After submitting a PERM application, the officers at the PERM Processing Center may request an audit to ensure you meet the specific qualifications required for employment-based permanent residency. While some PERM audits are randomly selected, others may be chosen due to a red flag in the application. If your application was denied following an audit, read along to understand your options to get out of this stressful situation.
What to do if PERM is Denied
If your PERM is denied following an audit, you have two options:
- Motion to Reconsider: This is a formal request asking the same Certifying Officer to review the denial. It must argue that the decision was legally flawed or based on a misunderstanding of the facts already presented in the case file. Crucially, a Motion to Reconsider cannot be used to submit new evidence that was not in the record when the denial was issued.
- Request for Review: This is an appeal to request for a third party, the Board of Alien Labor Certification Appeals (BALCA), to review your case and make an unbiased decision.
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Motion to Reconsider |
BALCA Appeal |
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What is it? |
A request for the same officer to re-evaluate the case. |
Provide essential artistic/technical support for live or recorded performances |
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Key Requirement |
Submitting a compelling arguement the officer made an error of fact or law based only on the evidence already submitted. |
Alleges a broader error, including misinterpretation of law, incorrect application of legal standards. |
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Typical Timeline |
Relatively quick; a decision is often made within 2 to 6 months. |
Lengthy; a decision may take 12+ months |
PERM Audit Initial Response
If you (the petitioner) are picked for a labor certification audit, your U.S. employer will receive an electronic request from the Certifying Officer requesting specific evidence that must be reviewed before a final decision can be made. This will include a due date, typically 30 days from the letter date.
If the detailed response is not submitted by the deadline, your employer will receive a ‘failure to comply’ notice. Subsequently, it will be denied.
If your employer responds promptly, the Certifying Officer will decide whether the submitted materials and arguments explain any inconsistencies or red flags on the ETA 9089 Form. From there, the application will either be denied due to inconsistencies or further evidence will be requested.
Audit Processing Time
Cases not audited by the DOL normally receive a decision within 16 to 18 months after filing.
Cases audited by the DOL may be delayed a further 9 to 10 months. Giving an exact processing time is difficult due to individual complications and circumstances. Permanent labor certification audit responses are reviewed based on the order of entry. More specific audited processing dates can be found on the Department of Labor website.
Why Was My PERM Application Audited?
There are a variety of possible explanations for a PERM audit. Some of the most common audit triggers include:
- Trade related jobs
- Occupations which the min. education requirement is less than a 4-year degree
- Cases that require a degree but no experience
- Cases where employer indicates recent layoff
- Applications submitted for same employer/employee after a denial in the past year
- Applications by same employer/employee resubmitted after a withdrawal in audit case for the past year
Document required for the PERM audit:
- Copies of ads referenced in ETA 9089
- Applicant’s resume copies
- Prevailing wage determination
- Signed and completed recruitment report
- Signed and completed notice of filing
- Signed and dated ETA 9089
A qualified immigration attorney can better explain your options if you’ve received a PERM audit request.
PERM Denial Explained
After a PERM denial has been issued by the Department of Labor, your employer has 30 days to take one of two actions. The first option is to request a reconsideration of the decision by the officer OR request a review by the Board of Alien Labor Certification Appeals (BALCA).
What if my employer takes NO action?
If your employer does not select one or the other courses of action, the decision will be made final and your employer will no longer be able to challenge it. As the employee you cannot request a review or challenge the PERM, only the employer can. Attempts made on behalf of the employee are usually just rejected. What’s more, any additional cost related to challenging the denial are supposed to be handled by the employer.
How to Respond to a PERM Denial: Motion vs. Appeal
If your employer chooses to request a reconsideration, the certifying officer will either grant the motion for reconsideration or deny it and treat it as a request for a BALCA appeal. From there (once appeal is docketed) the employer and DOL can submit a statement of position for their case. BALCA will then either confirm the officer’s decision and deny the application or send the case back to the CO for further review.
Is It Better to Appeal or Refile?
If you or your employer believes the PERM denial is due to an error on the DOL’s behalf, you should file a request for appeal. Again, appeals with BALCA may take a considerable amount of time until a decision is finally made. In some cases, an immigration attorney may advise you to just accept the PERM denial and refile the PERM petition at a later time, since the appeals process can be so consuming.
Click here to learn about PERM denials without audit including the next steps, additional ways to receive an approval and more.
How VisaNation Law Group’s PERM Lawyers Can Help
VisaNation Law Group’s PERM lawyers can help you understand the reason for your PERM denial and the most appropriate course of action for responding. They’ve handled a range of complex cases including filing motions and appeals through BALCA. They offer Free Immigration Consultations to individuals/businesses who are looking to retain a law firm for employment and investment immigration matters.