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The employment-based green card process is evolving. In 2026, employers sponsoring foreign nationals through PERM-based green cards are navigating more complexity than ever before, whether it be because of government regulations, what it means to prove a good-faith test of the U.S. labor market, or other real-world recruitment challenges.
For those responsible for hiring, whether in HR, talent acquisition, or legal, understanding how to align a company's recruitment practices with the Department of Labor's (DOL) expectations can mean the difference between a certified PERM and a costly denial or audit.
Below we'll walk through the most significant PERM recruitment developments, and what best practices can be implemented now to stay compliant and confident.
Rising application volumes and resume overload
One of the most noticeable changes in PERM recruitment today is the rise of AI-assisted job applications.
Many applicants now use AI to scrape job postings and apply to dozens of roles that match loosely with their resume, or even leverage AI to customize their resume to align with the job posting that they are applying for. The Firm has also seen reports of individuals including cover letters explaining that they are a qualified U.S. worker for a role and asserting that a PERM should not be certified for the position.
As a result, employers often receive applications from individuals who may meet none or only some of the qualifications on paper, and/or could have little to no genuine interest in the role or company.
This dynamic raises an important compliance question: How should employers respond to these applications? The answer: Just like they would with any applicant.
If someone applies and appears to meet or could meet the minimum qualifications, offer them a phone screen or initial interview. If they don't respond, decline, or fail to appear, the employer can appropriately document the outcome as a self-withdrawal or voluntary nonparticipation. This is consistent with how they would treat any applicant in their standard recruitment process, and that consistency is critical in the event of a DOL audit.
If the applicant opts out, declines the invitation, or fails to follow through, that's a legitimate basis for disqualification, because they selected themselves out of the process, not because of anything related to immigration status or assumptions.
PERM recruitment should mirror normal hiring practices
One of the most important legal principles in PERM compliance is that recruitment must be conducted in good faith, especially with the increased scrutiny across all immigration petitions from the current administration. This includes how a job is advertised, how applicants are evaluated, and what hiring channels are used.
That means the PERM recruitment process shouldn't look materially different from how the company would normally advertise and recruit for comparable roles just because a foreign national may ultimately be sponsored.
This includes advertising job postings on other websites and job boards outside of the minimum locations required by the DOL. In practice, employers should be able to show a good faith effort to have PERM recruitment fit into their broader talent acquisition strategy, rather than appearing as a one-off or compliance-only exercise.
This is particularly important if the Department of Justice (DOJ) reviews the recruitment process for signs of discrimination. DOJ will want to see that PERM ads weren't narrower, shorter, or less visible than usual; that the interview process didn't skip steps; and that U.S. workers had a real chance to be considered for the role.
Consistency is often the strongest evidence of good faith. When PERM recruitment mirrors everyday hiring, it becomes much easier to defend if questioned.
New risks around "Kellogg" language and ETA-9089
Garfinkel Immigration Law Firm has become aware of a growing number of PERM denials that stem from a technical section of the ETA-9089 form, Section G.4, which deals with alternate requirements and the so-called "Kellogg Doctrine."
PERM regulations allow employers to list alternate experience requirements, but only if they are substantially equivalent to the primary job requirements. More pertinently, if a foreign worker is already employed by the company and qualifies only through these alternate requirements, the employer must affirmatively state that it is willing to accept any suitable combination of education, training and experience.
Under the current administration, DOL is taking a strict interpretation of the Kellogg language for alternate requirements, which is reflected on the new ETA-9089 form, where this section is now split into two separate questions. Employers could previously check "No" when asked if they accept suitable combinations, which now results in a denial, even when the case is otherwise strong. This is a sudden and unannounced change. Fortunately, the new ETA-9089 form breaks G.4 into two separate questions that allows employers to better address alternate requirements.
Employers should:
- Carefully review this section with immigration counsel
- Ensure the alternate requirements are not more restrictive than the primary ones
- Understand how DOL is applying and interpreting these rules in 2026
Employers should contact experienced immigration counsel to learn more about the ETA-9089 form and the DOL's new interpretation of the "Kellogg" language.
Aligning strategy with compliance
PERM recruitment in 2026 presents a new set of operational and legal challenges. Evolving technologies, such as AI-generated tools, have changed how candidates interact with job postings, while increased scrutiny from both the Department of Labor and Department of Justice requires employers to ensure they are carefully evaluating and meticulously documenting every step of the process.
Consistency remains one of the most persuasive indicators of good faith, whether in how jobs are advertised, how applicants are evaluated or how interviews are conducted. When PERM roles are integrated into existing recruitment strategies rather than treated as exceptions, the likelihood of successful certification increases significantly.
In addition, recent trends, such as the Department of Labor's strict interpretation of the Kellogg doctrine and the technical demands of the ETA-9089, underscore the importance of careful legal review before submission. Alternate experience requirements must be clearly and affirmatively stated, and every element of the labor market test should be supported by detailed records and decisions.
Moving forward, organizations that prioritize transparency, consistency, and full documentation throughout the PERM recruitment lifecycle will be better positioned to withstand audits, respond to RFIs, and successfully sponsor foreign national employees.
As the regulatory landscape continues to evolve, staying ahead of these developments is essential. Proactive planning, collaboration between HR and legal teams, and early engagement with immigration counsel will remain key pillars of successful PERM strategy.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
