PERM: the labor certification that opens the employment-based green card

The employment-based green card generally starts outside USCIS: at the Department of Labor. The statute bars the entry of someone coming to work unless that Department certifies that the hire passes a test. PERM is the process that runs that test, and the employer conducts it, not you.

It is worth understanding the design before the details, because it explains everything that follows. The date PERM is filed becomes your priority date, that is, your place in the visa queue. And every requirement of the position, every advertisement published and every candidate turned down will later be read against the text of the regulation. That is why a PERM case is built backwards.

The test the statute imposes

The statute requires the Department of Labor to certify two things. First: that there are no U.S. workers able, willing, qualified and available for that position, in that place. Second: that hiring you will not worsen the wages and working conditions of similarly situated Americans. For university teachers and people of exceptional ability in the sciences or arts, the yardstick changes: the U.S. candidate must be equally qualified, not merely qualified.

A DIVISION OF ROLES THAT SURPRISES PEOPLE: the Department of Labor certifies the market, but it is USCIS that later decides whether you are qualified for the position, in the employer's petition. And it requires that you already met every requirement of the position on the date PERM was filed. A course completed or experience gained after that date does not count. That is why your qualifications must be mapped before the employer files, not when USCIS asks.

The prevailing wage

Everything starts with the prevailing wage determination, which the employer requests from a national Department of Labor center. Where there is a collective agreement negotiated at arm's length, the agreement's wage governs. Without one, the average from the official wage survey for that occupation in that area governs, and the employer may submit its own survey, provided it follows the regulation's methodology.

That determination is valid for a period ranging from 90 days to one year, and here lies a silent trap: the employer must file the PERM or begin recruitment within that validity. The offered wage must equal or exceed the prevailing wage, and no advertisement may state a lower figure.

A CHANGE UNDER WAY THAT COULD WEIGH HEAVILY: on 27 March 2026 the Department of Labor proposed raising the prevailing wages used in PERM and also in the H-1B. The comment period closed on 26 May 2026 and, as of 30 August 2026, we found no final rule. If it issues as proposed, the wage floor at each level rises, changing the cost of any hire under way. Anyone planning a PERM for the coming months should follow this closely.

Recruitment, a choreography counted in days

For positions whose normal requirement is a bachelor's degree or higher, the regulation requires two mandatory steps and three additional ones. The mandatory ones are a 30-day job order with the state employment agency and two advertisements on different Sundays in the most appropriate newspaper of general circulation. For positions requiring experience and an advanced degree, one of the Sundays may be swapped for an advertisement in a professional journal.

The three additional steps come from a list of ten options, ranging from job fairs to job sites and employee referral programs. And the arithmetic is unforgiving: the mandatory steps must be completed between 30 and 180 days before filing, all within six months, no step may be older than 180 days, and only one of the additional steps may fall in the last 30 days. For positions not requiring a degree, the state agency job order and the two Sundays suffice, within the same window.

There is also the internal notice. The employer notifies the union or, absent one, posts the notice of the position for 10 consecutive business days in a visible place, and publishes it in every internal channel it normally uses for similar positions, likewise between 30 and 180 days before filing.

The content of the advertisements is regulated too. They must name the employer, describe the position precisely and indicate the geographic area. And they may never require more, or offer less, than the process form states. An advertisement with an extra requirement, or with terms worse than those offered to you, sinks the whole case.

Turning down U.S. candidates

The heart of PERM is the recruitment report. In it the employer states, under penalty of law, that the position was genuinely open to any U.S. worker and that candidates were rejected only for lawful job-related reasons, categorized one by one.

The yardstick for what is lawful is written down, and it is stricter than it seems: a U.S. candidate counts as able and qualified if they can acquire the position's skills through a reasonable period of on-the-job training. Rejecting someone who is trainable is not a lawful reason. Education, training, experience or a combination of them count in the candidate's favor.

Against the temptation to tailor the position, the regulation raises fences. Requirements may not exceed the norm for that occupation in the official classification, absent a demonstrated business necessity. A foreign language enters only with specific proof that the position needs it. Alternative requirements must be equivalent to the primary ones.

And the requirements must be the employer's real minimum. Americans cannot be asked for more than you had when you were hired, and experience you gained at that same company, in a substantially comparable position, does not count as a requirement. If there were layoffs in the previous six months, in that occupation or a related one in the area, the employer must notify and consider those laid off.

WHEN THE POSITION IS TOO CLOSE TO YOU: if you hold an interest in the company, are related to owners or officers, or are one of only a few employees, the employer must prove, if audited, that a genuine job opportunity exists, with corporate documents, ownership records, financial history and identification of who makes hiring decisions. And there is a behind-the-scenes prohibition few people know: neither you nor counsel for either party may interview or assess the U.S. candidates.

Audit and supervised recruitment

PERM is filed on attestations: the documentation does not go with it, it is kept for five years, for the day the Department of Labor asks. Selection for audit may be targeted or purely random, and the response is due in 30 days, with a single extension at the agency's discretion.

Failing to respond carries the highest price in the process: automatic denial, loss of the right to review, and possible supervised recruitment on subsequent filings for up to two years. Under supervised recruitment the game inverts: the advertisements are pre-approved by the Department's officer, published where they direct, résumés go straight to them, and the final report must give the specific lawful reason for not hiring each candidate.

