In professional immigration processes sponsored by a company in the United States, especially in the EB-2 and EB-3 categories, it is common to hear the expression “PERM process.” In reality, the path to lawful permanent residence involves distinct steps before the U.S. Department of Labor — DOL — and U.S. Citizenship and Immigration Services — USCIS.
The first step is obtaining the permanent labor certification, known as the labor certification or PERM. After approval by the DOL, the sponsoring employer must file the Form I-140 petition with USCIS.
Although they are related, the PERM and the I-140 serve different purposes. The PERM assesses whether hiring the foreign worker will harm the U.S. labor market. The I-140, in turn, verifies whether the employer, the worker and the job offer meet the requirements of the intended immigration category.
When is a labor certification required?
A labor certification is normally required in employment-based petitions in the EB-2 and EB-3 categories, when the process is sponsored by a U.S. employer.
The certification is not required in all professional immigration categories. EB-1 cases, certain EB-2 petitions with a National Interest Waiver — NIW — and some occupations classified under Schedule A may follow different procedures, without the traditional PERM step.
Therefore, before starting job advertisements, recruitment or a prevailing wage request, it is necessary to confirm whether the chosen category actually requires a labor certification. An inadequate legal structure can generate significant costs and delay the entire process.
Who is responsible for the PERM process?
The PERM process is conducted by the U.S. employer. The foreign worker may not file a labor certification on their own in order to create a job opportunity.
The company must demonstrate that it has a permanent, full-time position that it genuinely intends to fill. It must also prove that it carried out the recruitment procedures required to verify the existence of U.S. workers who are qualified, available and willing to fill the position.
The attorney may advise the company, prepare the strategy, review documents and handle the filings. However, it is the company that must define the position and the minimum requirements, evaluate the U.S. applicants and make the hiring decisions.
Steps of the labor certification
1. Defining the position and its requirements
The employer must define a permanent, full-time position, indicating:
- the job title and the respective duties;
- the place of work;
- the wage offered;
- the educational requirements;
- the professional experience required;
- any training, licenses or certifications that may be necessary.
The requirements must reflect the genuine needs of the company and of the position. It is not permitted to create artificially elaborate requirements merely to match the foreign worker’s résumé.
The job description must also be consistent with the occupational classification used, with the prevailing wage, with the advertisements and, later, with the information submitted in Form I-140.
2. Prevailing wage request
Before filing the PERM, the employer must request a Prevailing Wage Determination — PWD — from the National Prevailing Wage Center through the FLAG system.
The prevailing wage is calculated according to the occupation, the professional level and the region where the work will be performed. For the process to be approved, the employer must offer and demonstrate the ability to pay at least the wage determined for the position.
The request is made through Form ETA-9141 and requires attention to the choice of the occupational code, the level of experience, the duties and the minimum requirements. An inadequate classification may result in an incorrect wage or in future questioning by the DOL and USCIS.
The DOL provides the FLAG system and the corresponding guidance on the PERM and prevailing wage process on its official Permanent Labor Certification page.
3. Recruitment of U.S. workers
After the wage determination is obtained, the company must carry out the recruitment required by the PERM regulations.
For professional occupations, the requirements normally include:
- posting a job order with the competent state agency;
- publishing advertisements in a newspaper of general circulation on two different Sundays;
- posting an in-house notice of the position at the workplace;
- carrying out the three additional recruitment steps set out in the regulations.
For non-professional occupations, the recruitment requirements may be different, but they also involve the job order and public advertisements.
The in-house notice must remain posted for ten business days. The mandatory recruitment steps must, as a rule, take place between 30 and 180 days before the PERM application is filed. Improper compliance with these periods is one of the most common causes for having to restart the process.
The details are set out in the applicable federal regulations, particularly in 20 CFR Part 656.
4. Review of the U.S. applicants
The company must review the résumés received and record the objective reasons why each U.S. applicant was not selected.
The justifications must relate to the minimum requirements previously established for the position. It is not enough to state generically that the applicant “was not suitable” or “did not have the profile.”
It is also important that the foreign worker and their representatives not conduct the screening or decide which U.S. applicants will be rejected. The company must maintain effective control over the recruitment and preserve the documents showing how each application was handled.
5. Filing Form ETA-9089
Once the recruitment is complete, the employer files Form ETA-9089 with the DOL, normally through the FLAG system.
The form describes the position, the employer, the recruitment process and the qualifications of the foreign worker. The information must be consistent with the PWD, the advertisements, the in-house notice and the documents kept by the company.
The DOL may approve the certification, request an audit or deny the application. In the event of an audit, the employer must submit the documents proving compliance with all steps of the process.
How long does the PERM take?
There is no fixed deadline for the entire process, since the time depends on the prevailing wage review, the preparation of the recruitment, any audit and the DOL’s administrative workload.
The FLAG processing page consulted on August 3, 2026 indicated an approximate average of:
- 403 calendar days for cases in Analyst Review;
- 290 calendar days for cases in Audit Review.
These figures are administrative averages and may change. The period for preparing the position, the prevailing wage request and the recruitment are additional steps and must be taken into account in the overall planning.
Updates must be checked directly on the official FLAG Processing Times page.
What happens after the PERM is approved?
