Understanding the Role of Labor Certification in Employment-Based Green Cards

For many foreign nationals aiming to live and work in the United States permanently, the employment-based green card is a key immigration pathway. At the core of this process lies labor certification, also known as PERM—an employer-led effort to demonstrate the unavailability of qualified U.S. workers for a given position.

This detailed guide breaks down what labor certification is, why it matters, the step-by-step process, who it applies to, how long it takes, and the best practices for success.

What Is Labor Certification?

Labor certification is a federal government requirement under the U.S. Department of Labor (DOL) for most employment-based green card petitions. It serves as evidence that:

• No qualified U.S. workers are available, willing, or able to take the position.

• The employment of a foreign worker will not negatively affect the wages or working conditions of similarly employed U.S. workers.

The PERM (Program Electronic Review Management) system is the current framework used to file labor certifications electronically. This process primarily applies to EB-2 and EB-3 green card categories.

Why Labor Certification Is Required

Labor certification plays a vital role in the integrity of the U.S. job market and immigration system. Its key purposes include:

• Protecting domestic workers from being displaced or underpaid.

• Ensuring foreign workers are filling actual labor shortages.

• Establishing the baseline wage an employer must pay.

• Setting the priority date for permanent residency applications.

Only once the DOL certifies a position can the sponsoring employer proceed with the next steps—filing Form I-140 with U.S. Citizenship and Immigration Services (USCIS).

Who Needs Labor Certification?

Labor certification is generally required for the following categories:

• EB-2 (Professionals with Advanced Degrees or Exceptional Ability) – Required unless the applicant qualifies for a National Interest Waiver (NIW).

• EB-3 (Skilled Workers, Professionals, and Other Workers) – Required for all applicants under this category.

Applicants under EB-1 (such as multinational executives or those with extraordinary ability) do not need labor certification.

The PERM Process: Step-by-Step Breakdown

The PERM labor certification process can be broken down into three major phases. It is the employer, not the foreign national, who initiates and manages this process.

Step 1: Prevailing Wage Determination (PWD)

The employer submits a request to the DOL to determine the minimum wage (prevailing wage) for the job in the specific location.

• Form ETA-9141 is used.

• Wage is based on the job title, duties, and geographic location.

• Processing time: 6 to 8 months (subject to change).

This step ensures the foreign worker is not paid below market rate.

Step 2: Recruitment and Labor Market Test

Before filing PERM, the employer must attempt to recruit U.S. workers using government-specified methods:

• Two Sunday ads in a local newspaper.

• A job order placed with the state workforce agency.

• Additional recruitment efforts (for professional roles), such as posting on job boards or company websites.

Recruitment must be genuine, with a minimum 30-day posting period followed by a 30-day quiet period before filing.

Step 3: Filing the ETA-9089 PERM Application

Once recruitment ends, the employer submits Form ETA-9089 to the DOL. This is the official labor certification request.

• Filed electronically through the DOL’s FLAG system.

• Must include job requirements, offered wage, recruitment results, and employer attestations.

• Processing time: 12 to 15 months; longer if audited.

If approved, the DOL issues a certified PERM, valid for 180 days.

What Happens After PERM Is Approved?

With a certified PERM, the employer must file Form I-140 (Immigrant Petition for Alien Worker) with USCIS within 180 days.

The I-140 petition must:

• Include the approved PERM.

• Show the employer can pay the offered wage.

• Demonstrate the worker qualifies for the job.

Once the I-140 is approved and a visa number is available, the foreign national can apply for Adjustment of Status (Form I-485) or Consular Processing abroad.

Exceptions: When Is PERM Not Required?

Some green card categories are exempt from labor certification. These include:

• EB-1A: Individuals with extraordinary ability.

• EB-1B: Outstanding professors and researchers.

• EB-1C: Multinational managers or executives.

• EB-2 NIW: Applicants whose work benefits the U.S. national interest.

These cases allow for self-petitioning and avoid the employer-based PERM process.

How Long Does Labor Certification Take?

Here’s an overview of estimated timelines (as of 2025):

Total time: Approximately 24 to 30 months, though it may extend depending on audits, backlogs, and visa bulletin priority dates.

Common Reasons for PERM Denials

Employers must be meticulous in preparing PERM applications. The most frequent denial causes include:

• Insufficient or poorly documented recruitment efforts.

• Job requirements that are too restrictive or not justified.

• Wage offers below the prevailing wage.

• Discrepancies between job duties and the worker’s qualifications.

• Failure to maintain audit-ready documentation for five years.

An employer may appeal a denial through the Board of Alien Labor Certification Appeals (BALCA).

Audits: What to Expect

About 30% of PERM applications are randomly or targetedly selected for audit by the DOL. An audit adds several months to the process and requires the employer to submit detailed evidence:

• Copies of recruitment advertisements.

• Résumés received and reasons for rejection.

• Proof of good faith recruitment.

• Wage records and organizational charts.

While audits are not necessarily negative, they do require thorough preparation.

Best Practices for Employers and Applicants

• Plan early: Start the PERM process at least 18–24 months before the employee’s nonimmigrant status expires.

• Track recruitment: Maintain precise records of all recruitment activity.

• Review job descriptions: Avoid unrealistic or overly restrictive requirements.

• Consult legal experts: An immigration attorney familiar with labor certification can prevent costly delays or denials.

• Monitor priority dates: Use the Department of State Visa Bulletin to track green card availability by country and category.

How PERM Affects Priority Dates

The PERM filing date becomes the priority date—a key factor in determining when a green card application may proceed. Countries like India and China often face multi-year visa backlogs, making early PERM filing even more crucial.

Labor Certification Statistics (2024–2025 Snapshot)

According to Department of Labor data:

• Over 150,000 PERM applications were filed in FY2024.

• Approximately 80–85% were approved.

• Top occupations: Software engineers, data scientists, financial analysts.

• Top states: California, Texas, New York, Washington.

These figures illustrate both the demand for global talent and the importance of compliance in a competitive immigration landscape.

National Interest Waiver (NIW) as an Alternative

The National Interest Waiver allows eligible EB-2 applicants to self-petition without employer sponsorship or labor certification. Ideal candidates typically:

• Hold advanced degrees or demonstrate exceptional ability.

• Work in areas of substantial national importance (e.g., public health, technology, education).

• Can prove waiving the job offer and PERM benefits the U.S.

This route is gaining popularity, especially among researchers, entrepreneurs, and professionals in emerging fields.

Conclusion

Labor certification is a foundational step in the employment-based green card process. While it requires patience, precision, and regulatory compliance, a well-prepared PERM application ensures that both employers and employees can move forward in the immigration process with clarity and confidence.

Key takeaways:

• Begin early and involve immigration counsel from day one.

• Understand the prevailing wage, recruitment, and documentation requirements.

• Track PERM approvals and priority dates carefully.

• Explore NIW or EB-1 categories if eligible to bypass labor certification entirely.

With the right strategy and support, navigating the labor certification process can be a streamlined path to permanent residency in the U.S.

Additional Resources

• U.S. Department of Labor – PERM Overview

• USCIS Employment-Based Green Cards