One of the most common misunderstandings in the PERM labor certification process is who is legally in control, the employer or the foreign national employee. This issue often arises when an employee wants to direct recruitment, control ETA Form 9089, or influence how the job opportunity is defined.
Under U.S. Department of Labor (DOL) regulations, the answer is clear: the employer controls the PERM process.
The employer is the PERM applicant
A PERM labor certification is not owned by the employee and is not a personal immigration benefit. The employer is the applicant and bears full legal responsibility for the filing. Because of this, the employer, not the employee, must control all substantive aspects of the PERM process.
What the employer controls
By law, the employer determines and manages:
- The job opportunity and minimum requirements
- The recruitment strategy, timing, and documentation
- All advertising and recruitment steps
- The preparation, review, and filing of ETA Form 9089
- Whether to proceed with, pause, withdraw, or abandon the PERM
While the foreign national employee may provide background information or documentation when requested, the employee cannot direct recruitment, control Form 9089, or submit the labor certification.
Why employee control is not permitted
The PERM process exists to test the U.S. labor market in good faith. Allowing an employee to control recruitment or dictate job requirements undermines that purpose and exposes the employer to serious compliance risks, including:
- DOL audits or supervised recruitment
- Findings of bad-faith recruitment
- Denial or revocation of the labor certification
For this reason, the DOL requires that the PERM remain employer-driven, even when the sponsored worker is a current employee.
Limits on employer control
Although the employer controls the PERM process, that control is not unlimited. Employers must:
- Conduct recruitment in good faith
- Accurately represent the job opportunity
- Avoid tailoring requirements to exclude U.S. workers
- Pay all PERM-related costs, including attorney fees and advertising
The PERM process may not be used to retaliate against or improperly pressure an employee.
Can an employee take over a PERM?
No. A foreign national employee cannot take control of a PERM labor certification, cannot continue the process independently, and cannot transfer the PERM to another employer. Even after approval, a PERM labor certification is employer- and position-specific.
Key takeaway for employers
If an employee requests control over ETA Form 9089 or the recruitment process, this creates compliance risk for the employer. Clear communication and proper legal guidance are essential.
Bottom line: The employer controls the PERM labor certification, and maintaining that control is required by law.
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Citations
- 20 C.F.R. §§ 656.10, 656.12, 656.17, 656.30
- ETA Form 9089 (Employer Declaration)
- Matter of American Specialty Pharmacy, 2016-PER-00041 (BALCA)
- U.S. Department of Labor, PERM Program FAQs
- USCIS Policy Manual, Volume 6, Part E
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JEREMY L. RICHARDS is the founding partner of Richards and Jurusik and has dedicated his career to U.S. immigration law, with a specialized focus on assisting Canadian and Mexican citizens under the United States-Mexico-Canada Agreement (USMCA) to work and live in the United States. (Full Bio)
