For employers
PERM Labor Certification
The first step in most employment-based green card cases, and the one where the consequential decisions are made earliest and are hardest to undo.
- 20 C.F.R. Part 656 — current provisions and recent amendments, esp. §§ 656.17, 656.20, 656.21, 656.24
- Current prevailing wage determination validity periods
- Current audit response deadlines and supervised recruitment procedures
- Current ETA-9089 filing mechanics and portal requirements
What PERM is asking
PERM is a test of the U.S. labor market. Before the Department of Labor will certify that a foreign worker may be sponsored for permanent residence, the employer must show it conducted a good-faith recruitment effort for the position and did not find a qualified, willing, and available U.S. worker.
That framing matters, because it explains why so much of the process is unforgiving. The recruitment is evidence. If it was designed or documented poorly, there is usually no way to fix it after the fact other than starting over.
Authority: 20 C.F.R. Part 656. Verify against the current text before relying on it.
Where cases go wrong
Requirements must reflect the actual minimum needed to perform the job, not the profile of the person you want to hire. Requirements that are unduly restrictive, or that appear tailored, draw audits and denials.
The determination has a validity period, and the recruitment and filing must sit inside it. Cases are lost to calendar management rather than to substance.
Wrong publication, wrong dates, wrong duration, missing documentation of a step that was actually performed. Many of these are invisible until an audit asks for the file.
Every U.S. applicant must be considered in good faith and rejections must rest on lawful, job-related grounds documented at the time. Reconstructing this later does not work.
The form must match the recruitment and the underlying facts precisely. Inconsistencies between form and file are what audits are built to find.
Audits
An audit means the Department is asking for the recruitment file. What you can produce is what you assembled at the time — this is the moment the earlier documentation decisions come due.
Before you start
The best time to involve counsel is before the job posting is written — not after recruitment has run. Two conversations worth having early:
If your employee is on H-1B, the sixth-year extension math depends on when PERM was filed. Starting late costs you options.
If your employee is on TN, E, or H-1B1 status, beginning green card sponsorship carries risk that should be planned for deliberately.
Is PERM even necessary?
Not always. EB-1B, EB-1C, EB-1A, and the national interest waiver all reach permanent residence without a labor certification. For the right employee, one of those is faster, cheaper, and less operationally burdensome than PERM.
Worth checking before you commit to a recruitment cycle.
If you've received a Request for Evidence
PERM cases draw audits and supervised recruitment orders rather than Requests for Evidence — but the I-140 that follows a certified PERM draws RFEs, and the two are usually connected.
What these requests typically ask for
- The recruitment file behind the certification, where the I-140 raises a question about how the certification was obtained
- Ability to pay the proffered wage from the priority date forward
- Whether the beneficiary actually held the required experience before the qualifying employment began
- Whether the job opportunity as described still exists on the terms certified
Read the notice before anything else. The language an adjudicator chooses usually identifies the specific concern, and a response that sends more of the same material rather than addressing that concern is how an answerable request becomes a denial. Response deadlines are printed on the notice, are short, and are not routinely extended.
I take on responses to requests for evidence, audits, and notices of intent to deny in matters I did not file. Bring the notice and the original filing to the first conversation.
Related
EB-2 / EB-3 immigrant petitions
Immigrant petitions following labor certification, including ability-to-pay and successor-in-interest questions.
Read more →Green card sponsorship overview
PERM, EB-2, EB-3, EB-1B, and EB-1C — plus the two categories that require no sponsorship at all.
Read more →Categories requiring no sponsorship
EB-1A and the national interest waiver let certain employees petition for themselves, with no PERM and no job-offer commitment from you.
Read more →H-1B specialty occupation
Specialty occupation petitions, cap registration strategy, cap-exempt analysis, change of employer, amendments, extensions.
Read more →Let's talk about your matter.
Consultations are scheduled directly with me. If you're facing a filing deadline or holding a notice with a response date on it, say so first and I'll prioritize it.
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[email protected] · (508) 591-0775 · Kingston, Massachusetts