What Is a Labor Market Test
A labor market test is a recruitment process that employers must conduct to demonstrate that no qualified U.S. workers are available for a specific job opening before sponsoring a foreign worker for an employment-based visa. The Department of Labor (DOL) requires this testing as part of the PERM labor certification process, which is the first step toward obtaining an employment-based green card through adjustment of status or consular processing.
When you're pursuing an EB-2 or EB-3 visa category, your employer cannot simply file an I-140 petition without proving they've made genuine efforts to recruit U.S. workers first. The labor market test serves as evidence of those efforts and typically takes 2 to 3 months to complete before PERM application submission on Form ETA 9089.
How the Labor Market Test Works
The testing process involves several specific recruitment steps that DOL reviews closely:
- Job Order Placement: Your employer must post the position with your state's workforce agency for at least 30 consecutive days. This is a mandatory first step and creates a documented record of recruitment efforts.
- Newspaper Advertisement: A Sunday or Monday job advertisement in a newspaper of general circulation in the job's geographic area is required. Print ads demonstrate broad public visibility, though most employers now use major publications available in multiple formats.
- Three Additional Recruitment Steps: Depending on the occupation and your employer's industry, three additional recruitment methods are required. These may include online job boards like Indeed or LinkedIn, industry-specific websites, on-site postings, staffing agencies, trade publications, professional organizations, or radio/television advertising. The specific methods depend on what's customary for your occupation.
- Recruitment Results Documentation: Your employer must document all applicants who applied, whether they were U.S. workers or foreign nationals, and record the reasons any candidates were rejected. This documentation becomes critical evidence reviewed during PERM processing.
The labor market test must be completed within 180 days before PERM application filing. If recruitment takes place earlier, USCIS may question whether the labor market conditions have changed materially by the time your green card application is processed.
Connection to Your Priority Date and Green Card Timeline
Completing the labor market test successfully delays your priority date by several months, but it's a required stage with no alternative path for most employment-based categories. Once PERM is approved, your I-140 petition establishes your priority date. If you're currently in valid visa status, your employer can file for adjustment of status concurrently with the I-140, allowing you to work and travel on advance parole while your green card application is processed. If you're outside the U.S., consular processing becomes your pathway to the visa interview and final green card issuance.
Common Reasons DOL Rejects Labor Market Tests
- Excessive Job Requirements: Requiring experience beyond what's typical for the position or educational credentials higher than the actual job duties warrant. DOL scrutinizes positions requiring 10+ years of experience in entry-level roles.
- Unreasonably High Wages: Advertising the position at significantly below prevailing wage standards established by the DOL, which discourages qualified U.S. applicants from applying.
- Inadequate Documentation: Missing job postings, incomplete applicant tracking records, or failure to demonstrate all five recruitment methods occurred as stated.
- Timing Gaps: More than 180 days between completing recruitment and filing PERM, which makes the recruitment results outdated.
Common Questions
- Can I conduct my own labor market test, or must my employer do it? Your employer must conduct and document the labor market test. You cannot perform recruitment on your employer's behalf, as DOL requires employer documentation and signatures on Form ETA 9089 attesting to good faith recruitment efforts.
- What happens if U.S. workers apply during my labor market test? Your employer must interview all qualified U.S. applicants and document legitimate, non-discriminatory reasons for any rejections. If rejections appear arbitrary or the employer dismisses candidates for subjective reasons while your foreign credentials are accepted, DOL may deny the PERM application as lacking good faith recruitment.
- How does the labor market test differ from PERM audit recruitment? The initial labor market test happens before PERM filing and establishes your recruitment record. If DOL selects your case for audit after PERM filing, the agency conducts additional investigations, including contacting applicants who were rejected, to verify your employer's documentation was accurate and the recruitment genuinely tested labor market conditions.
Related Concepts
Understanding the labor market test becomes clearer when you also understand these connected processes in the employment-based green card system: