Sponsoring a foreign national employee for a U.S. green card is one of the most significant commitments an employer can make, and the PERM labor certification process is typically where it begins. This guide is designed for HR professionals and in-house counsel who want to understand exactly what the process involves, what their responsibilities are at each stage, and what to expect from start to finish. This article is not meant to be considered legal advice, but is merely designed to describe a process that the lawyers at Antone, Casagrande & Adwers regularly assist their clients with as it relates to their foreign national employees.
The attorneys at Antone, Casagrande & Adwers have prepared this resource based on decades of experience guiding employers through the PERM process. For companies ready to move forward, our immigration lawyers are available to manage the process on your behalf — contact us here.
If you’re interested in learning about our corporate immigration services, visit our Corporate Services page.
The PERM labor certification process is the first step in sponsoring a foreign national employee for a U.S. green card. The PERM labor certification precedes the filing of Form I-140 and the Adjustment of Status (or consular processing if the foreign national leaves the U.S.).
In most instances, a foreign national employee seeking to obtain U.S. lawful permanent residence status (LPR), also known as the green card, must receive a certified PERM labor certification from the U.S. Department of Labor (DOL). A certified PERM labor certification is filed by the employer using ETA Form 9089 (PERM application), Application for Permanent Employment Certification, through the DOL’s Program Electronic Review Management system, or PERM. The immigration lawyers in our Michigan office have successfully prepared many applications for employers and corporations utilizing this process.
The purpose of filing a PERM labor certification is to demonstrate that there are no U.S. workers able, willing, available, and qualified to accept the job the applicant has, and that his/her employment will not take the jobs of U.S. workers or negatively affect the wage or working conditions of U.S. workers. U.S. workers are defined as U.S. citizens, lawful permanent residents (green card holders), or asylees.
The ETA Form 9089 PERM labor certification application requires the prospective employer to conduct a job search to determine whether any qualified and available U.S. workers are immediately available to accept the offered position at the acceptable wage for the geographic area. An outline of the process for filing a labor certification application is provided below.
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H-1B Status – Most PERM labor certifications are conducted by employers on behalf of foreign nationals on H-1B status. These employees are limited to six (6) years in H-1B status unless they have an approved employment-based green card petition (Form I-140).
The most common way to obtain an approved I-140 is through employer sponsorship via PERM, in either the EB-2 or EB-3 employment-based immigration category. An approved I-140 does not immediately result in a green card, but it does unlock an important benefit: the H-1B worker’s status can be extended in three-year increments indefinitely, until their priority date becomes current on the Visa Bulletin and they can apply for Adjustment of Status to receive their green card.
If the I-140 has not yet been approved and the H-1B worker needs to extend their status, a one-year extension is available — but only if the PERM labor certification was filed at least 365 days before the end of their authorized H-1B time. Once the I-140 is approved, the worker becomes eligible for the standard three-year extensions.
L-1 Visa Holders – Foreign nationals in L-1 status can also benefit from starting the PERM process early. L-1B workers are limited to five years; L-1A workers to seven years (including any time in L-1B). Unlike H-1B workers, L-1 holders cannot extend their status simply by having an approved I-140 — but for nationals of countries without significant visa backlogs, a PERM-based green card can be approved before their L-1 status expires, provided the process is started with enough lead time.
Employees in TN Status – Foreign nationals from Canada or Mexico employed in TN status may also benefit from a certified PERM under certain conditions. Please get in touch with our immigration attorneys to discuss options.
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Our immigration lawyers typically recommend that employers start the PERM labor certification process for their H-1B employees at the same time as when they file to extend their H-1B status for the first time, i.e., when they are petitioning to start their fourth year in H-1B status.
For those in L-1B status, we typically recommend starting the PERM labor certification process at the beginning of the third year in L-1B status, depending on their country of birth, unless there is a plan to promote the L-1B worker to a management position and extend their L-1 B status by 2 years. In such a case, the PERM labor certification process can be delayed by two years.
To prepare the job description, care must be taken to draft an accurate description of the job duties, as well as the skills, education, and experience required to perform them satisfactorily. The advertised requirements for the position must meet two criteria:
In establishing the job description, one must generally follow the DOL guidelines for different occupational categories. These guidelines also determine the amount of education and experience that can be required for a given occupation. Requirements that exceed the range established by the DOL are considered “unduly restrictive,” meaning that the sole function of these requirements is to reject U.S. workers who are otherwise qualified for the position. An employer may require experience or education beyond the DOL’s standard range, but only by demonstrating “business necessity,” meaning the additional requirements are tied to the nature of the employer’s business and genuinely needed to perform the job as described.
The timeline breaks down roughly as follows: obtaining the prevailing wage determination (PWD) takes approximately three to six months; completing the mandatory recruitment steps takes our team an average of two and a half to three months; and once the PERM ETA Form 9089 is filed, DOL processing is currently averaging 15 to 17 months as of June 2026. That brings the total to approximately 21-26 months under normal circumstances. If the application is selected for a DOL audit, add at least six additional months to that estimate.
