PERM Labor Certification: Timeline and What Employers Should Know

PERM labor certification is often the first step in employer-sponsored green cards. The process is employer-driven, heavily regulated, and requires careful planning.

The PERM Process Overview

PERM requires employers to demonstrate that no qualified, willing, and able US workers are available for the position. This involves structured recruitment and documentation.

Recruitment Requirements

• Job order with State Workforce Agency
• Two Sunday newspaper advertisements
• Additional recruitment steps for professional positions
• 30-day recruitment period
• 30-day cooling off period

Timeline Expectations

Without audit: 6-12 months. With audit: 12-24+ months. Supervised recruitment adds additional time.

Common Audit Triggers

• Layoffs in the occupation
• Unusual job requirements
• Foreign language requirements
• High rejection rates of US applicants

The Audit Risk

Approximately 30% of PERM applications are selected for an audit (either random or targeted). If audited, the employer must provide all recruitment proofs (newspaper ads, job orders, internal notices) and resumes received. The DOL reviews these to ensure no qualified US workers were rejected.

An audit adds 4-6 months to the process. If the employer failed to keep perfect records or cannot justify why a US applicant was unqualified based strictly on the job requirements, the PERM will be denied. This is why "Audit Files" must be prepared meticulously before the application is even submitted.

Prevailing Wage Determinations (PWD)

Before recruiting, the employer must ask the DOL (via Form 9141) what the minimum wage for the position is in that specific geographic area. This process grew from taking 3 months to nearly 6-8 months recently.

If the DOL returns a wage higher than the employer is willing to pay, the process stops. Strategic selection of the O*NET job code and skill level is essential to getting an accurate wage determination that matches the company's budget while complying with regulations.

The "Same or Similar" Job Rule (I-140 Portability)

Once your I-140 has been approved for 180 days, you can change employers without restarting the PERM process, provided the new job is in a "same or similar" occupational classification. This gives green card applicants freedom to change jobs during the years-long wait for a priority date to become current.

Recruitment strictness: Zero Tolerance for Error

PERM recruitment is hyper-technical. The employer must place:

• Two Sunday Newspaper ads (in the major paper of circulation).
• A Job Order with the State Workforce Agency (SWA) for 30 days.
• For professional jobs: 3 additional steps (Employer website, Monster/Indeed, Job Fairs, Campus recruiting, etc.).

If the ad has a typo, or if the Sunday ad runs on a Saturday, the PERM typically fails. There is no "close enough."

The "Business Necessity" Argument

If the job requirements are deemed "restrictive" (e.g., requiring a foreign language or obscure certification), DOL will audit the case. The employer must prove "Business Necessity"—that the requirement is not tailored to the foreign worker but is essential to the business operations (e.g., a Sales Manager for the LATAM market needs Spanish). Drafting job descriptions that mirror the beneficiary's resume is the #1 cause of PERM denials.

I-140 Ability to Pay

Even if PERM is approved, the I-140 stage requires the employer to prove "Ability to Pay" the offered wage from the day the PERM was filed (Priority Date). Profit/Loss statements or Net Current Assets must be sufficient. We see many small businesses fail here because they show a tax loss to save money, inadvertently disqualifying themselves from sponsorship.

Who pays for the PERM?

By law, the employer must pay all costs associated with the PERM labor certification, including legal fees and advertising costs. The employee cannot pay this, nor can they reimburse the employer. However, the employee can pay for the subsequent I-140 and I-485 stages.

Can I get a promotion during the process?

It's tricky. The green card is for a "future job." If you move to a significantly different role (e.g., Engineer to Manager), the original PERM may no longer be valid, and the company might have to restart the process for the new role. Consult counsel before accepting major promotions.

Disclaimer: This article is for general information only and is not legal advice. Every case is fact-specific. For legal advice, consult a licensed attorney.