PERM labor certification: the steps before the I-140, from 20 CFR 656 and the Department of Labor

PERM is the Department of Labor process an employer must complete before filing an I-140 for most employment-based green cards. The order is fixed: a prevailing wage determination, recruitment and a notice of filing, then the ETA Form 9089, then the I-140 within 180 days of certification. Recruitment is done by the employer, and the rules bar the employer from seeking payment for it.

Most employer-sponsored green cards in the EB-2 and EB-3 categories begin with a step that has nothing to do with immigration forms: the employer has to test the US labor market. The Department of Labor (DOL) describes the result this way: "A permanent labor certification issued by the Department of Labor (DOL) allows an employer to hire a foreign worker to work permanently in the United States." The process is called PERM, and the rules are in 20 CFR Part 656.

The legal idea is in 20 CFR 656.1(a). DOL must certify that "There are not sufficient United States workers who are able, willing, qualified and available at the time of application for a visa and admission into the United States and at the place where the alien is to perform the work," and that "The employment of the alien will not adversely affect the wages and working conditions of United States workers similarly employed." Everything in PERM is built to produce evidence on those two points.

This page lays out the steps in order, with the deadlines and fees the rules set. It describes how PERM works. It does not say whether a particular job or worker will be certified, and it does not tell an employer how to word a job description or which recruitment steps to choose; those are legal judgments that depend on facts. PERM also has features that surprise the worker: the employer runs it, the worker is kept away from the recruitment, and the worker's place in the green card queue is set by the date the PERM application is filed.

Where PERM sits in the green card process

The order of the steps for an employment-based immigrant worker is:

Prevailing wage determination (PWD) from DOL's National Prevailing Wage Center.
Recruitment and the notice of filing by the employer, in the 6-month window before filing.
The PERM application (Form ETA-9089) filed with DOL, which is certified, denied or selected for audit.
Form I-140 filed with USCIS, with the certified labor certification.
Adjustment of status or an immigrant visa, when a visa number is available under the Visa Bulletin.

DOL's own page sets out the same sequence. It says the employer "must request and receive a valid Prevailing Wage Determination" before filing, and that the employer must complete the recruitment steps and the notice of filing before submitting the application. A labor certification is not required in every case. 20 CFR 656.5 lists "Schedule A" occupations, which for professional nurses and physical therapists (under the conditions in that section) are handled under a different procedure in 656.15, and the national interest waiver in EB-2 does not need a job offer. Our page on the EB-2 national interest waiver covers that route.

8 CFR 204.5(a)(2) says an I-140 under the preference categories 203(b)(1), (2) or (3) must be accompanied by "any required individual labor certification, application for Schedule A designation, or evidence that the alien's occupation qualifies as a shortage occupation" under a DOL pilot program. For the "advanced degree" part of EB-2 and for EB-3 skilled workers and professionals, the I-140 rules in 204.5(k) and (l) say every petition under the classification must be accompanied by an individual labor certification or a Schedule A application.

Step 1: the prevailing wage determination

The employer asks DOL's National Prevailing Wage Center for the wage that applies to the job in the area of intended employment. 20 CFR 656.40 sets the method:

If the job is covered by a collective bargaining agreement negotiated at arm's length, the wage in that agreement is treated as the prevailing wage.
Otherwise the prevailing wage is "the arithmetic mean ... of the wages of workers similarly employed in the area of intended employment," using the DOL Occupational Employment Statistics survey unless the employer provides an acceptable survey.
If an employer-provided survey gives a median and no mean, the median is used.

The determination has a validity period that "in no event may be less than 90 days or more than 1 year from the determination date." The employer must file the PERM application or "begin the recruitment period" within that period (656.40(c)). The employer attests on the application that the offered wage "equals or exceeds the prevailing wage," and that the wage the worker will actually be paid when work begins "will equal or exceed the prevailing wage that is applicable at the time the alien begins work" (656.10(c)(1)).

DOL publishes how long prevailing wage requests are taking. On its processing times page, in an update dated 30 September 2026, DOL showed PERM prevailing wage requests that used the OEWS survey being worked from June 2026 receipts. That is a snapshot of one queue on one date. It is not a prediction for any particular case, and the page itself says processing times "may vary from the average depending on the material facts and individual circumstances of the case."

Step 2: recruitment and the notice of filing

Recruitment is the center of PERM. The employer runs it, documents it, and keeps the paperwork. For a professional occupation, 20 CFR 656.17(e)(1) requires the recruitment steps to be done "within 6 months of filing."

Mandatory steps (656.17(e)(1)(i)): "a job order and two print advertisements," each done at least 30 days and no more than 180 days before filing.

