Executive Summary
- PERM is a formal offer of a future job, not a description of what the employee is doing today. That distinction shapes everything HR does across the three milestones.
- The process takes 22-26 months just to clear the Department of Labor. HR needs to start the conversation with the employee in year two or three, not when the H-1B is running out.
- HR owns the work at every milestone: defining the job with the hiring manager, running and documenting the recruitment, and making sure the employee can prove they qualify.
- The most common problems at each stage are preventable. They show up because HR is not involved early enough, or because no one flagged what needed to be ready before the next step began.
Before the milestones start: two things HR needs to establish
PERM is a future job offer, not a snapshot of today
PERM is not asking DOL to approve the job the employee is currently doing. It is a formal offer of permanent employment in a specific role, at a specific location, with specific minimum qualifications. The employee keeps doing their current job while PERM is pending. But what is being filed is a commitment to employ them in that role permanently, once the green card is approved.
Why companies use the current role for PERM
For many employees, using the current role is the right call. The job already exists, it is a real and verifiable position, and for employees from most countries outside India and China, the green card timeline is roughly three years. An employee who is a senior software engineer today will very likely still be a senior software engineer when the green card comes through. The current role is not just a convenient starting point - it is genuinely the position being offered.
The problem is not using the current role. The problem is copying the current job description without reviewing the minimum requirements. A job description written for recruiting purposes often reflects the qualifications of the person who was hired, not the minimum qualifications needed to do the job. That distinction matters enormously to DOL.
Timing: start earlier than feels necessary
Here is what the timeline looks like in 2026:
End-to-end, the process from starting PERM to receiving a green card can take anywhere from three years to well over a decade, depending on the employee's country of birth. Employees born in India and China face multi-year to multi-decade backlogs at the final step due to per-country visa limits.
The right time to open the green card conversation with an H-1B employee is during their second or third year at the company. That gives HR time to make deliberate sponsorship decisions and gives the employee time to plan their life with accurate information - before urgency takes over on either side.
Milestone 1: Prevailing Wage Determination (PWD)
The PWD is where PERM officially begins. The company asks the Department of Labor to determine the minimum wage for the role based on the job duties and work location. HR cannot control how long DOL takes (currently about three months), but HR controls almost everything that goes into the request.
What HR needs to do at this stage
- Lock in the work location. Prevailing wage is calculated based on the city and state where the employee works, not where the company is headquartered. If the employee is remote, confirm their actual work location. A wrong location means a wrong wage determination, which can mean the company's current salary is non-compliant.
- Work with the hiring manager to define the job. The job title, duties, and minimum requirements filed in the PWD become the foundation of the entire PERM case. HR should sit down with the hiring manager and ask one specific question: "If we were hiring this role from scratch and this person did not already work here, what are the minimum qualifications we would accept?" That answer is usually different from what is in the existing job description.
- Review the minimum requirements carefully. A few things to check with the hiring manager before anything is filed:
- Requirements should reflect the genuine minimum for the role, not what the current employee has
- Experience the employee gained while working at your company cannot be listed as a minimum requirement
- Foreign language requirements need a documented business reason, not just a preference
- Once the job description is submitted, it cannot be changed
- Remove or reframe anything that is not quantifiable. This is one of the most common things HR misses when reviewing a job description with the hiring manager. Requirements like "strong leadership skills," "team player," or "excellent communication skills" sound reasonable, but they create a serious problem during recruitment. If a U.S. applicant applies and HR rejects them for lacking leadership skills, DOL will ask how that was measured. There is no objective standard, which means the rejection cannot be defended.
Every requirement in the job description needs to be something HR can evaluate with a yes or no. "Leadership skills" is not that. "3+ years of experience managing a team of at least four engineers" is. "Team player" is not. "Experience working in cross-functional Agile teams" is closer, though HR still needs to be able to verify it. Go through the job description with the hiring manager and flag anything that is a soft skill or a personality trait. Either remove it, or replace it with a specific, verifiable equivalent. If you cannot define how you would measure it during candidate review, DOL will not accept it as a basis for rejecting a U.S. applicant. - Check that the current salary meets or exceeds the wage DOL is likely to determine. Your immigration provider can give a preliminary estimate before the formal determination comes back. If there is a gap between the current salary and the expected prevailing wage, the company needs to commit to bridging it before proceeding. Discovering this gap after filing creates complications.
- Start the employment verification conversation with the employee now. The employee needs to prove they personally meet the minimum requirements listed in the job description. The time to start collecting that documentation is at the beginning of the process, not at the end. More on this below.
What can go wrong at this stage
The most common problem is a job description written around what the employee has rather than what the role genuinely requires. The second most common problem is discovering a salary gap after the PWD comes back. Both are avoidable if HR and the hiring manager have the right conversation before anything is filed.
Milestone 2: PERM Recruitment
Once the PWD is approved, the company runs a formal recruitment process to demonstrate that no qualified U.S. worker is available for the position. HR owns and manages this entire process. It is not the immigration attorney's job to run it.
The recruitment period is a minimum of 60 days: 30 days for ads to run, plus a mandatory 30-day waiting period before the PERM application can be filed.
