What Is A PERM Application?

A PERM application is the first step of the EB-3 Green Card process in the United States. It is a labor certification application filed by a U.S. employer that wishes to sponsor a foreign worker for lawful permanent residency. This application must be run by the sponsoring employer, not the foreign worker. Through the PERM process, the employer demonstrates that there are no qualified U.S. workers—either U.S. citizens or lawful permanent residents—available for the position, and that hiring the foreign worker is therefore appropriate and permissible.

The PERM application is a critical component of the EB-3 immigrant visa program. The EB-3 visa is a type of employment-based immigrant visa that allows foreign nationals to obtain work authorization and permanent residence in the United States. The PERM process represents the initial stage of this application. Once approved, the employer and the sponsored employee may proceed to the next steps of the Green Card process. To complete the PERM application, the employer must follow specific procedures, such as advertising the position and testing the labor market, which we will examine further below. Only after the PERM application is approved can subsequent filings—such as Form I-140 and Form I-485—be submitted on behalf of the foreign worker.

Why Is the PERM Application Important in the EB-3 Process?

The EB-3 Green Card allows foreign nationals to live and work permanently in the United States. The process begins when a U.S. employer seeks to sponsor a foreign employee (the “beneficiary”) for permanent employment. To qualify, the employer must comply with several regulatory steps, including the PERM labor certification.

The purpose of the PERM application is to confirm that no qualified U.S. workers—citizens or Green Card holders—are available for the position being offered, thereby justifying the employment of the foreign worker. Since protecting the domestic labor market is a priority, the U.S. Department of Labor requires employers to complete the PERM process before moving forward.

By ensuring that the hiring of a foreign worker will not negatively impact the job opportunities, wages, or working conditions of U.S. workers, the PERM application serves as a safeguard for the U.S. labor force. It is not only required for the EB-3 visa, but also for other employment-based immigrant visa categories. Successful completion of the PERM process enables the employer to move forward with the next step—the I-140 immigrant petition—ultimately paving the way for the foreign worker to obtain permanent residency.

How Is a PERM Application Filed?

The PERM application is a multi-step process that U.S. employers must complete when seeking to sponsor a foreign worker for permanent residence. Each step must be carefully followed to comply with Department of Labor (DOL) requirements. The main stages of the process can be summarized as follows:

1. Job Description and Prevailing Wage Determination (PWD):
   The first step in the PERM process is for the employer to submit Form ETA 9141 to request a prevailing wage determination from the DOL. This establishes the minimum wage level that must be offered for the position based on the job duties, requirements, and geographic location. Employers sponsoring a foreign worker under the EB-3 process cannot unilaterally decide the wage to be offered. Instead, the DOL evaluates the position and issues the prevailing wage, which represents the minimum salary that must be paid. This ensures that the foreign worker is compensated at or above the market wage level, protecting both the employee and the U.S. labor market.
2. Recruitment and Labor Market Test:
   Once the prevailing wage determination is issued, the employer must begin recruitment efforts to test the labor market and determine whether qualified U.S. workers are available for the position. This includes publishing job advertisements through specific channels and for specified periods of time, as outlined by the DOL. The employer must review and document all responses to these advertisements. Compliance with the recruitment requirements is critical, as errors during this step often result in delays or denials of the application.
3. Filing the PERM Application (ETA Form 9089):
   After completing the recruitment process and evaluating all U.S. applicants, the employer may file the PERM application using Form ETA 9089. This form provides detailed information about the job position, the recruitment efforts undertaken, and the qualifications of the foreign worker. Like the PWD request, this form is submitted to the Department of Labor for review and adjudication.
4. Processing and Adjudication Timelines:
   Once submitted, the PERM application enters the DOL’s review process. Processing times may vary, but in many cases range between 12 and 16 months. Employers can track the status of their case through the DOL’s online portal.
   • If the application is approved, the employer may proceed with the next step in the process, filing Form I-140 with U.S. Citizenship and Immigration Services (USCIS).
   • If the application is denied, the employer may need to correct any errors, address deficiencies, and refile the application.

Common Challenges in the PERM Application Process and How to Address Them

Employers often encounter certain challenges during the PERM process. The most common include:

1. Insufficient Job Advertising:
   If the position is not advertised broadly enough, the application may be denied. The DOL requires that job postings be published for specified durations and through designated platforms.
   Solution: Employers should ensure compliance by working with an experienced immigration law firm that understands DOL requirements and can place advertisements across the appropriate newspapers and online platforms.
2. Application Errors and Omissions:
   Even minor mistakes or omissions in the PERM application form can lead to denial. Common issues include inaccurate job descriptions or incorrectly stated qualifications.
   Solution: Partnering with a qualified immigration attorney can help ensure accuracy and completeness, minimizing the risk of costly errors.

What Happens After a PERM Application Is Approved?

Once the PERM application is certified, the employer and the foreign worker can proceed to the next stages of the process. The employer must file Form I-140, Immigrant Petition for Alien Worker, with U.S. Citizenship and Immigration Services (USCIS). This step formally establishes the employer’s intent to sponsor the foreign national for permanent residence.

After the I-140 petition is approved, the foreign worker may apply for a Green Card. The next step depends on the worker’s location:

• If the applicant is outside the United States, the process continues through consular processing at a U.S. embassy or consulate.
• If the applicant is inside the United States, the process proceeds through Adjustment of Status (Form I-485).

Approval of the PERM application is therefore a critical milestone, but it is not the final step. Additional filings—including the I-140 petition and the Green Card application—must be completed successfully. For both the employer and the employee, properly navigating the PERM stage helps prevent complications in later stages of the Green Card process.