With the labor certification approved, the employer must file Form I-140 with USCIS within the certification’s validity period.
Approved labor certifications are valid for 180 days. If the I-140 is not received by USCIS within that period, the certification may lose its usefulness for the immigration process.
PERM approval does not grant a visa, immigration status or work authorization. It only allows the employer to move forward to the immigrant classification step before USCIS.
The I-140 petition
Form I-140 is the petition through which the employer requests that the worker be classified as an employment-based immigrant, usually in the EB-2 or EB-3 category.
In the I-140, USCIS mainly examines:
- whether the company has a legitimate job offer;
- whether the worker meets the requirements of the category;
- whether the worker has the qualifications indicated in the labor certification;
- whether the employer has the financial ability to pay the wage offered;
- whether the documentation submitted is consistent and sufficient.
The I-140 must be accompanied by the approved labor certification, the company’s documentation, the proof of financial ability and the documents demonstrating the worker’s qualifications.
Documentation normally required
Employer documents
The company’s documentation may include:
- certificate of incorporation or business registration;
- Federal Employer Identification Number — FEIN;
- address and operational information;
- description of the position offered;
- Prevailing Wage Determination;
- copy of the certified ETA-9089;
- advertisements published;
- job order;
- in-house notice of the position;
- résumés received;
- recruitment report;
- justifications for not hiring U.S. applicants;
- statement or job offer letter;
- federal tax returns;
- annual reports;
- audited financial statements;
- payroll records, where applicable.
To demonstrate the ability to pay, USCIS normally considers tax returns, annual reports, audited financial statements and, in certain situations, proof of payment of the wage offered.
The official guidance on this requirement is available in the USCIS Policy Manual — Ability to Pay.
Foreign worker documents
The worker will normally need to submit:
- passport;
- professional résumé;
- diplomas and certificates;
- academic transcripts;
- academic credential evaluation, when required;
- professional experience letters;
- proof of previous employment;
- professional licenses;
- technical certifications;
- documents relating to name changes;
- U.S. immigration documents, if the worker is in the United States;
- complete translations into English, accompanied by the translator’s certification.
The experience letters should preferably indicate the position held, the period of work, the work schedule, the main duties performed and the technical knowledge used.
The documentation must demonstrate that the worker already possessed the qualifications required as of the relevant date of the process. It is not enough to submit a generic résumé or documents without a clear correspondence with the requirements recorded in the ETA-9089.
I-140 timeline and premium processing
Regular I-140 processing time varies according to the USCIS center, the category and the caseload.
In certain categories, the employer may request Premium Processing. For most I-140 petitions based on a labor certification, USCIS provides for an adjudicative action within 15 business days after the premium processing request is properly filed.
That action may be an approval, a denial, a Request for Evidence or another procedural act provided for by USCIS. Premium Processing does not speed up the PERM review, does not guarantee approval and does not anticipate the availability of a visa number.
The information must be confirmed on the official USCIS page on Premium Processing.
What is the priority date?
In processes based on a labor certification, the priority date normally corresponds to the date on which the labor certification application was accepted for processing by the DOL.
That date determines the worker’s position in the queue for immigrant visa availability. Therefore, even if the I-140 is approved, it may still be necessary to wait for a visa number to become available in the EB-2 or EB-3 category.
Availability is tracked monthly through the Department of State Visa Bulletin. Depending on the circumstances of the case, the worker may proceed through adjustment of status in the United States or through consular processing.
Does an approved PERM mean approved lawful permanent residence?
No.
Approval of the labor certification does not mean that the worker will automatically receive lawful permanent residence. Nor does it mean that the I-140 will be approved or that a visa number will be immediately available.
The complete process may involve:
- approval of the labor certification;
- approval of the I-140;
- visa availability according to the priority date;
- consular processing or adjustment of status;
- admissibility review and the other immigration requirements.
Each step has its own requirements. A problem with the company’s financial ability, with the professional documentation, with the recruitment or with the availability of the category may compromise the final outcome.
Main risks of the process
The most frequent problems are related to:
- job requirements drawn up specifically for the foreign worker;
- inconsistency among the advertisements, the PWD, the ETA-9089 and the I-140;
- absence of recruitment documentation;
- weak justifications for rejecting U.S. applicants;
- error in the occupational classification;
- wage offered below the prevailing wage;
- the employer’s lack of financial ability;
- insufficiently proven professional experience;
- late filing of the I-140, after the PERM’s 180-day validity period;
- corporate changes or relevant changes in the company;
- confusion between I-140 approval and the immediate availability of lawful permanent residence.
Conclusion
The labor certification and Form I-140 are central steps in lawful permanent residence processes sponsored by employers in the United States.
The PERM demonstrates that the company complied with the rules protecting the U.S. labor market. The I-140, in turn, demonstrates that the worker and the employer meet the requirements of the immigration category and that the job offer is legitimate and financially viable.
Adequate preparation requires coordination among the company, the worker and legal counsel from the moment the position is defined. An error made in the job description, in the recruitment or in the documentation may compromise months of work and require restarting the process.
Taborda Lima & Advogados Associados works on structuring and monitoring professional immigration processes, including eligibility analysis, labor certification, the I-140 petition, consular processing and adjustment of status in the United States.