Because of these timelines, early planning is essential — particularly for employees in H-1B or L-1 status who are approaching their maximum period of authorized stay. Current DOL processing times are updated regularly and can be checked directly at flag.dol.gov/processingtimes.
If the application is not selected for an audit, DOL will either approve or deny it. A certified application will be emailed to the employer and its immigration attorney listed on the ETA Form 9089, together with a separate Approval Appendix, which must be signed by the foreign national, lawyer for the employer, and employer representative and included with the immigrant petition (Form I-140) filed with the U.S. Citizenship and Immigration Services (USCIS) to sponsor the foreign national for an immigrant visa.
Most audits are a result of random selection by the DOL; however, in our experience, we’ve found that some are triggered by unduly/excessive job requirements, such as
There are more cases not listed.
If an application is selected for an audit, the employer (and its immigration lawyer) will receive an audit letter from the Certifying Officer (CO) of DOL asking the employer to provide certain documentation, typically consisting of copies of all recruitment efforts as well as the recruitment report together with all resumes and evidence related to how it was determined each applicant did not meet the requirements for the position. This audit letter will typically specify a reply date of thirty days from the date of the audit letter. If the reply date is not met or if the CO does not provide the employer with an extension, then the application will be denied.
If selected for audit, our corporate immigration lawyers will prepare the response for the employer, as we will already have copies of all recruitment steps conducted, the recruitment report, copies of all resumes submitted, and a list of reasons each applicant was rejected.
If the PERM application is certified and the employer wishes to proceed to the next step – filing the employment-based immigrant petition (Form I-140) with USCIS, they must do so within 180 days of the date the PERM Form ETA 9089 application is certified. There is no mechanism by which to request an extension.
The PERM labor certification process is complicated, time-consuming, and can be expensive (job search ads). It typically takes approximately 2 years to complete, including waiting for a PWD, completing the required recruitment steps, and allowing the DOL to process the PERM. If unsuccessful, your foreign national worker may not have time for you to do this a second time, and you risk losing that employee to their home country.
Our firm has helped some of the world’s largest multinational corporations navigate the PERM process for hundreds of their employees. If you’re an employer, we would be happy to discuss the PERM process as it relates to your organization and/or a foreign national seeking to obtain permanent residence through an employment-based immigrant petition. Call today to get started.
How long does PERM labor certification take?
The complete PERM process typically takes 24–36 months from start to DOL certification. This includes 5–6 months for a prevailing wage determination, 2–3 months of mandatory recruitment, and currently about 16–17 months for DOL to review and certify the ETA-9089 application (as of early 2026). If the application is selected for audit, add at least 6 additional months. The time from a certified PERM to an approved green card (I-140 + I-485) adds 6–18 months, or significantly longer for applicants born in India or China due to visa backlogs.
Source note: DOL processing times updated regularly at flag.dol.gov/processingtimes.
How much does PERM labor certification cost for employers?
The DOL does not charge a filing fee for the PERM application (ETA-9089). However, employers must pay attorney fees, recruitment costs (newspaper ads, job board postings), and prevailing wage determination filing fees. Under federal regulations (20 C.F.R. §656.12(b)), when an attorney represents both the employer and employee, the employee cannot be required to pay any costs associated with the PERM labor certification. The employer bears these costs entirely.
What is the difference between EB-2 and EB-3 for PERM?
Both EB-2 and EB-3 are employment-based green card categories that generally require PERM labor certification. EB-2 is for workers with advanced degrees (master’s or higher, or bachelor’s plus five years of progressive experience) or exceptional ability. EB-3 covers workers with at least a bachelor’s degree, skilled workers, and unskilled workers. The key strategic difference: EB-2 allows for a National Interest Waiver (NIW) that bypasses PERM entirely for qualifying researchers and professionals — consult an attorney about whether NIW is available for your situation.
How long is a PERM labor certification valid for?
A certified PERM labor certification is valid for 180 days from the date of certification. The employer must file the I-140 Immigrant Petition within those 180 days, or the PERM certification expires, and the process must begin again from scratch.
Can an employee change jobs while PERM is pending?
During the PERM stage (before I-140 approval), the employee generally must remain with the sponsoring employer in the same position. However, once an I-140 petition has been approved and 180 days have passed in I-485 Adjustment of Status processing, the employee may change employers or job roles under the AC21 portability rule — provided the new position is in the same or similar occupational classification.
Does EB-1 require PERM labor certification?
No. EB-1 (priority workers) is PERM-exempt for all three subcategories: EB-1A (aliens of extraordinary ability), EB-1B (outstanding professors and researchers), and EB-1C (multinational managers and executives). Employers and employees who qualify for EB-1 can file the I-140 directly without completing the labor certification process, significantly reducing the time to a green card.
Can PERM be denied, and what happens if it is?
Yes — PERM applications can be denied for errors in the application, failure to respond to an audit within 30 days, finding a qualified U.S. worker during recruitment, or a DOL determination that the job requirements were unduly restrictive. If denied, the employer can file a motion for reconsideration (BALCA appeal) or start the PERM process over. Because a denial resets the process and loses the original priority date, attorney guidance throughout is critical.