Denial, reconsideration and BALCA

Once PERM is denied, two paths open, both with 30-day deadlines. The first is to seek reconsideration from the same officer who denied it, and they accept only documents the Department already had, or that were in the employer's file and could not be produced earlier. The second is to seek review by BALCA, the Department of Labor's board of administrative law judges.

Before BALCA only the existing record and legal argument come in, and the board may uphold the denial, order certification or set a hearing. There is a strategic detail in the regulation that usually decides what to do: without a request for review, the employer may refile the PERM at any time; with review pending at BALCA, it is barred from filing a new case for the same person in the same occupation.

Certification in hand: 180 days and the priority date

The approved certification is not a trophy with indefinite validity. It expires if not used to support the employer's petition to USCIS within 180 days, and a denial for an expired certification cannot be appealed. It is good only for that position, that person and that area, and the person cannot be substituted.

In exchange, the date PERM was filed becomes your priority date, your place in the visa queue, and an approved petition preserves that date for the future, including if you change category later. The certification may be invalidated for fraud and revoked by the Department of Labor, with 30 days to respond.

THE EMPLOYER PAYS FOR PERM, AND THAT IS A WRITTEN RULE: it may not receive or seek any payment for the certification process, and that includes legal fees where the same lawyer represents both sides. Selling or trading a certification leads to investigation, denial, revocation and debarment from the program. Someone who agrees to fund their employer's PERM is not saving money: they are building a defect into their own case.

Schedule A: when the market test is already done

For two lists of occupations, the Department of Labor has decided in advance that U.S. workers are lacking and that wages are not harmed. The process then skips the Department entirely: the case goes straight to USCIS, along with the employer's petition, carrying the uncertified form, the prevailing wage determination and proof of the internal notice.

Group I covers physical therapists and professional nurses, who in fact proceed only this way. Group II reaches people of exceptional ability in the sciences or arts, including university teachers and the performing arts, on showing widespread international recognition proven by at least two of seven criteria. The immigration officer's decision ends the Department of Labor track, with no BALCA, but an appeal lies within USCIS itself.

University teachers: competitive selection

Universities may replace ordinary recruitment with proof that the foreign teacher was chosen in a competitive selection process in which they proved more qualified than each U.S. candidate. This is documented with a statement from the hiring authority, the committee's report, at least one advertisement in a nationally circulated professional journal, and the total number of candidates. Filing must occur within 18 months of the selection.

Where cases usually fail

The arithmetic of deadlines: a mandatory step outside the 30-to-180-day window, more than one additional step in the last 30 days, an internal notice shorter than 10 business days.
A prevailing wage determination that expired before filing or before recruitment began.
An advertisement out of step with the form: an extra requirement, a lower wage, terms worse than those offered to you.
Requirements inflated above the occupational norm with no demonstrated business necessity, or a foreign language without proof.
A person who qualifies only through the alternative requirements, without the form stating that any suitable combination of education, training or experience is acceptable.
Experience gained at the same company, in a comparable position, used as a requirement for the position.
Rejecting a U.S. candidate who could learn the role through a reasonable period of on-the-job training.
An audit unanswered within 30 days: denial with no review and the risk of supervised recruitment for two years.
An approved certification that expires without the employer filing the petition with USCIS within 180 days.

Legal basis

INA § 212(a)(5)(A), 8 U.S.C. § 1182(a)(5)(A): the two-pronged test, the equally-qualified yardstick for teaching, and the certification's validity on a change of employment under § 204(j).
20 C.F.R. part 656, as of 11 August 2026: § 656.10 covers the attestations and the internal notice; § 656.11, the bar on substituting the person; § 656.12, the payment prohibition; § 656.17, recruitment, requirements and rejections; § 656.18, university teachers; § 656.20, audits; § 656.21, supervised recruitment; § 656.24, the decision; §§ 656.26 and 656.27, BALCA; § 656.30, the 180-day validity and the priority date; § 656.32, revocation; and §§ 656.40 and 656.41, the prevailing wage. Schedule A is at §§ 656.5 and 656.15.
USCIS Policy Manual, volume 6, part E, chapters 6 and 7: use of the certification in the employer's petition, expiration, and the Schedule A procedure.
Department of Labor proposal to revise prevailing wages: 91 FR 15454, of 27 March 2026, comments closed 26 May 2026, with no final rule located as of 30 August 2026.
Content verified on 24 August 2026, and the wage proposal rechecked on 30 August 2026. The Department of Labor's operational instructions, such as forms and filing systems, change more often than the regulation: confirm current practice before acting.

Verified 24 August 2026. Written from INA § 212(a)(5) and the complete 20 C.F.R. part 656, §§ 656.1 through 656.41, in the eCFR version of 11 Aug 2026, last amended 13 Dec 2021, and from chapters 6 and 7 of part E of volume 6 of the USCIS Policy Manual. The DOL's operational instructions, forms and filing systems change more often than the regulation: confirm current practice before acting.

General informational content. It is not legal advice and does not create an attorney-client relationship. Immigration rules change frequently and may be enjoined by a court. Before acting, confirm that the rule is in force and consult an attorney about your own circumstances.

← Back to practice areas