DOL PERM Suspension: Why Green Card Paths Remain Open for Tech Professionals 

The Department of Labor’s (DOL) suspension of PERM processing for Microsoft, Adobe, and six large IT firms has left many immigrant professionals in technology and related fields asking whether employment-based green card paths are still available. 

The suspension is narrow; it applies only to Permanent Electronic Review Management (PERM) program applications filed by the employers named in the announcement and does not close the door to other green card pathways for tech professionals. Petitions decided by U.S. Citizenship and Immigration Services (USCIS) alone, including the EB-2 National Interest Waiver (NIW) and EB-1A, remain open to qualified professionals at any employer. Nothing in the publicly reported action suggests a general suspension of PERM for employers outside the named group. 

What the DOL PERM Suspension Changes for Pending and Unfiled Cases 

The PERM labor certification is typically the first major step in the employment-based green card process for cases that require a labor certification. Through PERM, the employer tests the U.S. labor market and, if approved, confirms that there are no able, willing, qualified, and available U.S. workers for the offered position.  

The date the employer files the PERM labor certification generally becomes the employee’s priority date once the PERM is certified by the U.S. Department of Labor and the Form I-140 immigrant petition is approved by USCIS. That priority date establishes the employee’s place in line for an employment-based green card. The employee may move forward with the green card process only when the priority date is current under the applicable category and country of chargeability in the Visa Bulletin, based on the relevant month’s Final Action Dates chart or, if permitted by USCIS for that month, the Dates for Filing chart. 

For workers whose PERM applications were filed before the suspension, the immediate effect is a pause, not a denial. Those applications remain pending but will not be processed until the suspension is lifted.  

If DOL later certifies the application, the original filing date should still serve as the priority date. The PERM regulation also addresses what happens if investigations end without a finding. Under 20 CFR 656.31(d), when charges are withdrawn or do not result in a finding of fraud or willful misrepresentation, DOL decides each pending application on its merits. 

A pending PERM case can also continue to matter for H-1B workers. H-1B status has a six-year maximum, and time spent in H-1B status with any employer counts toward it. The American Competitiveness in the Twenty-First Century Act (AC21) allows extensions beyond six years in two situations. Under section 104(c), a worker with an approved Form I-140 whose priority date is not yet current may extend in three-year increments. Under section 106(a), an H-1B worker whose labor certification or I-140 immigrant petition has been pending for at least 365 days may extend one year at a time, as USCIS guidance on H-1B stays beyond six years explains. 

For workers with a suspended PERM case, the one-year option is the relevant one. Their applications cannot reach the I-140 stage until DOL resumes processing, so the three-year extension is not available to them through PERM for now. A suspended application should still count as pending, however, so once it has been pending for 365 days, the worker may be eligible for one-year extensions. 

Workers at the named companies who have not yet filed PERM face a different situation. New applications involving those employers cannot move forward for now. For these workers, we believe the right question is not whether to wait, but whether another path fits their profile. 

Workers whose cases are already past the PERM stage are in a different position. This includes workers whose PERM was certified before the suspension, who have an approved I-140, or who have a pending I-485. The suspension, as announced, concerns DOL’s processing of PERM applications, not USCIS adjudication of later filings. However, DOL can revoke certifications obtained through fraud or willful misrepresentation under 20 CFR 656.32. These workers should confirm their status with counsel rather than assume they are unaffected. 

EB-2 NIW and EB-1A Remain Open 

The reason for this is structural: PERM is a Department of Labor (DOL) process built to test the U.S. labor market through recruitment. EB-2 NIW and EB-1A petitions go only through USCIS and involve no comparable recruitment test. Several other employment-based categories also bypass DOL entirely.  

The PERM suspension regulation governs labor certification applications only and does not, by its terms, reach petitions that never pass through DOL. The categories below fall in that group: 

• EB-2 NIW: The National Interest Waiver waives both the job offer and the PERM labor certification requirements for professionals with an advanced degree or exceptional ability whose work provides benefits to the United States. An employer can file it, or the professional can file it on their own behalf. 

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• EB-1A: The extraordinary ability category is for professionals with sustained national or international acclaim in their field. Professionals can file it on their own behalf, without an employer. 

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• EB-1B: The outstanding professors and researchers employment-based, first-preference visa category requires an employer, but no PERM labor certification. 

• EB-1C: The multinational manager or executive employment-based, first-preference visa category also requires an employer, but no PERM labor certification. It often follows L-1A status. 

