Empowering Employers

Ten things that you need to know before you file a labor certification application with the DOL.

People walking on a maze of twisting roads against yellow screen
Alexandra Sarrine

Alexandra Sarrine and Elizabeth L.A. Garvish

October 9, 2023 12:00 AM

The labor certification process is generally the first step in the employment-based immigration process.

The U.S. Department of Labor's Employment and Training Administration (ETA) administers the Permanent Labor Certification Program, commonly known as PERM. Its primary objective is to evaluate whether hiring a non-U.S. citizen would negatively impact the chances of equally qualified U.S. workers securing similar job opportunities. In this assessment, the ETA considers factors such as the potential adverse effects on the working conditions and wages of U.S. workers in the same industry.

Employers seeking to hire non-U.S. citizens are required to obtain a PERM certification before they can submit a petition to the U.S. Citizenship and Immigration Services (USCIS) for an employment-based visa, like the EB-2 visa category. Once the employer has successfully obtained the certification, they can proceed to file USCIS Form I-140, officially known as the "Immigrant Petition for Alien Workers."

  1. Processing times are off the charts. As of October 2023, current processing times for the DOL issuing prevailing wage determinations are six plus months, and processing of the labor certification applications is 11 months or more. Be ready to settle in for a long ride.
  2. An audit is not as bad as you might think. Audits can happen for cause or randomly. Sometimes, you know you will receive one based on the filing, and sometimes, you might be selected at random. Good attorneys are prepared for audits before they are issued, and that is a good thing because you generally only have 30 days to respond. Make sure to discuss the possibility of an audit with your attorney in advance.
  3. The Federal Prevailing wage issued as your prevailing wage determination may be lower than the minimum wage in various states and counties. It is important to ensure the wage offered meets all wage requirements.
  4. Employers must be able to demonstrate the “ability to pay” the wage offered for the position. This starts from the date of the filing of the ETA-9089 form with DOL. It is good practice to review financials in advance. The DOL generally does not adjudicate this issue, and this determination is up to the USCIS. However, there have been audits requesting ability to pay documentation. Employers must either have assets or income greater than or equal to the proffered wage or be paying that to the beneficiary.
  5. Family relationships of all kinds between employer and beneficiary must be disclosed on the ETA-9089 form. DOL indicates that a familial relationship includes “any relationship established by blood, marriage or adoption, even if distant.” It continues by including “cousins of all degrees, aunts, uncles, grandparents and grandchildren” and even “relationships established through marriage, such as in-laws and stepfamilies” in the definition. Be ready for an audit if this is the case.
  6. Employers must ensure that the recruitment reflects the actual minimum requirements for the job. Requirements must be clear and quantifiable. Vague experience requirements could be the reason for a denial from DOL.
  7. Experience gained at the sponsoring employer may be used in certain scenarios to meet the minimum requirements of the job offered. Generally, the beneficiary may not use the experience gained at the sponsoring employer to meet the minimum requirements unless the experience was gained in an occupation with job duties that are more than 50% different from what the job offered.
  8. Make sure that the ETA-9089 reflects that the beneficiary meets all special requirements. There may not be a specific field for this information on the form, but make 100% sure that the DOL knows the beneficiary meets all requirements, such as professional licensure, hospital privileges, board certifications, etc.
  9. Double-check the onsite posting for all the correct information. The DOL quietly changed a key address required on the posting with a single Federal Register notice in 2021. Always check with the current DOL requirements.
  10. Employers must engage in good-faith recruitment. This includes considering all applicants in a timely manner and not allowing the beneficiary to be involved in any way with the recruitment process.

The DOL regulations creating the PERM labor certification process were final in March 2005. The world has changed significantly since then, but this system is what many beneficiaries must get through to successfully get their green cards. Current labor shortages have caused significant processing time delays, and that, coupled with the retrogression of visa numbers, has made the green card process stretch into years for many. The good news is that green cards via PERM are still possible and highly probable, with an experienced immigration attorney leading the way.

Headshot of woman with long dark hair

Elizabeth L.A. Garvish founded Garvish Immigration Law Group, LLC in 2011 with the mission to be the "Happiest Law Firm in America." In June 2022, Elizabeth was recognized as a Legal Innovator at the Daily Report’s Georgia Legal Awards and as one of Georgia's Titan 100. She is ranked in the 2023 Chambers USA Guide and was included in the 2023 LawDragon Inaugural 100 Leading Immigration Lawyers Guide. Elizabeth is a frequent speaker and presenter on U.S. immigration topics around the world. She is an active member of the American Immigration Lawyers Association (AILA), serving on various national committees as well as serving as the Past Chair of the Georgia-Alabama Chapter of AILA.

