Many PERM (Program Electronic Review Management) applications are denied without an audit, often due to simple and avoidable administrative errors. The most frequent reasons include inconsistencies between the ETA Form 9089 and job advertisements, failure to follow the Department of Labor (DOL) recruitment guidelines (such as the “two Sunday newspaper ads” rule), and failure to respond to DOL email questionnaires within the strict 7-day deadline.
A denial, however, is not the end of the road. Employers have specific legal options to move forward. Within 30 days of the denial, the employer can either:
- File a Motion to Reconsider with the original Certifying Officer, or
- File a Request for Review (appeal) with the Board of Alien Labor Certification Appeals (BALCA).
It is critical to understand that only the sponsoring employer—not the foreign national beneficiary—can legally challenge a PERM denial. This must be done within 30 days, and the employer is responsible for all associated filing or appeal costs.
If you’ve received a PERM denial without audit, it’s understandable to feel frustrated after months of preparation and legal fees. However, it’s not always the final outcome. Below, the immigration attorneys at Green Card Link explain the most common PERM denial reasons, how to refile or appeal, and what to expect moving forward.
Common Reasons for PERM Denial
1. Errors on ETA Form 9089
Many employers make unintentional errors when submitting the ETA 9089 through the DOL’s portal. Because the form cannot be corrected after submission, the only remedy is to withdraw and refile—a time-consuming setback.
It’s also vital that the information on ETA Form 9089 perfectly matches all related recruitment materials, including the Job Order, Notice of Filing, and newspaper ads. Even minor inconsistencies can lead to an automatic denial.
Example:
If a job order lists a requirement of a bachelor’s degree and two years of experience, but the corresponding newspaper ad specifies a master’s degree and three years of experience, the DOL may deny the PERM application outright for inconsistency.
2. Failure to Follow PERM Advertising Guidelines
The DOL enforces strict recruitment rules, including the requirement to publish two Sunday newspaper advertisements. Missing even one Sunday ad—or posting outside the required timeframe—can result in denial.
Because these rules are complex, working with an experienced immigration attorney at Green Card Link ensures full compliance and reduces the risk of costly mistakes.
3. Missing the DOL Email Questionnaire Deadline
After an ETA 9089 submission, the DOL sends an electronic questionnaire to the employer to confirm the job details. This step is mandatory and time-sensitive. Employers have exactly seven calendar days (including weekends and holidays) to respond.
Failing to respond within this timeframe—even by a single day—results in automatic denial. Employers should closely monitor their inbox and spam folders to avoid missing this critical communication.
4. Inaccurate or Missing Work Experience Details
The ETA 9089 must accurately reflect the beneficiary’s previous employment history, including job titles, skills, and dates of employment, along with the names and contact details of all past supervisors.
Any mismatch between the job requirements listed on the form and the worker’s documented experience may trigger a denial.
5. Not Retaining Copies of PERM Documentation
Maintaining organized and complete records is essential. Employers must retain copies of all submitted forms, advertisements, and DOL correspondence for potential audits or evidence requests. Failing to keep these records can jeopardize future filings and complicate appeals.
If you’ve recently received a PERM denial, don’t panic. With professional guidance, it’s possible to refile successfully or appeal the decision. The immigration attorneys at Green Card Link have extensive experience helping employers navigate the complexities of the PERM process and can assess the best course of action for your case.
PERM Audit and Review Timeline
Generally, you will know whether your case has been selected for audit within 16 months of filing your PERM application. The initial review—known as the “analyst review” stage—determines whether the case proceeds normally or enters audit status.
If an audit is triggered, expect significant processing delays—on average, an additional six months after responding to the audit notice.
How to Appeal a PERM Denial
When the DOL issues a written denial, the sponsoring employer has 30 days to act. They can:
- Submit a Request for Reconsideration to the original Certifying Officer, or
- File a Request for Review with BALCA.
If no action is taken within the 30-day period, the denial becomes final and cannot be contested. Only the employer can initiate these motions—not the employee or foreign national. Additionally, the employer bears responsibility for any costs related to refiling or appealing the case.
