Specific categories for Green Cards (Permanent Residency), such as those in the EB-3 classification, may be required to process through the Department of Labor’s (DOL) Labor Certification process. The Labor Certification process in these cases is a prerequisite to filing with the Immigration Department. In other words, the approved Labor Certification is required before the case can be filed with USCIS.
The Labor Certification process is a tool that the DOL uses to require employers to test the job market and, in doing so, satisfy the DOL’s requirement that the job offered to the foreign national is not detrimentally interfering with the U.S. job market.
PERM brings with it new recruitment requirements. These include an internal notice of filing, a job order posting with the State Workforce Agency covering the area of intended employment, and a required advertisement in two Sunday editions of a major newspaper. Additional recruitment is required for professional positions (generally, those requiring at least a bachelor’s degree).
PERM allows employers to file Labor Certifications online. The employers will not need to submit supporting documentation with the cases but will retain the documents for inspection in case of an audit.
Under current Labor Certification processing times, a PERM case can take 2 ½ years to become certified by the DOL. Therefore, where possible, it is essential to maintain a beneficiary’s underlying nonimmigrant (temporary) status while going through the green card process. Consulting with an experienced immigration attorney throughout the PERM process is of the utmost importance.
Understanding PERM Labor Certification
Employers who intend to sponsor foreign workers for permanent residency must obtain a PERM labor certification from the U.S. Department of Labor. This certification confirms that hiring a foreign national will not displace qualified U.S. workers and that the position meets prevailing wage standards.
The process begins with submitting a prevailing wage request. Once the Department of Labor issues the wage determination, the employer is required to conduct a formal recruitment campaign. This includes placing a job order with the State Workforce Agency and publishing ads in two Sunday newspaper editions. Additional recruitment steps are necessary for positions that require a degree or equivalent.
Recruitment and Recordkeeping Requirements
Recruitment must be thorough and well-documented. Employers need to keep records of every step, including copies of ads, a recruitment report, and documentation explaining why any U.S. applicants were rejected. These documents are not submitted with the application but must be available in case of a DOL audit.
Inaccuracies in recordkeeping or recruitment methods can lead to delays, denials, or audits. A PERM labor certification attorney can help employers stay compliant and organized throughout this stage, especially for businesses unfamiliar with immigration filing requirements.
Timeline and Ongoing Visa Status
Processing times for a PERM labor certification can exceed two years. The foreign worker must maintain a valid nonimmigrant status, such as H-1B, to remain lawfully employed during that period.
Since delays can result in status gaps or employment interruptions, businesses must align their immigration strategy carefully. To prevent disruption, employers benefit from planning both short-term visa management and long-term green card sponsorship in parallel.
Potential Audits and How to Handle Them
Audits can be random or triggered by specific application issues. If selected, employers must provide the full set of recruitment and job-related documentation. In some cases, supervised recruitment, which involves repeat advertising under DOL direction, may be required.
Working with a PERM labor certification lawyer offers necessary safeguards in these situations. Legal counsel can ensure your documentation is audit-ready and intervene promptly if additional compliance steps are needed.
Certification Approval and Next Steps
Once the labor certification is approved, the employer has 180 days to file Form I-140 with USCIS. Missing this deadline means starting the process over entirely, including new wage requests and recruitment.
It’s also important to ensure the job description and offered salary remain unchanged. Any modifications could affect eligibility or lead to application denial at the next stage of the green card process.
Dealing with Denials or Errors
A PERM denial may result from an inadequate recruitment process, wage issues, or technical errors in the filing. Employers may request reconsideration or appeal the decision before the Board of Alien Labor Certification Appeals.
Appealing requires substantial documentation and legal reasoning. In such cases, the involvement of a PERM labor certification attorney is often essential, particularly when trying to preserve a key employee’s long-term immigration plan.
Frequently Asked Questions
- How long does the PERM labor certification process take?
It typically takes around 2.5 years from start to approval, depending on factors like prevailing wage determinations, recruitment timelines, and Department of Labor processing.
- Can I sponsor someone while they’re in H-1B status?
Yes, and it’s generally advisable to maintain valid temporary status throughout the process to avoid legal or employment complications during the wait for green card eligibility.
- What happens during a PERM audit?
The Department of Labor will request recruitment documentation, applicant evaluations, and supporting evidence. Employers must show full compliance with recruitment and wage requirements.
- Do I need to refile if the job changes slightly?
If job duties, location, or salary substantially change, a new PERM application may be necessary to maintain compliance with DOL standards.
- Can PERM be used for part-time jobs?
No. PERM certification is strictly for full-time, permanent positions. Under current labor regulations, part-time, seasonal, or contract-based roles do not qualify.
- What are my responsibilities after approval?
You must file Form I-140 with USCIS within 180 days of certification. Failure to do so invalidates the PERM approval and restarts the entire process.
- Can I reject U.S. applicants for not having preferred skills?
If those skills are listed as actual job requirements and essential, preferences that aren’t clearly stated in the job ad cannot be used to reject applicants.