Under federal law, the sponsoring employer bears exclusive responsibility for all costs associated with the PERM labor certification process. This is not a matter of employer preference or negotiation — it is a legal requirement, and violations can result in denial or revocation of an approved certification, audits or supervised recruitment for future filings, fines, debarment from the PERM program for a period of time, and potential findings of fraud or misrepresentation if willful misconduct is involved, etc.
Federal regulations are unambiguous: the employee (or any third party on their behalf) cannot pay, reimburse, or contribute in any way to PERM-related costs. If the DOL finds evidence of employee payment (or any third party on their behalf), it will deny or revoke the certification and may impose audits or supervised recruitment for future filings, fines, debarment from the PERM program for a period of time, and issue potential findings of fraud or misrepresentation.
What Costs Are Covered by This Rule?
The employer-pays requirement applies to:
- All attorney fees related to the labor certification step
- All advertising and recruitment costs incurred during the labor market test
- Any fees associated with the prevailing wage determination process
The DOL may request documentation — including cancelled checks or invoices — to verify that the employer, and not the employee, paid for these items. Employers should maintain clear, organized payment records throughout the process.
What Costs Can the Employee Pay?
The employer-pays rule applies specifically to Step One — the PERM labor certification. Costs associated with subsequent steps, including the I-140 immigrant petition (Step Two) and the permanent residence application (Step Three), are not subject to the same restriction.
As a practical matter, many employers choose to cover all costs through green card approval as part of their immigration benefits package. Others cover only the mandatory employer-paid portion. Either approach is legally permissible, provided the labor certification costs are never passed on to the employee.
Can the Employee Reimburse the Employer Later?
No. The prohibition applies to direct and indirect reimbursement. An arrangement in which the employer pays the costs upfront and the employee repays them later — through wage deductions, loan agreements, or any other mechanism — violates DOL regulations. Such arrangements, if discovered, can result in revocation of the labor certification and denial of the green card petition.
What About the I-140 and Permanent Residence Filing Fees?
Government filing fees for Form I-140 and Form I-485 are not subject to the employer-pays rule and may be paid by either party. Attorney fees for Steps Two and Three are similarly not restricted. Employers should clarify in advance which costs they will cover beyond the mandatory PERM stage, both to manage expectations and to structure any employment agreements appropriately.
Why Does This Rule Exist?
The restriction is rooted in the purpose of the PERM process itself. Because PERM is a labor market test designed to protect U.S. workers, the DOL requires that the recruitment process be genuinely employer-initiated and employer-funded. If employees bore the cost, it could create incentives that distort the integrity of the process.
Polatsek, Boheme & Wilkowski advises employers on PERM compliance from the first prevailing wage request through final green card approval. For an overview of employer obligations, see PERM Labor Certification at polatsek.law.
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