, the employer must consider them. The employer must sign and verify a recruitment report summarizing the results, and must maintain all supporting documentation in case of audit.
- File Form ETA-9089. Outside counsel files the PERM application electronically through the DOL’s FLAG system. The filing date becomes the employee’s priority date, which determines their place in the green card line. As of October 2026, DOL analysts were reviewing applications filed in December 2025, an average of about ten months. The DOL may certify, deny, or select a case for audit, whether based on its selection criteria or at random. Audited cases take substantially longer.
- File Form I-140. An approved PERM labor certification is only valid for 180 days from the date it is granted by the Department of Labor, and the I-140 must be filed with USCIS within that window. The I-140 shows that the employee meets the job’s requirements and that the employer has had the ability to pay the offered wage from the priority date onward.
- Waiting for a Visa Number, then Filing for a Green Card. The employee can file Form I-485 to adjust their status in the United States, or pursue consular processing abroad, only when their priority date is current under the Department of State’s monthly visa bulletin. This depends on the EB category and the employee’s country of birth. Notably, visa backlogs are no longer limited to India and China. In the November 2026 bulletin, even EB-2 and EB-3 applicants from “rest of world” countries face cutoff dates, while EB-2 and EB-3 applicants born in India face waits that can exceed a decade. The employee must maintain nonimmigrant status throughout this process.
From kickoff to a certified PERM, employers should plan on roughly 18 to 24 months, or longer if the case is audited. Starting the process early is the single most effective way to manage that timeline.
Key Considerations for Employers
- The employer, not the employee, pays for PERM. The DOL charges no fee for the prevailing wage request or the PERM application. However, 20 C.F.R. § 656.12(b) requires the employer to bear all costs of the labor certification, including attorney fees for preparing and filing it and all recruitment costs. Those costs cannot be deducted from the employee’s pay or recovered later. USCIS fees for later stages work differently.
- Sponsorship is a strong retention tool, but it does not lock in the employee. For employees in temporary status, particularly those facing long visa backlogs, a defined sponsorship policy can decide whether they stay. Filing early also gets them into the green card line sooner and can allow H-1B extensions beyond the usual six-year limit. However, once the green card is issued, no rule requires the employee to remain with the sponsor. Even before approval, an employee whose I-485 has been pending 180 days may be able to move to a “same or similar” job with another employer without losing their case.
- Structure any retention agreement carefully. A retention or repayment agreement can be a reasonable way to protect the company’s investment, but it may not require repayment of PERM-related costs. Agreements can more safely address costs outside PERM, such as USCIS filing fees the employer chooses to pay, if they are spelled out clearly and comply with applicable state wage and contract law.
- The job you define is the job you are committed to. The PERM case rests on a specific permanent, full-time position with defined duties, requirements, wage, and worksite. HR and the hiring manager must take part in defining it and in the good-faith review of U.S. applicants. A reorganization, relocation, or significant change in duties can require re-evaluating the case or restarting it. The employer must also be able to show their ability to pay the offered wage from the priority date until the employee becomes a permanent resident, which USCIS treats as an essential I-140 requirement.
- Approval is never guaranteed, so plan for setbacks. Recruitment may locate a qualified U.S. worker. The DOL may audit or deny the application. USCIS may question the employee’s qualifications or the employer’s ability to pay. Each of these steps may add months to the approval process. Employers can reduce that risk by keeping meticulous recruitment records, settling on job requirements before starting, and building enough lead time to protect the employee’s temporary immigration status while the case is pending.
PERM labor certification is the foundation of most employment-based green cards, and it rewards employers who plan early, define positions carefully, and document every step. Done well, sponsorship turns a temporary hire into a long-term member of the workforce and gives the company a clear, competitive answer when talent asks about its future. Galloway’s corporate immigration lawyers help employers evaluate whether sponsorship makes sense, build compliant sponsorship policies and retention agreements, and manage each case from the prevailing wage request through the green card.
Disclaimer: This material is provided for informational purposes only. It is not intended to constitute legal advice, nor does it create a client-lawyer relationship between Galloway and any recipient. Recipients should consult with counsel before taking any actions based on the information contained within this material. This material may be considered attorney advertising in some jurisdictions.
