EB-3 and New Recruitment Rules: Why It May Be Worth Starting the Process Now
Updated: 9 hours ago
The U.S. Department of Labor is preparing a major update to the PERM program, a required step in most EB-3 cases.
The anticipated changes are expected to affect recruitment — the process through which a U.S. employer tests the labor market to determine whether qualified U.S. workers are available for the position.
As of September 16, 2026, the new rules have not yet been published in final form and are not in effect. However, the Department of Labor has already identified the general areas it intends to address as part of the reform.
Below, we explain how the EB-3 process currently works, what may change, and why it may make sense to begin preparing early.
What Is EB-3?
EB-3 is an employment-based immigrant category that may allow a foreign national to obtain a green card through a permanent job offer from a U.S. employer.
There are three subcategories within EB-3:
In all three categories, the offered position must be permanent, rather than temporary or seasonal.
For most EB-3 cases, the process requires:
a permanent job offer;
a U.S. employer willing to sponsor the foreign worker;
an approved labor certification;
an approved Form I-140, Immigrant Petition for Alien Workers;
and availability of an immigrant visa under the Visa Bulletin.
There are exceptions. For example, certain Schedule A occupations are not subject to the standard PERM recruitment process.
How the EB-3 Process Works
1. The Employer Defines the Position
The employer determines the job title, duties, work location, and minimum education and experience requirements.
The requirements must be legitimate and consistent with the position. They generally cannot be artificially inflated or tailored solely to fit a particular foreign worker.
2. The Employer Obtains a Prevailing Wage Determination
The Department of Labor determines the prevailing wage — the required wage level for the particular occupation and geographic area.
The employer generally cannot offer the foreign worker less than the applicable prevailing wage.
3. Recruitment Is Conducted
Recruitment is designed to test whether qualified U.S. workers are available for the position.
For a professional occupation, the recruitment process generally requires:
a 30-day job order with the appropriate State Workforce Agency;
two advertisements in Sunday editions of an appropriate newspaper of general circulation;
and three additional recruitment steps.
Additional recruitment methods may include:
the employer’s website;
an online job search website;
job fairs;
private employment firms;
professional or trade organizations;
employee referral programs with incentives;
local or ethnic newspapers;
or radio or television advertisements.
For a nonprofessional occupation, the minimum recruitment requirements generally include:
a 30-day job order;
and two advertisements in Sunday editions of an appropriate newspaper.
Importantly, an EB-3 Skilled Worker position is not necessarily a professional occupation for PERM recruitment purposes.
The required recruitment steps depend on the position itself, not simply on the EB-3 subcategory.
4. The Employer Reviews Applicants
The employer must review applications from U.S. workers in good faith.
A U.S. applicant may be rejected only for a lawful, job-related reason based on the requirements of the position.
At the end of the recruitment process, the employer prepares a recruitment report and retains supporting documentation in case of an audit.
5. ETA Form 9089 Is Filed
After the recruitment process and applicable waiting periods have been completed, the employer files ETA Form 9089 with the Department of Labor.
The filing date generally becomes the worker’s priority date — the date used to determine the worker’s place in the immigrant visa queue.
The Department of Labor may:
certify the labor certification;
deny the application;
issue an audit;
or require supervised recruitment.
An approved PERM labor certification does not provide immigration status and does not, by itself, result in a green card.
6. The Employer Files Form I-140
After PERM certification, the employer files Form I-140 with USCIS.
As a general rule, the petition must be filed within 180 days of PERM certification.
USCIS reviews, among other things, whether:
the position qualifies under the requested EB-3 category;
the foreign worker meets the requirements of the position;
a permanent job offer exists;
and the employer has the ability to pay the offered wage.
Approval of Form I-140 establishes eligibility for the requested immigrant classification, but it does not itself grant permanent resident status.
7. The Worker Waits for Visa Availability
The number of employment-based immigrant visas available each year is limited by law.
As a result, even after PERM and Form I-140 are approved, a foreign worker may need to wait until an immigrant visa becomes available under the Visa Bulletin.
In September 2026, the following Final Action Dates applied to the general chargeability category:
Separate dates applied to China, India, and the Philippines.
The Visa Bulletin is updated monthly, and cutoff dates may move forward or retrogress.
8. Adjustment of Status or Consular Processing
Once the worker’s priority date permits the case to proceed, the worker may:
file Form I-485, Application to Register Permanent Residence or Adjust Status, if eligible and physically present in the United States;
or complete consular processing if applying for an immigrant visa outside the United States.
Permanent resident status is obtained only after Form I-485 is approved or, in a consular case, after the individual is admitted to the United States with an immigrant visa.
What Recruitment Changes Are Expected?
The Department of Labor has included a proposed rule titled:
“Modernizing the Labor Market Test and Improving Protections for U.S. Workers in the PERM Immigrant Visa Program” in the federal Unified Agenda.
DOL has indicated that the PERM regulations have not undergone a comprehensive update since 2004, even though recruiting technology and hiring practices have changed significantly during that time.
