Have you received a PERM denial? Wondering why your case was rejected without even receiving an audit? A PERM denial without an audit may seem like a devastating outcome after working tirelessly to submit all the required documentation and paying the accompanying attorney fees.
It’s a reality for many individuals who file PERM applications. In FY 2025, of 148,227 PERM applications, 3,404 were denied, 2.3% of applications. Additionally, 6,730 were withdrawn, 4.5%. Importantly, a denial is not always the end of the journey. In this post, we’ll explore PERM denial reasons, available options after a denial, ways to refile, and more.
PERM Denial Reasons
There are several reasons you may have received a PERM denial in the first place. Some of the most common PERM mistakes that employers make include:
Errors on the ETA Form 9089
Employers often fail to review all of the information submitted online through the DOL’s portal, and as a result, end up submitting the form with errors. This becomes a problem because the only way to correct these errors is to completely withdraw the application and refile it. As you can imagine, this is a very lengthy and bothersome setback.
The information on the ETA 9089 must match the information on the Job Order, Notice of Filing, and all job ads. Inconsistent information raises red flags with the DOL and may cause a PERM denial without audit.
VisaNation Example:
Employment Inc. placed a job order for an IT specialist that requires two years of experience and a bachelor’s degree in computer science and documented it on the ETA 9089. If the company also placed a job ad in a newspaper stating that the position requires a master’s degree in computer science and three years of experience, the DOL may outright reject the PERM on account of inconsistent information.
Not adhering to the advertising guidelines
The PERM process has very strict guidelines when it comes to recruitment and advertising. One of those requirements outlines timeframes for publishing ads in newspapers. The Department of Labor will deny submitted ETA 9089 forms if your newspaper ad was not published on at least two Sundays.
Because the job recruitment steps are strict and oftentimes confusing, work alongside a qualified immigration attorney as you go through this process.
Not responding to the email questionnaire
Another common error that often results in getting your PERM denied is when the employer fails to answer the questionnaire sent by the DOL following the electronic submission of the ETA 9089. These emails often go overlooked or are perceived as spam.
The 7-day deadline for the sponsorship questionnaire is absolute and includes weekends and holidays. The DOL is unforgiving. A response sent on the 8th day will be rejected, and the case will be denied.
Mismatch or Omission of the Beneficiary’s Work Experience
When filing the ETA 9089 form, your employer must include your previous employers and supervisors as they relate to the kind of work you will be doing in the U.S. This should also detail your:
- Position titles
- required skills
- and the dates that you were employed.
Your employer also must not leave out the name and number of all of your past managers or supervisors.
Avoid any mismatches between the job requirements listed by the employer on the ETA Form 9089 and the beneficiary’s documented work experience and skills.
Not keeping copies of PERM documents
One of the most important parts of any immigration process is keeping copies of the legal documentation. You absolutely need to have a file with duplicate copies of all forms submitted, correspondence with the DOL, and other attorney-related information. Not doing so can put your entire case in jeopardy should you receive a request for evidence or additional information from the DOL.
If you have recently received a PERM denial, take comfort in knowing that this is not the end of the road. There are additional options at your disposal that may still lead to a PERM approval.
Be aware, however, that any additional steps after receiving a PERM denial without audit are best handled by a seasoned professional. A PERM immigration attorney will be the foremost person to advise you on your particular case.
PERM Audit Timeline
You’ll generally know whether your case is being audited within 16-17 months of filing your PERM online. The first decision on your case, where an audit may occur, is made in the”analyst review” stage. The Department of Labor lists analyst review processing times with the latest updates.
If you have been selected for a PERM audit or RFE, you can expect the overall processing time to increase dramatically. Cases that are selected at random for audits take on average six more months from the time of responding to the audit.
Filing a Request for Appeal for PERM Denials
After a PERM denial has been issued in writing by the Department of Labor, the sponsoring employer has 30 days to make one of two choices. They can either:
- Request the certifying officer to reconsider the decision
- OR request a review by the BALCA (Board of Alien Labor Certification Appeals).
If one of these requests is not made within the 30 days, you forfeit the option to challenge the PERM denial. Also, note that it is the employer’s responsibility to file a request for the motion to reconsider or a request for review. The foreign national may not do so.
