Reflecting the era of online recruitment, procedures are being revised, still in the announcement phase.
The Department of Labor has placed a Notice of Proposed Rulemaking (RIN, Federal Regulatory Identification Number 1205-AC29) on the Spring 2026 Federal Regulatory Agenda, which aims to overhaul the entire PERM labor certification process. PERM, the first step for employment-based green cards, is a Department of Labor review process that allows employers to sponsor foreign employees for permanent residency only after proving they could not find U.S. applicants. The proposed regulation is titled “Modernizing Labor Market Tests and Strengthening Protections for U.S. Workers.” This marks the first revision in about 20 years, considering that the current PERM regulations have remained unchanged since their inception in 2004. However, this stage is merely a notice of proposed changes, not specific regulatory text. Most employment-based green cards under EB-2 and EB-3 categories — EB-2 requires a bachelor's degree or higher or special skills, while EB-3 is for skilled and unskilled workers — must pass this PERM labor certification before proceeding to the next step, the immigrant petition (I-140). Changes to the first step's regulations will inevitably impact the entire subsequent process. The regulatory agenda is a semiannual process where federal agencies publicly disclose their planned regulatory actions for the upcoming period, and this PERM reform proposal has been newly added to the list. While being listed does not guarantee immediate regulatory changes, it can be interpreted as a signal that the Department of Labor is actively pursuing the matter.
What is the announcement of change?
“The current PERM regulations still base the fundamental requirements on 2004 recruitment practices, such as two Sunday newspaper advertisements and posting at the state workforce agency.”
For a long time, the immigration practice field has consistently pointed out that regulations have remained unchanged despite the fact that recruitment methods have long shifted to company career sites, online job boards, and professional networking platforms. The Department of Labor has announced that it will officially incorporate online recruitment methods as a formal recruitment requirement in this regulatory agenda and will revise the criteria for assessing employers“ recruitment efforts. It also suggested a direction to strengthen compliance requirements to ensure non-discriminatory recruitment and hiring practices. The entire recruitment process, which follows wage determination (the process by which the Department of Labor pre-determines the minimum wage an employer must pay), is being considered for revision. However, this is merely a plan listed on the regulatory agenda, and the Notice of Proposed Rulemaking (NPRM), which contains the actual text of the regulation, has not yet been published in the Federal Register as of the writing of this column. The Department of Labor aims to publish it in July 2026, but the target date is often delayed beyond the actual publication. Once published, the specific text of the regulation and the period for public comment will be finalized. The only fact that can be definitively stated at this stage is that ”the Department of Labor has announced a direction for reform." The scope of reform included in the regulatory agenda is expected to cover not only the types of media for job advertisements but also how employers should document and submit recruitment results, and in what format they should record the reasons for reviewing and rejecting applicants' resumes. Currently, employers can organize and keep records of their review results for each applicant in their own format, but it is suggested that a standardized form set by the Department of Labor or an online submission process may be introduced after the reform. If the newspaper advertising requirements are actually abolished or relaxed, employers may benefit from reduced advertising costs and time. On the other hand, specific details such as how to prove the authenticity and duration of online recruitment records, and whether recruitment through social media or recruitment agencies will be included in the scope of recognition, can only be known once the text of the regulation is released.
◆ Stricter screening for employers with recent layoffs
“The Ministry of Labor has stated in its regulatory agenda that it will strengthen its review of applications from employers who have recently conducted layoffs.”
This itself is not an entirely new concept. Current regulations already require employers to notify displaced U.S. workers separately if there were layoffs within 6 months prior to the application in the same or similar occupations as the sponsored positions. This reorganization is known to have tightened these requirements and mandates employers to retain layoff records for longer and in more detail. While possibilities like extending the look-back period beyond 6 months, including layoffs from other branches or departments of the same company, or linking to mass layoff notification data are being discussed, the specific design has not yet been revealed. This could pose a significant burden, particularly for employers in various industries, including the information technology sector, which has undergone workforce restructuring in recent years. Employers who have already experienced layoffs would be well-advised to start organizing internal records now, including the timing of layoffs, the affected job categories, and whether re-employment notifications were provided. For employers with multiple departments or branches, consolidating information on which job categories were laid off and when, at the HR team level, could save the effort of hastily gathering documents. It is too early to predict the scope and retroactive application of specific requirements until the original draft of the regulations is released. Another point of interest is how the Department of Labor will assess cases where the newly planned sponsored occupations differ in name but overlap in job responsibilities with recently laid-off occupations. Looking at the directionality, this can be seen as an extension of the trend where the Department of Labor has been raising the bar for scrutiny in its employment-based immigration regulations over the past few years, citing the protection of U.S. workers as the reason – such as the strengthened guidance on discretionary adjudication for permanent residency implemented in May of this year and the push to increase prevailing wage standards.
