What Could the Proposed 2026 PERM Changes Mean for EB-2 and EB-3 Cases?

The PERM labor certification process is the first step in most EB-2 and EB-3 employment-based green card cases. Although the process itself has remained largely unchanged for many years, the U.S. Department of Labor (DOL) has proposed significant updates that could affect future PERM filings.

The proposed regulations have not taken effect. However, employers and foreign workers should understand what has been proposed, monitor future developments, and continue following the current PERM requirements.

How the PERM Process Works

Before an employer can sponsor a foreign worker for an EB-2 or EB-3 employment-based green card, the employer must obtain a PERM labor certification from the DOL.

The purpose of PERM is to protect the U.S. labor market. Employers must demonstrate that there are no qualified, willing, and able U.S. workers for the position before sponsoring a foreign worker for permanent residence.

The PERM process generally includes three steps:

1. Prevailing Wage Determination

The employer submits the job details to the DOL, which determines the minimum wage that must be offered for the position.

2. Recruitment

The employer must complete a recruitment campaign that complies with DOL regulations. If qualified U.S. workers apply and meet the minimum job requirements, the employer generally cannot continue the PERM process for that position.

3. Filing Form ETA-9089

If recruitment does not identify any qualified U.S. workers, the employer files Form ETA-9089 with the DOL. Once approved, the employer may move forward with the immigrant petition.

What Has the DOL Proposed?

The DOL's proposal is intended to modernize PERM and update regulations that have remained largely unchanged since 2004. Today's labor market looks very different than it did two decades ago, with online recruiting, remote work, and hybrid positions now common across many industries.

The proposal is also intended to strengthen protections for U.S. workers by ensuring that employers conduct genuine recruitment before sponsoring a foreign worker.

Modernizing the Recruitment Process

The proposal would update recruitment and recordkeeping requirements to better reflect current hiring practices. If finalized, employers may need to provide more detailed documentation showing that they made a genuine effort to recruit qualified U.S. workers.

The proposal also seeks to discourage job requirements that unnecessarily limit the pool of qualified U.S. applicants. Employers should ensure that minimum qualifications are based on legitimate business needs and accurately reflect the position being offered.

Proposed Changes to Prevailing Wages

The DOL has also proposed changes to how prevailing wages are calculated for PERM and certain temporary employment programs. If finalized, employers may be required to offer higher wages for many sponsored positions.

For some employers, particularly small and mid-sized businesses, higher prevailing wages could increase the overall cost of sponsoring foreign workers. At this stage, however, these changes remain proposals and are not yet in effect.

Additional Documentation and Compliance

The proposal would expand certain documentation and recordkeeping requirements during the recruitment process. Employers may need to retain additional evidence demonstrating how applicants were evaluated and why U.S. workers were not selected.

The DOL's stated goal is to improve transparency and strengthen the integrity of the PERM process. While employers already have documentation obligations under current regulations, the proposed rule would increase those requirements if it becomes final.

What Has Not Changed?

Although these proposals have received significant attention, the current PERM regulations remain in effect.

Employers should continue following the existing recruitment procedures, prevailing wage process, and filing requirements. Foreign workers should also understand that the proposed regulations may change before a final rule is issued.

Processing times also remain lengthy under the current system. Many PERM applications continue to take well over a year to process, and audited cases often require additional time.

Why Planning Ahead Still Matters

Even though the proposed regulations are not yet effective, employers considering sponsorship should stay informed about future developments. Depending on when any final rule becomes effective, changes could affect the timing, cost, and documentation required for future PERM filings.

For foreign workers, early planning is equally important. If you are working in H-1B, L-1, or F-1 OPT status, discussing your long-term immigration strategy before deadlines become urgent can help preserve your options. In some cases, alternatives such as an EB-2 National Interest Waiver (NIW) or an EB-1 petition may also be worth exploring.

Questions About PERM or Employment-Based Green Cards?

The PERM process is one of the most technical stages of an employment-based green card case, and proposed regulatory changes can make long-term planning more challenging. Whether you are an employer considering sponsorship or a foreign worker pursuing an EB-2 or EB-3 green card, experienced legal guidance can help you understand your options and prepare for changes as they occur.

If you have questions about the PERM process or employment-based immigration, contact Tran Flores Law at (512) 894-9984. Our immigration attorney can evaluate your case, explain your options under current law, and help you develop a strategy that supports your long-term immigration goals.