PERM Labor Certification: The Employer-Sponsored Green Card Process

For many foreign workers in the United States, the path to a green card begins with their employer filing for PERM labor certification through the U.S. Department of Labor (DOL). The Program Electronic Review Management (PERM) system is the process by which employers demonstrate that there are no qualified, willing, and able U.S. workers available for a specific position, thereby justifying the hiring of a foreign worker on a permanent basis. PERM is governed by 20 CFR Part 656 and serves as the first step in most employment-based second preference (EB-2) and third preference (EB-3) green card cases under INA § 203(b)(2) and INA § 203(b)(3).

Why PERM Exists: Protecting the U.S. Labor Market

The fundamental purpose of PERM labor certification is to protect U.S. workers. Before a foreign worker can be permanently employed in the United States through the EB-2 or EB-3 categories (with certain exceptions), the sponsoring employer must prove to the Department of Labor that:

• There are insufficient qualified U.S. workers (citizens and permanent residents) who are able, willing, and available for the position at the time and place of employment.
• The employment of the foreign worker will not adversely affect the wages and working conditions of similarly employed U.S. workers.

This requirement is codified at 20 CFR § 656.1(a) and has been a cornerstone of U.S. employment-based immigration law since the Immigration and Nationality Act was enacted.

Step 1: Prevailing Wage Determination

The PERM process begins with obtaining a prevailing wage determination (PWD) from the DOL's National Prevailing Wage Center (NPWC). The employer must submit Form ETA-9141 to the NPWC, describing the job duties, requirements, and work location. The NPWC then determines the prevailing wage for the position based on the Occupational Employment and Wage Statistics (OEWS) survey data, considering the geographic area and the skill level of the position.

There are four wage levels under 20 CFR § 656.40:

• Level I (Entry): Positions requiring a basic understanding of tasks and limited exercise of judgment.
• Level II (Qualified): Positions requiring knowledge of procedures and tools and moderate judgment.
• Level III (Experienced): Positions requiring special skills and independent judgment.
• Level IV (Fully Competent): Positions requiring advanced expertise and significant independent decision-making.

The PWD is valid for 90 days to one year, depending on the wage source. Processing times for PWDs have fluctuated significantly, and as of recent processing trends, employers should plan for six to twelve months for a PWD to be issued. The employer must offer the foreign worker a wage that meets or exceeds the prevailing wage for the position.

Step 2: Recruitment and the Test of the U.S. Labor Market

After receiving the PWD, the employer must conduct a test of the labor market by advertising the position and demonstrating that no qualified U.S. workers are available. The recruitment requirements are detailed in 20 CFR § 656.17(e) and differ depending on whether the position is classified as professional or nonprofessional.

Mandatory Recruitment Steps (All Positions)

• Job order: The employer must place a job order with the State Workforce Agency (SWA) for a period of 30 days. In Georgia, the SWA is the Georgia Department of Labor, and job orders are placed through the EmployGeorgia system.
• Newspaper advertisements: The employer must place two print advertisements in a newspaper of general circulation on two different Sundays (or, for positions in a professional journal, one journal advertisement).
• Internal posting: A notice of the job opportunity must be posted at the worksite for at least 10 consecutive business days.

Additional Recruitment Steps (Professional Positions)

For positions that require at least a bachelor's degree, the employer must conduct at least three of the following additional recruitment steps under 20 CFR § 656.17(e)(1)(ii):

• Job fairs
• Employer website posting
• Job search website posting (e.g., Indeed, LinkedIn, Monster)
• On-campus recruiting
• Trade or professional organization postings
• Private employment firm engagement
• Employee referral program with incentives
• Campus placement office postings
• Local or ethnic newspaper advertisements
• Radio or television advertisements

Recruitment Report

After completing recruitment, the employer must prepare a detailed recruitment report documenting each recruitment step, the number of applicants received, the disposition of each applicant (hired, rejected, withdrawn), and the lawful, job-related reason for rejecting any U.S. worker. Applicants may only be rejected for failing to meet the minimum requirements stated in the job description or for lacking the ability to perform the job duties. The employer cannot reject applicants based on the foreign worker's qualifications that exceed the minimum requirements; the position must be described based on what is actually required, not tailored to the foreign worker's resume.

Step 3: Filing the PERM Application (ETA Form 9089)

Once the recruitment period has concluded (and the employer has waited at least 30 days but no more than 180 days after completing the final recruitment step), the employer files ETA Form 9089 electronically through the DOL's FLAG system (formerly PERM Online). The application includes detailed information about the employer, the position, the job requirements, the offered wage, and the foreign worker's qualifications.