Required recruitment steps
- Post the job with the State Workforce Agency for 30 days
- Run two Sunday newspaper advertisements in a major regional publication
- Post a 10-consecutive-day notice at the worksite
- Complete three additional recruitment activities from the DOL-approved list: job fairs, campus recruiting, LinkedIn postings, radio or TV ads, and others qualify
What HR needs to track for each applicant
Every applicant who comes through must be reviewed and a disposition recorded. This documentation is what HR uses to defend the filing if DOL audits the case.
For each applicant, document:
- Where and when they applied
- Whether they met the minimum qualifications in the job description
- If they did not meet the minimum requirements: the specific reason, tied directly to the job description (missing degree, insufficient years of experience in a required area, missing a required certification)
- If they did meet the minimum requirements: why the company did not proceed
The reason for rejecting an applicant must be grounded in the minimum qualifications listed in the job description. Rejecting someone because the hiring manager prefers the sponsored employee, or for reasons that are not in the job posting, creates audit exposure. This is why the job description needs to be finalized before recruitment begins, not adjusted during it.
What happens if a qualified U.S. worker applies
If a U.S. worker meets the minimum requirements listed in the job description and applies, the company cannot proceed with that PERM filing. There is no exception. The filing would need to be reconsidered: the role, the timing, or the job description would need to be revisited before starting again.
What can go wrong at this stage
Poor documentation is the most common problem. HR teams run the recruitment correctly but do not keep organized records of every applicant and every decision. The second most common problem is rejecting a U.S. applicant for a reason that is not in the job description. Both create audit risk that is difficult to resolve after the fact.
Milestone 3: Filing the PERM (ETA Form 9089)
Once the recruitment period is complete and the waiting period has passed, the company files ETA Form 9089 with DOL. This is the formal PERM application. The date it is filed becomes the employee's priority date, which determines their place in the green card queue.
DOL is currently taking approximately 17 months (501 days as of April 2026) to review standard applications. Audit review takes longer.
What HR needs to confirm before filing
- All recruitment documentation is complete and organized. Every applicant, every disposition, every posting date and location. If DOL audits the case, this is the file HR hands over.
- The employee's employment verification letters are in hand. This is the step HR teams most commonly leave too late.
The sponsored employee needs to prove they personally meet the minimum requirements in the job description. If the PERM requires five years of experience in a specific area, the employee needs employment verification letters from prior employers confirming they held roles that account for that experience. The letters need to include the job title, dates of employment, and a description of duties.
Common problems to check for before filing:
- Past employers who are slow to respond or have closed down
- Freelance or self-employment periods that are harder to document with a standard letter
- Experience from employers in other countries, which may require translated documentation
- Overlapping roles or gaps that are difficult to account for cleanly
- If any of these apply, flag them to the immigration provider before filing. Discovering a documentation gap after DOL requests evidence is much harder to resolve than addressing it in advance.
- The job description in Form 9089 matches the PWD and the recruitment ads exactly. Inconsistencies between these three documents are a common audit trigger. HR should review all three side by side before the application is submitted.
- The employee's current immigration status has enough runway. Filing PERM does not extend H-1B status. Make sure the employee has enough time on their current status to get through the DOL review period without needing an extension that conflicts with the case timeline. Your immigration provider should flag this, but HR should ask the question directly.
What can go wrong at this stage
Missing or incomplete employment verification letters are the most common late-stage problem. The second most common issue is a mismatch between the job description in the application and what appeared in the recruitment ads. Both are avoidable with a pre-filing review.
Common questions HR teams ask about PERM
Does starting PERM mean we are committing to keeping this employee permanently?
The position must be a genuine, permanent, full-time role the company intends to fill. That said, employment relationships change. If an employee leaves or is terminated after PERM is filed but before the green card is approved, the process generally ends with the employment. Consult your immigration provider on how to handle specific situations as they arise.
What if a qualified U.S. worker applies during recruitment?
If a U.S. worker meets the minimum requirements in the job description and applies, the company cannot proceed with that PERM filing. The position, the job description, or the timing would need to be revisited before starting again. This is not an edge case to manage around. It is the purpose of the recruitment requirement.
Can we use the employee's existing job description?
It needs to be reviewed before use. Working job descriptions often reflect the qualifications of the person who was hired, not the minimum qualifications needed to perform the role. Using them without review is one of the most common PERM audit triggers.
What if the employee cannot get a verification letter from a past employer?
Flag it to your immigration provider immediately. There are alternative forms of documentation that can sometimes substitute, but they need to be evaluated and planned for in advance. This is not a problem to discover after DOL requests evidence.
How WayLit helps
PERM involves years of coordination across DOL, USCIS, the hiring manager, and the employee. WayLit's practitioners work directly with HR from the start: building the job description process with the hiring manager, managing recruitment documentation, tracking the filing timeline, and making sure the employee has what they need before it becomes a problem.
Because WayLit works as an extension of your HR team, the immigration expertise is in your workflow from day one, not brought in after something has already gone wrong.
This article is for informational purposes only and does not constitute legal advice. Immigration law is complex, PERM timelines change frequently, and individual outcomes depend on each employee's specific circumstances. Consult qualified immigration counsel before making decisions about green card sponsorship.
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