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September 18, 2026
GWP IMMIGRATION LAW
Before Form I-140, Your Employer Has to Prove No U.S. Worker Wants the Job
PERM is the Department of Labor’s mandatory labor market test for most EB-2 and EB-3 green card sponsorships.
A poorly documented PERM case doesn’t just risk an audit — it can cost a sponsored employee years of priority date and force the whole process to restart. Here is exactly what your employer is legally required to do before a labor certification can support Form I-140.
Updated September 18, 2026 · GWP Law · Las Vegas, NVTHE CONTEXT
Why This Comes Before Everything Else
PERM (Program Electronic Review Management) is the system the U.S. Department of Labor uses to test the labor market before an employer can sponsor a foreign worker for most EB-2 and EB-3 green cards.
It is governed by 20 CFR Part 656, and its entire purpose is to confirm that hiring a foreign national will not displace a U.S. worker who is qualified, willing, available, and able to do the job.
Only after the Department of Labor certifies Form ETA-9089 can the employer file Form I-140 with USCIS.
The date the employer files ETA-9089 becomes the employee’s priority date — the number that determines the employee’s place in the green card line.
Not every occupation goes through this path: employees who qualify for extraordinary-ability classification may sponsor through the O-1 visa instead, without a labor certification at all.
The Prevailing Wage Determination Comes First
Before recruiting anyone, the employer must request a Prevailing Wage Determination from the DOL’s National Prevailing Wage Center, using Form ETA-9141 through the FLAG portal.
The NPWC assigns one of four OES wage levels based on the job’s complexity, required experience, and supervisory duties, and the employer must commit to paying at least 100% of that wage once the employee has a green card.
A Level I wage generally reflects entry-level duties with routine supervision, while Level IV reflects senior duties performed with independent judgment — the level assigned depends on the actual job requirements, not on the employee’s title.
Recruitment cannot legally begin until this determination is issued, and the wage it sets locks in the salary floor for the rest of the case.
Good-Faith Recruitment Is Not Optional
Once the wage is set, the employer must run a real recruitment campaign, completed between 30 and 180 days before filing ETA-9089.
Every occupation requires, at minimum, a 30-consecutive-day job order with the State Workforce Agency, two Sunday newspaper advertisements in a paper of general circulation, and an internal Notice of Filing posted for at least 10 consecutive business days, under 20 CFR 656.17.
Positions classified as “professional” additionally require three more recruitment steps chosen from a ten-item list in 20 CFR 656.10 — job fairs, campus recruiting, or trade publications among them.
Occupations that typically require a bachelor’s degree or higher — engineers, accountants, and most corporate roles among them — are treated as professional for this purpose, which is why most PERM cases involve the full slate of recruitment steps.
Every U.S. applicant who responds must be reviewed and can only be rejected for documented, job-related reasons.
A generic rejection note is not enough; the employer’s recruitment report must state, applicant by applicant, the specific lawful reason each candidate did not meet the job’s requirements.
The Six-Month Layoff Rule
If the employer laid off workers in the same or a “related occupation” — defined as one requiring more than 50% of the same essential duties — in the six months before filing, additional obligations apply under 20 CFR 656.17(k).
The employer must affirmatively notify and consider those laid-off U.S. workers for the PERM position — a job board posting is not enough, and the outreach must be documented.
“Related occupation” is broader than it sounds: a laid-off customer service manager can count as related to a sponsored operations manager role if the core duties substantially overlap.
Employers sometimes assume a general layoff notice satisfies this duty; it does not — the notification and consideration must be specific to the PERM position and kept in the file as proof.
Your Employer Must Pay Every PERM Cost
Under 20 CFR 656.12(b), the sponsoring employer — not the foreign worker — must pay for recruitment advertising and its own attorney’s fees for preparing the PERM case.
The employer cannot recoup these costs through salary deductions or side reimbursement agreements; a sponsored employee may still hire and pay their own independent immigration counsel, separate from the employer’s attorney.
A signed side agreement asking the employee to cover advertising or legal costs does not fix this — it is itself a violation and can be used as audit evidence against the employer.
Employers found to have shifted PERM costs to the employee risk case denial, monetary penalties, and debarment from filing future labor certifications.
Audits Are Common, Not Rare
Industry estimates suggest roughly a quarter to a third of PERM filings are selected for audit, though the DOL does not publish an official audit rate.
Common triggers include job requirements that look tailored to one candidate, a family or financial relationship between employer and worker, recent layoffs, a small or newly formed company, and experience requirements met only while working for the sponsoring employer.
An audited employer has 30 days from the date of the audit letter to respond with complete documentation; a further extension is technically available under 20 CFR 656.20 at the Certifying Officer’s discretion, but is rarely granted in practice.
A missed or incomplete audit response is treated as a withdrawal, and the case is denied — it is not paused for a later resubmission.
This is why the recruitment file has to be built while the steps are happening, not reconstructed from memory after an audit letter arrives.
Source: 20 CFR 656.17 (business necessity standard for non-normal job requirements).
A REAL CASE
A Recruitment File Built Six Months Too Late
An employer called me after already filing a PERM case on its own, using a template a colleague had shared.
The job requirements listed a language skill with no documented business reason, and the company had laid off two employees in a related role five months earlier.
I reviewed the file, helped the employer document the business necessity for the language requirement, and confirmed in writing that the laid-off workers had been notified and considered under 656.17(k) before the case moved forward.
The filing was selected for audit — as expected — and it was certified because the file was complete before the audit letter ever arrived.
What to Do Now
THE PATH FORWARD
Certification Is the Foundation, Not the Finish Line
A certified ETA-9089 only opens the door to Form I-140 — it does not guarantee it, and it does not by itself protect the priority date if the case is mishandled afterward.
Once I-140 is approved, the employee still has to choose between adjustment of status and consular processing, and may need a bridge work permit like the EAD C09 while that final step is pending.
Employers who document every step before filing, rather than after an audit letter arrives, are the ones who keep their sponsored employees’ timelines intact.
References
- 20 CFR Part 656 — Labor Certification Process for Permanent Employment
- 20 CFR 656.17 — Recruitment and layoff obligations
- 20 CFR 656.10 — General recruitment requirements
- 20 CFR 656.12 — Payment of PERM costs
- DOL FLAG — Prevailing Wage Program
- USCIS Policy Manual, Volume 6, Part E, Chapter 6
Related PERM guides
Continue with the current PERM processing timeline and what happens if an employer withdraws an approved PERM.
Building a PERM Case That Survives an Audit
We prepare labor certification cases with the documentation an audit expects to see, before it’s ever requested.
Book a Consultation →This article is for informational purposes only and does not constitute legal advice. Consult a qualified immigration attorney before taking any action. · Last verified: September 18, 2026 · Reviewed by: Kathia Quirós, Immigration Attorney · GWP Immigration Law