On September 14, 2026, DOL submitted the proposed rule to the Office of Information and Regulatory Affairs (OIRA) for review. The proposal is officially listed as a Proposed Rule, with the status Pending Review, and has been designated as economically significant. The text of the proposed rule has not yet been published.
OIRA review does not mean that a new rule has been adopted. After OIRA review is completed, DOL may publish a Notice of Proposed Rulemaking (NPRM). Only then will the specific proposed changes become public, and interested parties will have an opportunity to submit comments during the applicable comment period.
After reviewing public comments, DOL would then determine whether to issue a final rule and what the final version should contain.
This means that the new requirements are not currently in effect.
At this stage, it would be inaccurate to state that DOL has already eliminated newspaper advertising, required advertising on particular online platforms, or created a new mandatory start date for recruitment.
The exact requirements and any transition provisions will become known only after the relevant regulatory documents are published.
What Could Change?
Possible approaches being discussed within the immigration and employment-based sponsorship community include:
eliminating mandatory newspaper advertising;
using more modern recruiting channels, including social media;
eliminating outdated recruitment methods such as radio and television advertising;
requiring employers to post positions on their career pages;
accepting applications through an Applicant Tracking System (ATS);
and moving away from requiring applicants to submit résumés by traditional mail.
Importantly, these are predictions and proposals discussed by immigration practitioners, not officially announced provisions of the DOL rule.
Until the text of the proposed rule is published, it cannot be stated that DOL will actually adopt any of these requirements.
If withdrawn cases are excluded and only Certified and Denied cases are compared, approximately 97.59% were certified and approximately 2.41% were denied.
As of September 30, 2025, there were 157,669 PERM applications pending.
Importantly, these statistics cover the PERM program as a whole and are not limited to EB-3 cases.
What Does the I-140 Data Show for EB-3?
At the end of Fiscal Year 2025, USCIS reported 61,279 pending Form I-140 petitions in the EB-3 category.
“Pending” means that these petitions were still awaiting adjudication.
It does not mean that they were denied, and this figure should not be interpreted as an approval or denial rate for any individual case.
Why Is It Important to Start the EB-3 Process Now?
When reviewing the Visa Bulletin, it is important to look not only at the Final Action Dates, but also at the Dates for Filing.
If an applicant is in the United States and intends to apply for Adjustment of Status, the applicant’s priority date may become current under the Dates for Filing chart before it becomes current under the Final Action Dates chart.
If USCIS authorizes use of the Dates for Filing chart for employment-based adjustment applications in a particular month, the applicant may be able to file Form I-485 before the Final Action Date becomes current.
This is one reason why it may be beneficial to begin preparing an EB-3 case early.
The PERM process itself takes significant time, while Visa Bulletin movement can change from month to month.
The earlier the employer begins the process, the earlier the worker may ultimately secure a priority date and become eligible to move to later stages when visa availability permits.
The Priority Date Is Not Established Immediately
Before ETA Form 9089 can be filed, the employer must generally obtain a prevailing wage determination, complete recruitment, and satisfy the applicable waiting periods.
Only after the PERM application is filed does the case generally receive a priority date.
Starting later therefore generally means receiving a later place in the immigrant visa queue.
There Is Already a Visa Backlog in EB-3
In September 2026, the EB-3 Final Action Dates were not current even for applicants in the general chargeability category.
This means that approval of PERM and Form I-140 does not necessarily allow the worker to proceed immediately to the final green card stage.
Other Workers Have a Separate Queue
The Other Workers category is subject to a separate numerical limitation and has its own cutoff date in the Visa Bulletin.
As a result, waiting times for Other Workers may be longer than for EB-3 Skilled Workers and Professionals.
Recruitment Requirements May Change
DOL is preparing to reconsider recruitment requirements and other issues involving layoffs, nondiscrimination, compliance, and recordkeeping. Starting the process now allows an employer to evaluate a potential case under the rules currently in effect.
However, beginning now does not guarantee that the entire process will remain subject to the current rules. That will depend on the final language of any future regulation and its transition provisions.
Key Takeaways
EB-3 is not limited to professionals with university degrees.
The category includes:
Skilled Workers;
Professionals;
and Other Workers, often informally referred to as “Unskilled Workers.”
For most EB-3 cases, the process includes:
defining the position;
obtaining the prevailing wage;
conducting recruitment;
filing the PERM application;
filing Form I-140;
waiting for visa availability under the Visa Bulletin; and
completing Adjustment of Status or consular processing.
DOL is preparing a significant modernization of the PERM recruitment process, but the new rules are not yet in effect.
At the same time, preparing and completing the PERM process takes time, and a priority date is generally established only when ETA Form 9089 is filed.
For employers who genuinely intend to provide permanent sponsorship to a foreign worker, evaluating the case early and avoiding unnecessary delays may therefore be important.
⚖️ This information is provided for general informational purposes only and does not constitute legal advice.
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