Officials have not announced any comparable pause for these categories, and nothing in the announcement suggests one. Unless that changes, we anticipate USCIS will continue applying its existing evidentiary standards and discretion when reviewing EB-2 NIW and EB-1A petitions. For EB-2 NIW and EB-1A petitioners, the standard is the same as it was before the October 8 announcement: well-documented petitions are still the deciding factor. 

Eligibility for each category depends on the individual’s background. Not every professional affected by the suspension will qualify for an alternative, and we recommend talking to an experienced immigration attorney about whether these alternative pathways would be a good fit. 

Does a Pending PERM Case Affect an EB-2 NIW Filing? 

Many workers with a pending or suspended PERM case worry that starting a second green card case could harm the first. It does not. No regulation prevents a worker from filing for two different types of immigrant visas. 

A worker may pursue an EB-2 NIW or EB-1A petition while a PERM application remains pending. The two cases move on separate tracks, and filing one does not withdraw or replace the other. 

Some workers may prefer to wait for DOL to resume processing rather than open a second case. For workers with ample time left in their status, waiting can be a reasonable choice. For workers with limited time left, or those who prefer to have a backup option to reduce uncertainty, a parallel petition can reduce reliance on a single process that is suspended with no announced end date. 

What to Expect from the PERM Suspension 

According to the regulations, an initial suspension may last up to 180 days. After that, DOL may resume processing some or all applications, or extend the suspension until investigations or court proceedings conclude. We encourage affected workers to assume this will be an extended suspension rather than a quick resumption, given that federal investigations are currently active. 

Suspensions of this kind are not new for individual employers, but in our experience, a suspension covering several large technology companies at once is unusual. We do not expect the action, on its own, to signal changes to USCIS-adjudicated categories. 

Considerations by Affected Group 

Affected Group	Situation	General considerations
Workers with a pending PERM at a named company	Application on hold; no announced end date	Original filing date should still serve as the priority date if certified; AC21 106(a) H-1B extensions may still be available after 365 days pending
Workers at a named company with no PERM filed	New applications cannot proceed for now	Assess eligibility for EB-2 NIW, EB-1A, EB-1B, or EB-1C
H-1B workers approaching the six-year limit	Extension options depend on what has been filed and when	Review status timelines early and consider a parallel petition
Professionals at other employers	Not named in the announcement	PERM and USCIS-adjudicated categories remain available; no change announced to their cases

Attorney Perspective: How PERM Actually Works for Employers 

I have handled PERM cases from start to finish: the notice of job opportunity, the prevailing wage request, recruitment, audit responses, and the I-140 petitions that follow. That experience shapes how I read this suspension. 

Public discussion of the suspension has sometimes described PERM recruitment as a formality, a single ad placed where no one will see it. The process is considerably more demanding than that. For professional positions, employers must: 

• Place a job order with the state workforce agency for 30 days 

• Run two Sunday print advertisements in a newspaper of general circulation in the area where the job is located 

• Complete three additional recruitment steps from a list set by DOL, such as job fairs, the employer’s website, or job search sites 

• Post a notice of the filing at the worksite for 10 consecutive business days 

The employer must then consider every U.S. applicant and document why any applicant was not qualified for the role. 

DOL also has strong oversight tools that work case by case. It can audit any PERM application, requesting the full recruitment report, and the audit can request business necessity, which is the employer’s justification for a job requirement that is not normal for the occupation or that appears unduly restrictive. It can require supervised recruitment, in which DOL directs and reviews the employer’s recruitment. It can revoke certifications. And it can debar employers, attorneys, or agents who violate the rules from the program for up to three years. 

The regulation also gives DOL broad discretion to suspend processing while an investigation is underway. Because these investigations are ongoing, I can’t comment on their substance. My concern is with the scope of the response. 

In my view, DOL’s case-by-case tools are better suited to the problem than a suspension covering entire employers. Investigations should run their course, and anyone who broke the rules should face consequences. A case-by-case approach can enforce compliance while letting legitimate applications move forward. 

For workers worried about this news, one point is worth keeping in mind: PERM is not the only route to a green card. EB-2 NIW and EB-1A petitions skip labor certification entirely and go directly to USCIS, so a PERM suspension like this one does not, by its terms, reach them. For professionals who qualify, these routes offer a path that does not depend on any single employer’s standing with DOL. 

Keep the Green Card Path in View 

The suspension changes the PERM process for a defined group of workers. It does not stop anyone from building a career in the United States or pursuing a green card through other employers or other categories. If you are affected, talk to an attorney about which path fits your situation. 

At Colombo & Hurd, we prepare EB-2 NIW and EB-1A petitions for professionals and employers across the technology sector. To discuss how the PERM suspension affects your situation and which options fit your background, get a free evaluation.