A job order with the state workforce agency serving the area of intended employment for 30 days.
An advertisement "on two different Sundays" in the newspaper of general circulation in the area most appropriate to the occupation. If the job requires experience and an advanced degree and a professional journal would normally be used, the employer may place one advertisement in the journal instead of one of the Sunday advertisements.

Three additional steps (656.17(e)(1)(ii)) chosen from ten alternatives: job fairs, the employer's website, a job search website other than the employer's, on-campus recruiting, trade or professional organizations, private employment firms, an employee referral program with incentives, campus placement offices, local and ethnic newspapers, and radio and television advertisements. "Only one of the additional steps may consist solely of activity that took place within 30 days of the filing of the application." None may be more than 180 days before filing.

Non-professional occupations need, at a minimum, the job order and two Sunday newspaper advertisements (656.17(e)(2)).

Advertisement content (656.17(f)) must name the employer, direct applicants to send resumes to the employer, describe the vacancy specifically enough to tell US workers about the opportunity, give the geographic area, and not contain a wage lower than the prevailing wage or job requirements that exceed those on the application.

The notice of filing (656.10(d)) is separate. If there is a bargaining representative, the notice goes to it. If not, the employer posts a notice at the work location "for at least 10 consecutive business days" and also publishes it in any in-house media the employer normally uses for similar jobs. The notice must be provided "between 30 and 180 days before filing the application."

Two rules about people. The worker may not take part: the regulation says the alien and the alien's agent or attorney "may not interview or consider U.S. workers for the job offered to the alien," unless the attorney is the employer's representative who normally does that work (656.10(b)(2)). And the employer must be able to show that U.S. applicants "were rejected for lawful job-related reasons." A U.S. worker who "can acquire the skills necessary to perform the duties involved in the occupation during a reasonable period of on-the-job training" counts as qualified, so rejecting that worker for lacking those skills is not a lawful reason (656.17(g)(2)).

Step 3: the Form ETA-9089

After recruitment, the employer files the application. 656.17(a)(1) says the employer "must file a completed Department of Labor Application for Permanent Employment Certification form (ETA Form 9089)." DOL says employers can file online through a FLAG account (registered through Login.gov), or by mail; DOL states that online submission and documentation "will streamline the process."

On the form, the employer attests under penalty of perjury to the conditions in 656.10(c). Among them:

the wage meets the prevailing wage and the employer has enough funds to pay it;
the employer will be able to place the worker on the payroll by the date of entry;
"The job opportunity has been and is clearly open to any U.S. worker";
U.S. applicants "were rejected for lawful job-related reasons"; and
"The job opportunity is for full-time, permanent employment for an employer other than the alien."

The requirements must be the employer's actual minimums. 656.17(h) says job requirements, unless a business necessity is documented, "must be those normally required for the occupation," and 656.17(i) adds that the requirements "must represent the employer's actual minimum requirements" and that the employer must not have hired workers with less training or experience for substantially comparable jobs. Foreign-language requirements are barred unless justified by business necessity.

Supporting documents are not filed with the application. 656.17(a)(3): "Documentation supporting the application for labor certification should not be filed with the application." The employer keeps them for 5 years from filing (656.10(f)) and produces them on audit.

The filing date matters. Under 8 CFR 204.5(d), the priority date of an I-140 supported by a labor certification "shall be the date the labor certification application was accepted for processing by any office of the Department of Labor." That date is the worker's place in line when visa numbers are limited, and 656.30(a)(2) says the filing date of an approved labor certification may be used as the priority date. Our page on the Visa Bulletin explains how priority dates are used.

Audits, denials and how long DOL is taking

Each application is screened and is then certified, denied or selected for audit (656.17(b)). Some are selected by criteria and some at random. An audit letter must "Specify a date, 30 days from the date of the audit letter" for the employer to submit the documentation, and if it is late the application is denied and the administrative review route in 656.26 is not available (656.20(a)). The Certifying Officer may give one extension of up to 30 days (656.20(c)). A substantial failure to provide documents can lead to supervised recruitment "for up to 2 years" on future applications (656.20(b)).

If the application is denied, the employer has two main options, each with a 30-day clock:

a request for reconsideration, limited for later applications to documents DOL actually received or that existed at filing (656.24(g)); or
a request for review by the Board of Alien Labor Certification Appeals, sent "within 30 days of the date of the determination" (656.26(a)(2)).

A new application "in the same occupation for the same alien" cannot be filed while a BALCA request is pending (656.24(e)(6)). Choosing among these options turns on the reasons stated in the denial, and an attorney reads those reasons.

On timing, DOL's PERM processing page, dated 5 October 2026, shows analyst review working on applications filed in December 2025 and audit review also at December 2025, with an average of 336 calendar days for analyst-review determinations made in August 2026. These are DOL's reported averages for a queue, not a forecast for a new filing; the page says actual times "may vary." Check flag.dol.gov for the current figures before relying on any date.