Any attempts made on behalf of the employee will be rejected. Furthermore, any fees or costs incurred to make a motion to reconsider or request for review shall be paid by the employer, as it is associated with the PERM process.
Speak to an experienced PERM attorney
Next Steps After a PERM is Denied
Motions to Reconsider
The “Motion to Reconsider” involves requesting the Certifying Officer (CO) to reconsider the given decision. This would be completed through a valid argument from the petitioner. The argument is only considered valid if the petitioner:
- provides proof of an inability to submit crucial documentation.
- contributes influential evidence that was overlooked at the time of the CO’s decision.
- Argues CO or government error. This can be owed to inaccurate data entry from the CO or the lack of confirmation from the CO when documentation was received.
The petitioner must file the PERM denial appeal via”Motion to Reconsider” to the Department of Labor processing center within 30 days of the denial date.
Request for Review
The appeal is submitted to the Board of Alien Labor Certification Appeals (BALCA), where the board can review the decision contingent on current regulations and prior cases. The “Request for Review” may be highly valuable, but the PERM process will take significantly longer.
The BALCA decision requires time to gather and analyze documentation submitted during the period of decision. When the appeal is filed with BALCA, no additional evidence will be admitted. In some cases, the process would be more beneficial to just resubmit a PERM petition than incur the appeal process.
The “Motion to Reconsider” and “BALCA review” can both conclude with similar outcomes if the case argument is strong enough. If the case has substantial evidence and a secure legal argument, the Department of Labor is likely to reconsider the initial PERM denial. The PERM denial appeal is suggested if the petitioner is under a time constraint and needs an immediately authorized petition for a nonimmigrant visa.
PERM Refiling Options
While a reconsideration or a BALCA appeal is processing, re-filing with the same employer after a PERM denial is not prohibited. If the BALCA appeal gets denied then re-filing a PERM application is allowed or your employer can choose to withdraw the appeal with the BALCA at any point in order to file a new PERM application. You need to evaluate the pros and cons of each choice alongside an immigration professional before making a final decision.
How a Reconsideration May Turn Into An Appeal
When the sponsoring employer files a motion for reconsideration, the certifying officer can either grant the motion for reconsideration and subsequently reopen the denied PERM case OR deny the motion to reconsider and instead treat it like a request for a BALCA review. If the latter is selected, then your case will be forwarded to Board of Alien Labor Certification Appeals for an appellate review.
After the appeal has been taken on by the BALCA, it is the employer’s and the DOL’s right to submit a statement in support of their arguments for approving the case. Once the BALCA has received any and all position statements, they can then support the certifying officer’s denial of the PERM or opt to overrule it and approve the PERM application (They may also request to remand the case for additional review). Last, but not least, a complete hearing may be ordered in front of the BALCA with all parties present to make their case.
PERM Denial Frequently Asked Questions (FAQs)
Can I-140 Be Denied After Perm Approval?
Yes, the I-140 can be denied even after the PERM labor certification has been approved. This can occur for various reasons, such as cases where the employer cannot show they can pay the employee’s salary, there is doubt that the job offer is bona fide, or there are major inconsistencies between the job offer and the employee’s qualifications. All of these situations are preventable with the support of an experienced attorney.
Will My PERM be Denied If My Employer is a Startup or Nonprofit Organization?
If your employer is not currently earning a profit, either by virtue of being a non-profit organization or by being in the beginning stages of the business, then you can still obtain a PERM Labor Certification. However, your employer will need to demonstrate that they can pay you the prevailing wage.
Will my PERM be denied if my employer goes out of business?
Yes. If your employer is going out of business, then the best thing to do would be to find a different sponsoring employer. Even if the PERM is secured before the company goes out of business, only that employer can file your I-140. You will still need to find a new employer and restart the PERM process.
Will leaving the U.S. during the PERM process affect my approval chances?
Fortunately, traveling abroad will not hurt your chances. However, you will need to have a visa to be allowed to re-enter, as having a pending PERM application does not grant you entry. Not being able to return to the U.S. may present serious issues for the completion of your green card process.