Which Green Card Cases Require PERM

PERM is required for most EB-2 (advanced degree professionals and workers of exceptional ability) and EB-3 (skilled workers, professionals, and unskilled workers) employment-based green card petitions. Not every path requires it. EB-1 petitions for extraordinary ability, outstanding researchers, and multinational executives bypass the process entirely. EB-2 National Interest Waiver cases (where an applicant self-petitions based on benefit to the United States) also skip PERM, as do Schedule A occupations like nurses and physical therapists.

For workers already in the United States on H-1B status, timing matters. PERM processing under current DOL conditions can extend beyond two years, and employers should initiate the process well before an H-1B renewal becomes an issue. The date the PERM application is filed with DOL becomes the employee’s priority date, which controls when adjustment of status or consular processing can begin. Starting early can help protect that date.

The PERM Process Step by Step

PERM follows a defined sequence with strict documentation requirements at each stage. Understanding the full timeline helps employers plan staffing decisions and manage the sponsored employee’s expectations realistically.

Prevailing Wage Determination

The employer first files Form ETA-9141 with the DOL’s National Prevailing Wage Center to establish the minimum salary required for the specific position and location. San Francisco Bay Area prevailing wages for technical occupations rank among the highest in the country under DOL geographic wage indexing. Under current conditions, prevailing wage determinations can take six to eight months to issue, and that estimate is subject to change.

Formal Recruitment Campaign

Once the prevailing wage determination is issued, the employer runs a structured recruitment campaign. For professional occupations, this means a State Workforce Agency job order for at least 30 days, two Sunday newspaper advertisements, and at least three additional recruitment steps selected from a DOL-approved list. The foreign national employee can’t participate in recruitment in any form. Any U.S. worker who meets the minimum qualifications for the position as documented must be genuinely considered. After recruitment closes, the employer waits a mandatory 30-day period before filing.

ETA-9089 Filing & DOL Review

The employer files Form ETA-9089 electronically through DOL’s Foreign Labor Application Gateway system. DOL then certifies, audits, or denies the application. Standard ETA-9089 processing currently runs approximately 16 months, though that figure is subject to change. Audit-selected cases take considerably longer. Audits can be random or triggered by job requirements that appear narrowly tailored to the sponsored employee, unusual skill combinations, or inconsistencies in recruitment documentation. Employers must retain the full recruitment audit file for at least five years from the filing date.

I-140 Filing After Certification

Once DOL certifies the PERM application, the employer has 180 days to file Form I-140 with USCIS. Missing that window voids the certification and requires restarting from scratch, including loss of the original priority date. Total elapsed time from the initial prevailing wage request through I-140 filing can exceed two and a half years under current processing conditions.

Direct Attorney Oversight Reduces Audit Exposure

PERM compliance requires coordination across multiple departments simultaneously. HR owns the recruitment process, finance must document ability to pay, and legal is responsible for ensuring each step meets DOL standards. When those pieces don’t align, documentation gaps can appear. Audits can follow.

Our clients work directly with our attorneys throughout the process, not with rotating support staff. Misclassified job duties, wage attestation inconsistencies, or requirements that look tailored to the sponsored employee can trigger audits that set a case back by years. We review documentation at each stage to reduce that exposure. For employers in San Francisco’s technology and healthcare sectors (industries that can draw heightened DOL scrutiny), that level of oversight is important.

Common Questions About the PERM Process

Who Pays the PERM Costs?

The employer bears all costs. There’s no government filing fee for the PERM application itself, but recruitment advertising, attorney fees, and I-140 filing fees are the employer’s responsibility. As of April 2024, USCIS requires a $715 base filing fee for Form I-140 plus a separate Asylum Program Fee: $600 for most employers, $300 for small employers with 25 or fewer full-time employees, and $0 for nonprofits. The sponsored employee can’t be charged for any part of the process.

Can the Employee Help with Recruitment?

No. DOL regulations prohibit the foreign national beneficiary from participating in recruitment in any way. The employer must conduct the entire process independently, and any involvement by the sponsored employee can be grounds for denial.

What Triggers a DOL Audit?

Audits can be random, but they’re also triggered by job postings with requirements that appear customized for the sponsored employee, unusual skill combinations, or documentation inconsistencies. Technology positions with highly specific technical requirements are among the roles that draw scrutiny in PERM labor certification filings.

What Happens If PERM Is Denied?

The employer can appeal to the Board of Alien Labor Certification Appeals. If the denial stands or the employer doesn’t appeal, the process must restart and the original priority date is lost.

Can PERM Start While the Employee Is on H-1B Status?

Yes, and it usually should. Employers can initiate the PERM process while the sponsored employee maintains valid H-1B status. In certain circumstances, H-1B extensions are available while a green card petition is pending, which can help the employee maintain lawful status throughout the multi-year process.

Start Your PERM Case with Law Offices of Shamieh, Shamieh & Ternieden

The sooner PERM is filed, the sooner the priority date is established. We can assess your situation, identify audit risk factors, and manage the documentation from prevailing wage determination through I-140 filing. We serve employers and sponsored employees in five languages across the Bay Area and nationwide.