When employers begin the PERM labor certification process, one of the most important concepts to understand is the definition of a U.S. worker. The success of a PERM application often depends on whether the employer properly evaluates U.S. worker applicants during the required PERM recruitment process.

The U.S. Department of Labor (DOL) established the PERM program to protect the employment opportunities and working conditions of U.S. workers. Before an employer can sponsor a foreign national employee for permanent residence, the employer must demonstrate that there are no able, willing, qualified, and available U.S. workers for the offered position.

Understanding the PERM U.S. worker definition and the employer’s recruitment obligations is essential for avoiding costly delays or denials.

What Is a U.S. Worker Under PERM?

The official U.S. worker definition for PERM is found in 20 CFR § 656. Under the regulations, a U.S. worker is an individual who is:

• A U.S. citizen;
• A U.S. national;
• A lawful permanent resident (green card holder);
• An individual granted temporary resident status under specific provisions of the Immigration and Nationality Act;
• A refugee admitted under U.S. immigration law; or
• An individual granted asylum.

Applicants who meet one of these categories are considered U.S. workers for PERM purposes and must be properly evaluated during recruitment.

Why Does PERM Require Employers to Consider U.S. Workers?

The purpose of the PERM labor certification process is to ensure that hiring a foreign national worker will not adversely affect the job opportunities, wages, or working conditions of U.S. workers.

To satisfy this requirement, employers must conduct good faith PERM recruitment to test the U.S. labor market. Only after completing the required recruitment and determining that there are no able, willing, qualified, and available U.S. workers may the employer file a PERM labor certification application.

This requirement makes the proper evaluation of U.S. worker applicants one of the most critical steps in the PERM process.

Can an Employer Reject a U.S. Worker During PERM Recruitment?

Yes, but only for lawful, job-related reasons.

Employers may reject a U.S. worker applicant if the individual:

• Does not meet the minimum requirements listed for the position;
• Is unwilling to accept the position or its terms; or
• Is unavailable for employment.

If an applicant lacks certain qualifications, the employer must also determine whether those deficiencies could reasonably be overcome through on-the-job training. If reasonable training would allow the applicant to perform the job, rejecting the applicant solely because they lack that experience may not be appropriate under the PERM regulations.

Every recruitment decision should be based on objective, job-related criteria and carefully documented.

Why Good Faith Recruitment Matters

The Department of Labor closely reviews whether employers conducted good faith recruitment during the PERM process.

Employers must genuinely consider every U.S. worker applicant and document the lawful reasons for any rejection. If the DOL determines that even one qualified U.S. worker was improperly rejected, the PERM labor certification application may be denied.

Because PERM recruitment is heavily regulated, employers should maintain complete recruitment records and ensure that interview notes and rejection reasons are consistent with the minimum job requirements listed on the PERM application.

What If the Applicant Is Not a U.S. Worker?

Not every applicant is considered a U.S. worker under the PERM regulations.

If an applicant does not fall within one of the categories identified in 20 CFR § 656, the employer is generally not required to consider that individual during the PERM recruitment process, even if the applicant appears minimally qualified.

This distinction reflects the purpose of the PERM program—to protect qualified U.S. workers while allowing employers to sponsor foreign nationals only when no qualified U.S. workers are available for the position.

Key Takeaways for Employers

Understanding the PERM U.S. worker definition is essential for any employer sponsoring a foreign national through the PERM labor certification process. Employers should remember to:

• Understand who qualifies as a U.S. worker under the PERM regulations.
• Conduct all PERM recruitment in good faith.
• Evaluate every U.S. worker applicant using consistent, job-related criteria.
• Maintain detailed documentation supporting every recruitment decision.
• Ensure that any rejection of a U.S. worker is lawful and supported by the position’s minimum requirements.

Failure to properly evaluate a single qualified U.S. worker can jeopardize an entire PERM case. Careful planning, thorough documentation, and compliance with the Department of Labor’s PERM recruitment requirements help employers navigate the process successfully while protecting the integrity of their labor certification application.

For over 25 years, Reddy Neumann Brown PC has focused solely on U.S. employment-based immigration, and works with employers to establish best practices when navigating the PERM labor certification process. If you are in need of a U.S. work visa or permanent residency, speak with one of our immigration lawyers. Please contact us online, call our Houston business immigration office directly at 713-953-7787 or schedule a consultation.

By: Jessica Palarca

Jessica Palarca is an attorney in Reddy & Neumann’s PERM Labor Certification Department where she assists clients in the beginning stages of the green card process.