Headshot of woman with long dark hair in pink top

Alexandra Sarrine practices employment and family-based immigration law as Senior Counsel at Garvish Immigration Law Group.

Headline Image: iStock/akindo

Related Articles

An Employer’s Guidebook to Responding to Online Harassment

by Belle Harris and Brent Siler

Navigating online defamation against your business requires strategic responses. Two employment lawyers guide how to leverage contracts, understand social media limitations and the risks of legal action.

Image of person pushing giant phone with mouth and words coming out


The Long, Short, Thick and Thin of It

by Avrohom Gefen

“Appearance discrimination” based on employees’ height and weight is the latest hot-button issue in employment law. Here’s a guide to avoid discrimination.

Woman stands in front of mirror holding suit jacket


The Wagner Law Group: ERISA and Employment Law

by The Wagner Law Group

For more than 25 years, The Wagner Law Group has combined the personalized attention and reasonable rates of small law firms with the specialization and sophistication of large firms to tackle all of their clients' ERISA and Employment Law needs.

Female Attorney in a Gray Suit Presenting to a Female Judge


Gust Rosenfeld P.L.C. on Protecting Arizona Employers

by Justin Smulison

Gust Rosenfeld attorney Robert D. Haws discusses emerging trends in employment litigation and how the firm’s Employment and Education Law practice groups have protected clients in and out of Arizona’s courtrooms.

Gust Rosenfeld P.L.C. on Protecting Arizona Employers


Businesses Must Prepare for the New Department of Labor Independent Contractor Rule

by Kirby Black and Steven T. Clark

Two employment law lawyers explain how a new DOL rule making it more likely workers will be classified as employees, rather than independent contractors, has caused legal challenges and prompted businesses to reassess worker status and policies.

Block with outline of person slightly out of place from other blocks

Changes to the New Form I-9 and Verification Process

by Nia Doaks

Best Lawyers: Ones to Watch® in America honoree Nia Doaks of Constangy, Brooks, Smith & Prophete offers guidance in navigating new Form I-9 changes.

I-9 Immigration Form with pen

Noncompete Extinct

by Mark W. Bakker

The Federal Trade Commission has proposed a blanket ban on noncompete agreements that could radicalize post-termination protections afforded to employers.

Dark figure walking up red staircase to open door

Withstand the Ban

by Jeffrey A. Calabrese and Kirby Black

With the recent Federal Trade Commission’s announcement proposing a complete ban on noncompete agreements, we offer advice to companies moving forward.

Figure out of frame signing a non-descript contract

Brace for Impact

by Ray Young, Jr. and Scott Hetrick

The 2021 independent contractor rule might have major impacts on employers and upend compliance issues, especially as the DOL’s definition of an independent contractor is about to change.

Silhouetted figure holding the hands of a clock

Employers Are Budding Heads on Marijuana in the Workplace

by M. Tae Phillips and Melanie C. Cormier

As employment lawyers, we receive many questions from employers navigating marijuana legalization. Below, we answer the top three most asked questions.

Statue of Liberty holding a marijuana joint

Rights and Wrongs

by Shannon Pierce

Antidiscrimination enforcement agencies, both federal and state, are likely going to be highly active in the next five years. Are Nevada businesses ready?

Faces of women overlapping in multi-color


What Will a Car Accident Lawyer Actually Do for You?

by Nick Norden

Getting into a car accident is stressful. Keep reading for insight into how a car accident attorney can help you recover the compensation you need and deserve.

Steering wheel with deployed airbag


How Much Time Do I Have to File a Personal Injury Lawsuit in Kentucky?

by Jay Vaughn

If you or a loved one has suffered due to someone else's actions, depending on the state, personal injury claims could still be a viable legal option.

Hand holding a gavel strikes down bench with people in backdrop

Pribanic Secures Milestone Verdict in Rural PA County

by Justin Smulison

Ten-time honoree Victor H. Pribanic secured one of 2023’s most notable verdicts in a Pennsylvania county that historically has not been empathic to plaintiffs.

Lawyer sitting at desk with notepad and laptop

"Lawyer of the Year"

Lawyer in suit posing for headshot

Harris J. Chernow

Franchise Law

Philadelphia, PA


Legal Distinction on Display: 15th Edition of The Best Lawyers in France™

by Best Lawyers

The industry’s best lawyers and firms working in France are revealed in the newly released, comprehensive the 15th Edition of The Best Lawyers in France™.