◆ Background of processing delays
“According to the processing status page operated by the Foreign Labor Certification Division under the Department of Labor, as of July 9, 2026, the PERM review stage is processing applications filed in July 2025.”
This means that it takes approximately one year from application until the start of the review process. The same page stated that the average processing time for the review stage as of June 2026 was 403 days. This figure represents cases that undergo the normal process without an audit; if a case is selected for an audit, an additional review stage is added, extending the duration beyond this. It typically takes several months for the wage determination stage as well, so the total time from application to final approval is generally longer than the figure for the review stage alone. If an audit is conducted by the Ministry of Labor based on random selection or red flags, it can, not infrequently, lead to waiting several more months just for the results to be communicated. Although not explicitly stated by the Ministry of Labor, immigration lawyers suggest that the burden of verifying documentation for outdated recruitment procedures is one cause of the delays. There is also a discussion that modernizing the process could help alleviate delays in the long run, as online recruitment records may be easier to verify electronically than newspaper clippings or printed bulletin board notices. However, this is currently only an expectation set by the Ministry of Labor, not a confirmed effect, and it is also possible that processing may be delayed due to an adaptation period in the early stages of implementing new regulations. This is because it will take time for both Ministry of Labor officials and employers to become familiar with the new forms and new review criteria.
The Big Picture with Wage Regulations
“In practical employment immigration matters, there are suggestions that this procedural reform should be viewed in conjunction with the Department of Labor's prevailing wage reform plan (RIN 1205-AC30) announced in March of this year.”
The revision plan was to raise the minimum wage that employment-based immigration sponsors must pay, and the public comment period for it closed on May 26th. The procedural reform announced this time is a separate track that deals with recruitment methods and compliance reviews, not wage standards. Once both tracks are finalized as regulations, the overall cost and time required for employment-based permanent residency sponsorship will change together. The wage rule determines how much employers must pay, and the procedural rule determines how to prove recruitment. The fact that the two axes are moving simultaneously at the same time is why both employees and employers preparing for employment-based immigration should view ongoing cases and new cases separately. Since both revisions are not yet final regulations but are in the public notice stage or before notice, there is no reason to rush to file a case or postpone it before a confirmed effective date is announced. Rather, considering the typical procedures for both regulations from notice to final implementation — posting of articles, a public comment period of about 60 days, review, posting of final regulations, and implementation with a grace period — it is common for it to take at least several months to nearly a year for actual implementation.
Closing remarks
At this point, there are three practical aspects to check. First, PERM cases that have already been filed or are in progress will continue to be subject to the current regulations. Nothing will change until the proposed rule is published in the Federal Register, undergoes a public comment period, is finalized, and an effective date is set. Second, employers preparing to file new PERM applications should proceed with the recruitment process according to current regulations without delay, but it is safer to meticulously organize and retain documentation of recruitment advertisements and applicant handling. Third, employers who have recently conducted or are planning layoffs should check in advance whether the layoff positions overlap with the positions they intend to sponsor and the time gap between the layoff date and the intended application date. For professionals currently preparing for employment-based immigration, it is realistic to keep in mind that employers may postpone or hesitate to proceed with sponsorship due to these procedural changes. Until the regulations are actually changed, it is appropriate for both employers and their attorneys to continue preparations based on the current procedures, and there is no need to change the direction of ongoing cases based solely on news at the pre-announcement stage. We will provide further guidance after checking the original proposed rule once it is published in the Federal Register.
Disclaimer: This column is for general information purposes only and is not legal advice for your specific case. You should always consult with an attorney who specializes in immigration law for your individual case.
Law Offices of Jin Dong Cho
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