After certification: the 180 days and the I-140

A certified labor certification does not last. 656.30(b)(1): a certification "expires if not filed in support of a Form I-140 petition with the Department of Homeland Security within 180 calendar days of the date the Department of Labor granted the certification." The employer must then sign the certified form, and 656.17(a)(1) says DHS will not process petitions unless they are supported by "an original certified ETA Form 9089 that has been signed by the employer, alien, attorney and/or agent."

At the I-140 stage, 8 CFR 204.5 adds its own tests:

The employer must show the ability to pay the offered wage: "The petitioner must demonstrate this ability at the time the priority date is established and continuing until the beneficiary obtains lawful permanent residence" (204.5(g)(2)). Evidence is annual reports, federal tax returns or audited financial statements; a financial officer's statement may be accepted for employers with 100 or more workers.
For EB-2 advanced degree cases, the worker must hold an advanced degree or a bachelor's degree plus at least five years of progressive experience in the specialty (204.5(k)(2) and (3)).
For EB-3, a skilled worker needs at least two years of training or experience; a professional needs a US baccalaureate or foreign equivalent (204.5(l)).

USCIS fees (8 CFR 106.2, read from the text in force on 1 October 2026): $715 for Form I-140 (106.2(a)(11)), plus the Asylum Program Fee of $600 for an immigrant petition under 8 CFR 204.1(a), reduced to $300 for a small employer and no fee for a nonprofit (106.2(c)(13)). Premium processing for the covered I-140 classifications is $2,965 with a 15-business-day timeframe (106.4(c)(13) to (16) and (e)(13) to (16)). Check the USCIS fee schedule (G-1055) before paying. Our page on I-140 denials covers what happens after a decision.

Who pays: the rule that surprises employers and workers

656.12(b) is one of the most-misunderstood rules in PERM. It says "An employer must not seek or receive payment of any kind for any activity related to obtaining permanent labor certification, including payment of the employer's attorneys' fees, whether as an incentive or inducement to filing, or as a reimbursement for costs incurred in preparing or filing a permanent labor certification application." Payment "includes, but is not limited to, monetary payments; wage concessions, including deductions from wages, salary, or benefits; kickbacks, bribes, or tributes; in kind payments."

The same paragraph allows the worker to pay the worker's own costs: "An alien may pay his or her own costs in connection with a labor certification, including attorneys' fees for representation of the alien, except that where the same attorney represents both the alien and the employer, such costs shall be borne by the employer."

656.12(a) adds that applications and approved labor certifications "are not articles of commerce. They shall not be offered for sale, barter or purchase." Evidence that an employer sought or received payment is grounds for investigation, denial, revocation or debarment (656.12(c)).

This is why the question of who pays for PERM has no one-line answer. It depends on who the attorney represents and on which costs are involved, and an attorney should answer it before any money moves. Our page on immigration scam warning signs covers payment requests in general.

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Questions people ask

What are the steps in the PERM process?

A prevailing wage determination from DOL, then recruitment and the notice of filing by the employer, then filing the ETA Form 9089, then, once certified, an I-140 filed with USCIS within 180 calendar days of certification (20 CFR 656.40, 656.17, 656.10, 656.30). A visa number must then be available before the worker can adjust status or get an immigrant visa.

How long does PERM take?

DOL reports its own figures and they change. On its processing times page dated 5 October 2026, analyst review was on applications filed in December 2025, with an average of 336 calendar days for determinations made in August 2026. Prevailing wage determinations were separate and earlier in the process. Check flag.dol.gov for current numbers; they are averages, not a forecast for any one case.

Does the employer have to advertise the job?

For a professional occupation, yes: a 30-day job order and advertisements on two different Sundays, plus three additional recruitment steps chosen from ten alternatives, within the window 656.17(e)(1) sets. A notice of filing is also required under 656.10(d). Special rules exist for college and university teachers (656.18) and for Schedule A occupations (656.15).

Can the worker pay for the PERM application?

656.12(b) bars the employer from seeking or receiving payment for any activity related to obtaining labor certification, including the employer's attorneys' fees, and it lets the worker pay the worker's own costs, including attorneys' fees for the worker's representation. When one attorney represents both, those costs are borne by the employer. Ask an attorney before any payment is made.

How long is a labor certification valid?

656.30(b)(1) says a certification expires if it is not filed in support of an I-140 within 180 calendar days of the date DOL granted it.

What happens if my PERM is denied?

The employer can ask for reconsideration within 30 days (656.24(g)) or request review by the Board of Alien Labor Certification Appeals within 30 days (656.26(a)(2)). If no request is made, the denial becomes final, and a new application can be filed at any time (656.24(e)). Which route fits depends on the reasons stated in the denial.

Sources

Last checked 2026-10-10.

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