French flag in front of country's outline

Trending Articles

Presenting The Best Lawyers in Australia™ 2025

by Best Lawyers

Best Lawyers is proud to present The Best Lawyers in Australia for 2025, marking the 17th consecutive year of Best Lawyers awards in Australia.

Australia flag over outline of country

Legal Distinction on Display: 15th Edition of The Best Lawyers in France™

by Best Lawyers

The industry’s best lawyers and firms working in France are revealed in the newly released, comprehensive the 15th Edition of The Best Lawyers in France™.

French flag in front of country's outline

How To Find A Pro Bono Lawyer

by Best Lawyers

Best Lawyers dives into the vital role pro bono lawyers play in ensuring access to justice for all and the transformative impact they have on communities.

Hands joined around a table with phone, paper, pen and glasses

How Palworld Is Testing the Limits of Nintendo’s Legal Power

by Gregory Sirico

Many are calling the new game Palworld “Pokémon GO with guns,” noting the games striking similarities. Experts speculate how Nintendo could take legal action.

Animated figures with guns stand on top of creatures

Announcing The Best Lawyers in New Zealand™ 2025 Awards

by Best Lawyers

Best Lawyers is announcing the 16th edition of The Best Lawyers in New Zealand for 2025, including individual Best Lawyers and "Lawyer of the Year" awards.

New Zealand flag over image of country outline

Announcing the 13th Edition of Best Lawyers Rankings in the United Kingdom

by Best Lawyers

Best Lawyers is proud to announce the newest edition of legal rankings in the United Kingdom, marking the 13th consecutive edition of awards in the country.

British flag in front of country's outline

Announcing The Best Lawyers in Japan™ 2025

by Best Lawyers

For a milestone 15th edition, Best Lawyers is proud to announce The Best Lawyers in Japan.

Japan flag over outline of country

The Best Lawyers in Singapore™ 2025 Edition

by Best Lawyers

For 2025, Best Lawyers presents the most esteemed awards for lawyers and law firms in Singapore.

Singapore flag over outline of country

Announcing the 16th Edition of the Best Lawyers in Germany Rankings

by Best Lawyers

Best Lawyers announces the 16th edition of The Best Lawyers in Germany™, featuring a unique set of rankings that highlights Germany's top legal talent.

German flag in front of country's outline

How Much Is a Lawyer Consultation Fee?

by Best Lawyers

Best Lawyers breaks down the key differences between consultation and retainer fees when hiring an attorney, a crucial first step in the legal process.

Client consulting with lawyer wearing a suit

Celebrating Excellence in Law: 11th Edition of Best Lawyers in Italy™

by Best Lawyers

Best Lawyers announces the 11th edition of The Best Lawyers in Italy™, which features an elite list of awards showcasing Italy's current legal talent.

Italian flag in front of country's outline

Presenting the 2024 Best Lawyers Employment and Workers’ Compensation Legal Guide

by Best Lawyers

The 2024 Best Lawyers Employment and Workers' Compensation Legal Guide provides exclusive access to all Best Lawyers awards in related practice areas. Read below and explore the legal guide.

Illustration of several men and women in shades of orange and teal

Things to Do Before a Car Accident Happens to You

by Ellie Shaffer

In a car accident, certain things are beyond the point of no return, while some are well within an individual's control. Here's how to stay legally prepared.

Car dashcam recording street ahead

Combating Nuclear Verdicts: Empirically Supported Strategies to Deflate the Effects of Anchoring Bias

by Sloan L. Abernathy

Sometimes a verdict can be the difference between amicability and nuclear level developments. But what is anchoring bias and how can strategy combat this?

Lawyer speaking in courtroom with crowd and judge in the foreground

The Push and Pitfalls of New York’s Attempt to Expand Wrongful Death Recovery

by Elizabeth M. Midgley and V. Christopher Potenza

The New York State Legislature recently went about updating certain wrongful death provisions and how they can be carried out in the future. Here's the latest.

Red tape blocking off a section of street

Attacked From All Sides: What Is Happening in the World of Restrictive Covenants?

by Christine Bestor Townsend

One employment lawyer explains how companies can navigate challenges of federal and state governmental scrutiny on restrictive covenant agreements.

Illustration of two men pulling on string with blue door between them

This article is a part of the Best Lawyers Employment Law Legal Guide. Read thought leadership from recognized lawyers and navigate a list of all honorees in the associated practice areas.

Explore the Legal Guide