PERM Labor Certification
The Department of Labor's labor-market test—the first step of most employer-sponsored EB-2 and EB-3 green cards.
About This Certification
PERM (Program Electronic Review Management) labor certification is a labor-market test: the U.S. Department of Labor certifies that there are not sufficient U.S. workers able, willing, qualified, and available for a position at the prevailing wage, and that employing the foreign national will not adversely affect the wages and working conditions of similarly employed U.S. workers. The requirement flows from INA § 212(a)(5)(A) [8 U.S.C. § 1182(a)(5)(A)]; the governing regulations are at 20 C.F.R. Part 656, and applications are filed through the DOL's FLAG (Foreign Labor Application Gateway) portal. PERM is the first of three stages in the standard employment-based green-card path: PERM (DOL), then the Form I-140 immigrant petition (USCIS), then adjustment of status or consular processing.
PERM is required for EB-3 in all subcategories and for EB-2 cases resting on an underlying job offer. It is not required where the labor-market test is statutorily waived or bypassed: the EB-1 categories (extraordinary ability, outstanding professors and researchers, and multinational managers and executives) are exempt, and the EB-2 National Interest Waiver substitutes a national-interest showing under Matter of Dhanasar for the labor-market test entirely. A separate Schedule A precertification exists for occupations DOL has predetermined lack sufficient U.S. workers (currently professional nurses and physical therapists, and persons of exceptional ability in the sciences or arts), for which no recruitment is performed—though a prevailing-wage determination and Notice of Filing are still required.
At Locke Immigration Law, PERM cases are built to survive audit from the outset. That means obtaining the prevailing-wage determination before recruitment, framing minimum job requirements that are normal to the occupation and not tailored to the foreign national, running each mandatory and professional recruitment step within its strict timing window, and documenting a lawful, job-related basis for every U.S.-worker rejection in the recruitment report. Because a certified application cannot be corrected after filing—an error can only be cured by withdrawal and refiling—we treat pre-filing diligence, not error recovery, as where the case is won.
Where PERM Applies
Whether a case needs PERM depends on the immigrant category. EB-3 and offer-based EB-2 cases require certification; the EB-1 categories, the EB-2 National Interest Waiver, and Schedule A occupations proceed without a full labor-market test.
EB-3 (professionals, skilled workers, other workers) — labor certification required for all subcategories
EB-2 (advanced degree or exceptional ability) — required where the case rests on a job offer
EB-2 National Interest Waiver — PERM waived; a national-interest showing under Matter of Dhanasar substitutes for the labor-market test
EB-1 (extraordinary ability, outstanding researcher, multinational manager) — exempt from labor certification
Schedule A occupations (professional nurses, physical therapists, certain persons of exceptional ability) — no recruitment, but a prevailing-wage determination and Notice of Filing are still required
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Schedule a ConsultationThe PERM Process
Prevailing Wage Determination
Before recruiting, the employer obtains a prevailing-wage determination (PWD) from the National Prevailing Wage Center on Form ETA-9141, filed through FLAG. The employer must offer and pay at least the prevailing wage. The PWD is valid for 90 days to one year, and the application must be filed—or recruitment initiated—while the determination remains valid.
Recruitment
All recruitment is conducted before filing and within strict timing windows. Mandatory steps for all positions are a State Workforce Agency job order open at least 30 days, two Sunday newspaper advertisements, and an internal Notice of Filing posted for at least 10 consecutive business days. Professional occupations require three of ten additional recruitment steps. Required advertising must fall within the 180 days before filing, and the application may be filed no sooner than 30 days after the last mandatory step.
Recruitment Report and ETA Form 9089
The employer prepares a signed recruitment report documenting each step, the results, and a lawful, job-related reason for every U.S.-worker rejection—a bare 'not qualified' is insufficient. The ETA Form 9089 is then filed through FLAG, linked to the PWD. No supporting documentation is filed with the application, but the employer must retain the full audit file for five years. The employer attests to the application under penalty of perjury, and it cannot be corrected once filed.
Adjudication, Audit, and Certification
DOL may certify the application, issue an audit (30 days to respond), or order supervised recruitment. A substantial failure to produce required documentation results in denial. Once certified, the application must be printed, signed, and filed in support of a Form I-140 within 180 calendar days, or it expires. The priority date is the date the application was filed with DOL.
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