Part 2: How PERM Actually Works

Last week I made the case for why some H-2B employers start thinking about the PERM/EB-3 process. This week is the mechanics — what PERM actually is, how it works step by step, and where things go wrong.

PERM — Program Electronic Review Management — is the labor certification process administered by DOL that must be completed before an employer can file an immigrant petition for most employment-based green card categories, including EB-3. The basic concept is the same as H-2B: the employer must demonstrate that there are no qualified, willing, and available U.S. workers for the position before sponsoring a foreign national. The difference is that this one results in permanent residence.

What the PERM process requires

Prevailing Wage Determination

It starts the same way H-2B does — with a prevailing wage request to DOL's National Prevailing Wage Center. The employer submits the position details: job title, duties, minimum requirements, and work location. DOL assigns a wage level and a minimum required wage for the position. That wage becomes the floor for what the sponsored worker must be paid — permanently, not just for a season.

Job description accuracy matters just as much here as in H-2B, and for some of the same reasons. Requirements that cannot be justified as a business necessity will create problems. And here is a critical distinction that PERM adds on top of H-2B practice: the employer cannot use the sponsoring position itself to satisfy the experience requirement. If a position requires two years of experience, that experience cannot have been gained working for the sponsoring employer in the same role being sponsored. It must come from a genuinely different position or a prior employer. This trips up employers who think sponsoring a long-tenured H-2B worker is straightforward — it may not be, depending on how the experience requirement is framed.

Recruitment

Once the prevailing wage is obtained, the employer conducts a mandatory recruitment period to demonstrate that no qualified U.S. worker is available. For unskilled or "other worker" positions under EB-3 — which is the most relevant category for most H-2B employers — the required recruitment steps include two Sunday print advertisements in a newspaper of general circulation in the area of intended employment, a 30-day SWA job order posting, and an internal notice of filing posted at the worksite for at least 10 consecutive business days.

Unlike H-2B recruitment, PERM recruitment is conducted before the application is filed, not after a NOA. The employer must complete the recruitment steps, document the results, and then file the ETA 9089 application with DOL. The recruitment report must document every U.S. applicant, the outcome for each, and for any applicant who was not hired, a lawful, job-related reason for rejection.

PERM audit triggers

DOL can select PERM applications for audit either randomly or based on specific red flags. Audit rates have historically been significant, and an audit extends the timeline considerably.

Common audit triggers include job requirements that appear to exceed what the position genuinely requires — requirements DOL may determine do not reflect a legitimate business necessity. Overly restrictive or unusual requirements draw scrutiny because they can appear designed to qualify a specific individual rather than to describe the job. Requirements tied to the specific experience or background of the worker being sponsored are a particular risk.

Relatedly — and this is an important practical point — PERM is not a program where you identify the worker first and then build the job description around them. The process requires that the position be defined independently and that the employer genuinely cannot find a qualified U.S. worker for it. The foreign national being sponsored must meet the stated requirements, but the requirements must stand on their own as legitimate business needs.

Filing and processing

Once recruitment is complete and the results documented, the employer files the ETA 9089 with DOL. PERM has no premium processing option — there is no way to pay to expedite. Current processing times at DOL run approximately 18 months or more. If the application is selected for audit, add several additional months.

Once DOL certifies the labor certification, the employer files the I-140 immigrant petition with USCIS. Premium processing is available at the I-140 stage, but depending upon priority dates, costs may not be justified.

What PERM is not

It is not fast. It is not guaranteed. And it is not a program where the employer controls the timeline once the application is filed.

What it is: a documented, defensible process that, when done correctly, results in a labor certification that supports permanent employment authorization for a worker the employer has already invested in. For H-2B employers with strong worker relationships and positions that qualify, it is a meaningful alternative to perpetual cap uncertainty.

Part 3 covers the EB-3 category, the visa backlog, and what realistic timelines actually look like from start to finish.

Meagan Kirchner, Esq., Kirchner Law PLLC

**This article is provided for general informational and educational purposes only and does not constitute legal advice. Reading or interacting with this post does not create an attorney-client relationship. Immigration outcomes depend on individual facts, timing, and government action; nothing in this article should be interpreted as a guarantee of any result.

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