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PERM and Employer Sponsorship Attorney

Prevailing wage, recruitment, ETA-9089 filings, I-140 petitions in EB-2 and EB-3, adjustment of status and temporary worker visas for sponsoring employers.

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PERM and Employer Sponsorship Attorney: Green Card Overview

Employer sponsorship is how a U.S. company helps an employee it wants to keep obtain permanent residence, usually through PERM labor certification followed by an I-140 immigrant petition in the EB-2 or EB-3 category. Capitol Law Partners handles the full sequence for employers and employees, from the prevailing wage request to the green card interview, and represents employers who need seasonal, religious, athletic or trainee workers on temporary visas. Our business immigration overview maps the full practice.

Our services in this area

  • PERM labor certification: prevailing wage determinations, recruitment design, the ETA-9089 filing, audits and supervised recruitment.
  • I-140 petitions in EB-2 and the EB-3 category for skilled workers, professionals and other workers.
  • EB-2 National Interest Waiver: the self-petition alternative when no employer sponsor or labor certification is available.
  • Adjustment of status and consular processing: Form I-485, work and travel permits, AC21 portability and immigrant visa interviews.
  • H-1B visa programs that keep the employee working while the green card is pending, including extensions beyond six years.
  • H-2A visa: temporary or seasonal agricultural workers, with Department of Labor certification and housing obligations.
  • H-2B visa: non-agricultural workers for seasonal, peak-load, intermittent or one-time needs, subject to an annual cap.
  • R-1 visa: ministers and religious workers employed by non-profit religious organizations.
  • P-1 visa: internationally recognized athletes, teams and entertainment groups.
  • H-3 visa: trainees in a structured program not available in their home country.

The PERM labor certification process

Prevailing wage determination

The employer first requests a prevailing wage determination from the Department of Labor for the position, its minimum requirements and the worksite. The employer must offer at least that wage once the green card is approved, so the job description is drafted carefully first.

Recruitment

The employer then tests the U.S. labor market. For professional positions this means a job order with the state workforce agency, two Sunday newspaper advertisements and three additional steps from a regulatory list. Every U.S. applicant must be reviewed and may be rejected only for lawful, job-related reasons recorded in a recruitment report. Recruitment must fall within a set window before filing, followed by a waiting period.

The ETA-9089 filing

Once recruitment ends without a qualified, willing and available U.S. worker, the employer files Form ETA-9089 with the Department of Labor and must pay the costs of the labor certification, including attorney fees and advertising. The filing date becomes the employee's priority date.

Audits and supervised recruitment

The Department of Labor may audit a case and request the recruitment file, or order supervised recruitment under its direction. Both are manageable when the file was built correctly, which is why we keep every advertisement, resume and rejection note organized.

The I-140 petition in EB-2 and EB-3

With the certified labor certification, the employer files Form I-140 with USCIS within its validity period. EB-2 covers positions requiring an advanced degree, or a bachelor's degree plus five years of progressive experience, and workers of exceptional ability. EB-3 covers skilled workers with at least two years of training or experience, professionals with a bachelor's degree, and other workers. The category follows the job requirements in the PERM, not the employee's credentials alone. Employees whose work has national importance can instead self-petition through the EB-2 NIW without an employer or labor certification.

Priority dates and the Visa Bulletin

Immigrant visas are limited each year by category and country of birth. The State Department's monthly Visa Bulletin publishes cutoff dates, and an employee can file the final step only when their priority date is earlier than the published date for their category and country. Applicants born in India and China face the longest waits. An approved I-140 generally preserves the priority date for a future petition unless revoked for fraud, misrepresentation or material error.

Adjustment of status and AC21 portability

When the priority date is current, an employee in the United States files Form I-485, with an employment authorization document and advance parole, together with the I-140 or afterward; employees abroad complete consular processing. Under the American Competitiveness in the Twenty-first Century Act, an employee whose I-485 has been pending for at least 180 days may change employers or positions in the same or a similar occupational classification, confirmed on Form I-485 Supplement J. AC21 also allows H-1B extensions beyond the sixth year while the PERM or I-140 is pending or approved.

Employer obligations and ability to pay

The sponsoring employer must make a bona fide, full-time, permanent job offer, pay the labor certification costs, retain the recruitment file for five years and intend to employ the worker in the certified position once permanent residence is granted. It must also show its ability to pay the offered wage from the priority date onward, through tax returns, annual reports or audited financial statements, or by showing it already pays that wage. After a merger or acquisition, we evaluate whether the certification survives under the successor-in-interest rules.