Critical requirements under 20 CFR § 656.17 include:

• The job requirements must represent the actual minimum requirements for the position, not requirements tailored to the foreign worker.
• The employer must not require experience that the foreign worker gained while employed by the same employer, unless certain exceptions apply (e.g., the employee gained the experience in a different position).
• The offered wage must meet or exceed the prevailing wage.
• The position must be a full-time, permanent position.

Step 4: DOL Adjudication and Audit Risk

After filing, the DOL reviews the application. The application may be certified (approved), denied, or selected for an audit. The audit process is a significant risk in PERM cases.

Audits Under 20 CFR § 656.20

The DOL may select any PERM application for audit. Audit triggers are not publicly disclosed but may include:

• Random selection
• Unusual or suspicious job requirements
• Wage levels that raise questions about the complexity of the position
• Employer size or history of PERM filings
• Job requirements that appear tailored to the foreign worker

When an application is audited, the employer must provide all supporting documentation within 30 days, including the recruitment report, copies of all advertisements, evidence of the job order, the internal posting, resumes received, and documentation of the lawful rejection of any U.S. worker applicants. Failure to respond to an audit within the 30-day deadline results in denial of the application.

Supervised Recruitment

In some cases, the DOL may order supervised recruitment under 20 CFR § 656.21, requiring the employer to conduct the entire recruitment process under DOL oversight. This typically occurs when the initial PERM application is denied and the employer refiles, or when there are concerns about the integrity of the prior recruitment.

After PERM Approval: I-140 and I-485

Upon certification of the PERM labor certification, the employer files Form I-140, Immigrant Petition for Alien Workers with USCIS within 180 days of the PERM approval date. The I-140 petition establishes the employer's ability to pay the offered wage, the foreign worker's qualifications for the position, and the classification under EB-2 or EB-3.

The priority date for the green card application is established as the date the PERM application was filed with the DOL. Once a visa number becomes available (as published in the monthly Visa Bulletin), the foreign worker files Form I-485, Application to Register Permanent Residence or Adjust Status. Processing times for the entire PERM to green card pipeline can range from two to ten years or more, depending on the applicant's country of birth and the preference category.

EB-2 vs. EB-3: Choosing the Right Category

The choice between EB-2 and EB-3 depends on the position's requirements and the applicant's qualifications:

• EB-2 (INA § 203(b)(2)): Requires an advanced degree (master's or higher, or bachelor's plus five years of progressive experience) or exceptional ability. EB-2 generally has shorter visa backlogs than EB-3.
• EB-3 (INA § 203(b)(3)): Covers skilled workers (two or more years of training/experience), professionals (bachelor's degree), and other workers (less than two years of training). EB-3 is more accessible but may have longer wait times.

Some employers file PERM applications under both EB-2 and EB-3 simultaneously (or port the priority date from an earlier filing) to give the worker the best chance of receiving a visa number sooner.

Practical Considerations for Georgia Employers

Employers in the Atlanta metropolitan area and throughout Georgia should be aware of several practical considerations when sponsoring employees through PERM:

• Georgia SWA: Job orders must be placed through the Georgia Department of Labor's EmployGeorgia system. The job order must be active for 30 days.
• Prevailing wages in Georgia: Wage levels in the Atlanta MSA may be lower than in some other major metropolitan areas, but they still reflect the local labor market. Employers must ensure the offered wage is competitive and meets the PWD.
• Newspaper of general circulation: For Atlanta-area positions, the Atlanta Journal-Constitution is the primary newspaper of general circulation. Employers should ensure that the advertisement appears in the Sunday print edition.
• Documentation retention: Employers must retain all PERM-related documentation for five years from the date of filing, as required by 20 CFR § 656.10(f).
• Good faith recruitment: The employer must genuinely test the labor market and cannot pre-select the foreign worker or create a job description designed to exclude qualified U.S. workers.

Common PERM Pitfalls

• Overly specific job requirements: Requiring very narrow skills or combinations of technologies that only the foreign worker possesses raises audit risk and may result in denial.
• Missing recruitment documentation: Employers who do not maintain complete records of every applicant and the reason for each rejection face denial on audit.
• Prevailing wage issues: Offering a wage below the prevailing wage is grounds for denial. Employers must ensure the PWD is current and that the offered wage meets or exceeds it.
• Timing errors: Filing the PERM application outside the 180-day window after completing recruitment, or failing to begin recruitment within the PWD's validity period, can invalidate the application.

Contact J. Lee & Associates Today

The PERM labor certification process is one of the most documentation-intensive and procedurally demanding areas of immigration law. Whether you are an employer considering sponsoring a valued employee or a foreign worker seeking to understand your employer's obligations, the immigration team at J. Lee & Associates can guide you through every step. Contact J. Lee & Associates at (770) 676-4935 for a free consultation. We serve employers and workers throughout Georgia from our Norcross office.