PERM Labor Certification: Getting the Position Right
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For employers sponsoring a green card in the EB-2 or EB-3 category, the PERM labor certification is usually the longest stage of the case. Most of the problems that surface months later, including audits, denials and restarts, are built in on the first day, when the position is defined. Our approach starts there: we build the job around what the employer actually needs, and we check every requirement against the rules before anything is filed.
Why the position decides the case
Everything in a PERM case flows from the job definition. The occupation classification (SOC code) drives the prevailing wage. The requirements shape the recruitment ads. The ads, the Form ETA-9089 and the recruitment report must all describe the same job. When the position is written as a copy of the sponsored employee’s résumé, or when it borrows requirements the employer has never actually needed, the mismatch shows up in review, and review is where audits and denials start.
That is why we begin every PERM matter with the employer, not the form. What work needs to be done? What does the team look like? What would the employer genuinely require from any candidate, U.S. or foreign? The answers become the position, and the position becomes the case.
Common audit triggers we design around
| Issue | Rule | How it is handled |
|---|---|---|
| Requirements above the normal level for the occupation | 20 CFR 656.17(h)(1) | Align education and experience with the O*NET Job Zone, or document a genuine business necessity |
| Foreign language requirement (for example, Turkish) | 20 CFR 656.17(h)(2) | Include it only with business-necessity evidence, such as the clients or markets the role actually serves |
| Combination of occupations | 20 CFR 656.17(h)(3) | Show the employer normally employs that combination, or document business necessity |
| Experience gained with the same employer | 20 CFR 656.17(i) | Confirm the actual minimum requirements and whether the prior role was substantially different |
| Recent layoffs in the occupation | 20 CFR 656.17(k) | Identify layoffs in the prior six months and notify and consider the laid-off workers |
| Inconsistencies across documents | Ads, ETA-9089, recruitment report | Use one controlling job description for every document |
How we build a PERM case
- 1. Understand the need. Duties, tools, reporting lines and the minimum the employer would accept from any candidate.
- 2. Choose the occupation. Select the SOC code that fits the real duties and check the Job Zone and SVP before setting requirements.
- 3. Prevailing wage. Request the prevailing wage determination on Form ETA-9141 at the level the requirements support.
- 4. Recruitment. Run the required recruitment under 20 CFR 656.17(e), including the State Workforce Agency job order, two Sunday newspaper ads, the notice of filing and, for professional occupations, additional steps.
- 5. Audit-ready file. Keep the recruitment report, résumés, ads and business-necessity evidence organized as if an audit letter were certain.
- 6. File and follow through. File Form ETA-9089, and after certification file the I-140 within the 180-day validity period.
An audit usually does not come from nowhere. It comes from a job description that does not fit the occupation, the wage or the ads.
What an audit actually costs
Under 20 CFR 656.20, an audited employer must produce the documentation DOL requests within 30 days of the audit letter. If it does not, the application is denied, and a substantial failure to provide documentation can lead DOL to require supervised recruitment in the employer’s future filings for up to two years. Even a successful response adds another round of review to a process that already takes most of a year, and for the sponsored employee that can mean a later priority date and more time in temporary status.
Do not tailor the requirements to the sponsored employee. Requirements must reflect what the employer actually needs and would accept from a U.S. worker, and experience the employee gained in the same job with the same employer generally cannot be required.
Frequently asked questions
Can a lawyer guarantee that a PERM case will not be audited?
No. The Department of Labor can select applications for audit at random. Careful drafting reduces the risk of an audit triggered by the content of the application, but no one can rule out a random audit.
How long does PERM take in 2026?
The Department of Labor reported an average of 336 calendar days for PERM analyst review in August 2026, and prevailing wage determinations and recruitment come before that. Times change monthly; check flag.dol.gov.
What happens if a PERM application is audited?
The employer has 30 days from the audit letter to submit the requested documents. If it does not respond, the application is denied, and DOL may require supervised recruitment in future filings for up to two years.
Can a PERM job require Turkish or another foreign language?
Only if the employer can document business necessity, for example that the role serves Turkish-speaking clients or markets. Without that evidence, a language requirement is a common reason for an audit or denial.
What employers should do now
- List the real duties of the role and the minimum qualifications you would accept from any applicant.
- Check whether any similar positions were affected by layoffs in the past six months.
- Gather evidence for any special requirement, such as a language, before recruitment begins.
- Have the job description reviewed before the prevailing wage request is filed.
Ozek Law Firm, LLC · Tolga Ozek, Attorney at Law
4500 East West Highway, Suite 150, Bethesda, MD 20814
+1 (202) 854-8545 · info@ozeklaw.com · ozeklaw.com/contact
Tolga Ozek is the founder of Ozek Law Firm, LLC in Bethesda, Maryland. His practice covers business and immigration law, including investor and intracompany-transfer visas, employment-based immigration, and adjustment of status. The firm advises clients in English, Turkish and Spanish.
We review the job, the occupation, the wage level and the recruitment plan together, in English, Turkish or Spanish.
This page is for general information only and does not constitute legal advice. Attorney Advertising. Processing times are as reported by the U.S. Department of Labor at flag.dol.gov as of Sept. 22, 2026, and change monthly. DOL may select any application for audit, and no attorney can guarantee that a case will not be audited or will be certified.
Ozek Law Firm, LLC · 4500 East West Highway, Suite 150, Bethesda, MD 20814 · +1 (202) 854-8545 · info@ozeklaw.com · www.ozeklaw.com
Admitted in Maryland, New York and Washington, D.C.; federal immigration practice throughout the United States. Consultations in English, Turkish, Spanish and Swedish; interpreters for other languages.