Process overview and what to bring

  1. Planning. We confirm the category, the job requirements and the timeline against the employee's status and the Visa Bulletin.
  2. Prevailing wage and recruitment. Timing depends on Department of Labor processing and the recruitment steps required.
  3. ETA-9089 and I-140. Filing with the Department of Labor, then USCIS, with premium processing available for most I-140 categories.
  4. Green card stage. Form I-485 or consular processing when the priority date is current.

Employers bring the job description, minimum requirements, organizational chart, formation documents and latest tax return or financial statements; employees bring degrees, transcripts, credential evaluations, experience letters, passport, I-94 record and prior approval notices.

Why Capitol Law Partners

Cagatay Ersoy, founder and managing partner of Capitol Law Partners, is a graduate of Columbia Law School who advises startups and employers on workforce immigration, including PERM, EB-2, EB-3, H-1B and EB-2 NIW matters, alongside business and trademark law. Our attorneys and staff work in English, Turkish, Spanish, Portuguese and French. We represent employers and employees from our offices in Washington, DC, Northern Virginia, New York and Minneapolis, as part of a broader immigration law and business and corporate law practice.

Learn more about employer sponsorship

Start sponsoring your employee

Send us the job description and the employee's resume and status, and we will tell you which category fits, how long it should take and what it requires of the company. Schedule a consultation or call +1 (202) 440-2272.

Frequently Asked Questions

What is PERM labor certification?
PERM is the Department of Labor process through which an employer shows that there are no qualified, willing and available U.S. workers for a permanent position and that hiring a foreign worker will not harm the wages and working conditions of U.S. workers. It involves a prevailing wage determination, a prescribed recruitment campaign and the ETA-9089 filing. A certified PERM is the basis for most EB-2 and EB-3 immigrant petitions.
How long does the employer-sponsored green card process take?
The PERM stage alone involves prevailing wage processing, a recruitment campaign and Department of Labor review of the ETA-9089, and the agency publishes its current processing times. The I-140 can be expedited with premium processing. The final stage depends on the Visa Bulletin: it can follow quickly for employees whose priority date is current, or take years for nationals of heavily backlogged countries. We give a realistic estimate at consultation.
Who pays for the PERM and green card process?
Department of Labor regulations require the employer to pay all costs of the labor certification, including attorney fees and recruitment expenses, and prohibit shifting those costs to the employee. The I-140 and I-485 stages are not covered by that rule, so employers and employees may agree on who pays for them, subject to any state law or company policy. We set out the allocation clearly in the engagement letter.
What is the difference between EB-2 and EB-3?
EB-2 covers positions that require an advanced degree, or a bachelor's degree plus five years of progressive experience, and workers of exceptional ability. EB-3 covers skilled workers with at least two years of training or experience, professionals with a bachelor's degree, and other workers. The category is determined by the minimum requirements of the job as certified in the PERM, not simply by what the employee holds, and the Visa Bulletin waits differ between the two.
Can my employee change jobs during the green card process?
Before the I-485 has been pending for 180 days, a job change generally means starting the PERM again with the new employer, although the priority date from an approved I-140 can usually be kept. Once the I-485 has been pending for 180 days or more, AC21 allows the employee to move to a new employer or position in the same or a similar occupation, confirmed on Form I-485 Supplement J, without losing the pending application.
What does ability to pay mean for the sponsoring employer?
USCIS requires the employer to show that it could pay the offered wage from the priority date until the employee becomes a permanent resident. The standard evidence is federal tax returns, annual reports or audited financial statements showing net income or net current assets at least equal to the wage, or payroll records showing the employee is already paid that wage. Companies with many sponsored employees must show they can pay all of them.
Can an employee stay on H-1B beyond six years while waiting?
Yes. Under AC21, an H-1B worker may extend in one-year increments if a PERM application or I-140 petition was filed at least 365 days before the six-year limit is reached and remains pending or approved, and in three-year increments if an I-140 is approved but the priority date is not current. These extensions let employees from backlogged countries keep working lawfully while they wait for a visa number.
Do H-2A and H-2B workers need PERM labor certification?
No. PERM applies to permanent positions. Seasonal and temporary needs are handled through a separate temporary labor certification from the Department of Labor, followed by a Form I-129 petition with USCIS. H-2A covers agricultural work and carries housing and transportation obligations; H-2B covers non-agricultural seasonal, peak-load, intermittent or one-time needs and is subject to an annual cap. Both require recruitment of U.S. workers before the petition is filed.