Because these procedures are time-sensitive and legally intricate, consulting a qualified immigration attorney at Green Card Link is the best way to protect your interests and pursue approval.
Need Help After a PERM Denial?
A denial doesn’t have to end your green card journey. At Green Card Link, our experienced immigration attorneys can evaluate your case, identify the reason for denial, and guide you through a successful refiling or appeal.
Contact Green Card Link today to schedule a consultation and take the next step toward securing your employment-based green card.
PERM Denied: Next Steps and Appeal Options Explained by Immigration Attorneys at Green Card Link
Motion to Reconsider After a PERM Denial
When a PERM Labor Certification is denied, the sponsoring employer may file a Motion to Reconsider with the Certifying Officer (CO). This process asks the Department of Labor (DOL) to review and potentially reverse its prior decision. A motion is only considered valid if the petitioner can present one or more of the following:
- Evidence of inability to provide crucial documentation within the required time frame.
- New or overlooked evidence that could significantly impact the outcome of the case.
- Proof of government or Certifying Officer error, such as incorrect data entry or failure to acknowledge received documents.
The motion must be filed within 30 days of the PERM denial date and submitted to the appropriate DOL processing center.
PERM Denied Appeal: Request for Review by BALCA
If the employer disagrees with the denial after filing a motion, the next step is a Request for Review by the Board of Alien Labor Certification Appeals (BALCA). This appeal allows the board to evaluate the case based on existing regulations and prior precedents.
While appealing to BALCA can be beneficial, it is also a longer process, as the board needs time to collect, review, and assess all previously submitted documentation. It’s important to note that no new evidence can be introduced once the appeal has been filed.
In some cases, it may be faster and more practical to file a new PERM application rather than pursue a lengthy BALCA review.
Both the Motion to Reconsider and BALCA review can lead to favorable outcomes when supported by strong legal arguments and substantial evidence. However, if time is critical—especially for nonimmigrant visa purposes—filing an appeal may be the preferred route to obtain timely authorization.
Refiling Options After a PERM Denial
Employers may choose to refile a new PERM application even while a reconsideration or BALCA appeal is pending. If the BALCA appeal is ultimately denied, the employer can proceed with a new filing or withdraw the existing appeal at any time.
Before making a decision, it’s important to evaluate the advantages and risks of each option with guidance from an immigration attorney at Green Card Link to ensure the best strategy for your specific situation.
How a Motion to Reconsider Can Become an Appeal
When a motion for reconsideration is filed, the Certifying Officer may either:
- Grant the motion and reopen the previously denied case, or
- Deny the motion but treat it as a Request for BALCA Review.
If the case is referred to BALCA, both the employer and the Department of Labor will have the opportunity to submit position statements supporting their respective arguments. BALCA may then:
- Uphold the original denial,
- Overturn the decision and approve the PERM, or
- Remand the case for further review.
In some situations, BALCA may also order a formal hearing where all parties can present their cases directly before the board.
PERM Denial Frequently Asked Questions (FAQs)
Q. Will my PERM be denied if my employer is a startup or nonprofit?
Not necessarily. Even if your employer is a nonprofit organization or early-stage startup, it’s still possible to obtain PERM Labor Certification. The key requirement is demonstrating the ability to pay the prevailing wage for your position.
Q. What if my employer goes out of business during the PERM process?
Unfortunately, if your employer closes its business, your PERM will not remain valid. In that case, you’ll need to find a new sponsoring employer and restart the PERM process. Even if approval was secured before closure, only the original employer can file your I-140 petition.
Q. Can I travel abroad while my PERM is pending?
Yes. Traveling outside the United States during the PERM process will not affect your approval chances. However, you must ensure you have a valid visa to re-enter the country, as a pending PERM application alone does not grant re-entry rights. Inability to return could disrupt the green card process, so plan international travel carefully.
How the Immigration Attorneys at Green Card Link Can Help
At Green Card Link, our experienced immigration attorneys handle every stage of the PERM Labor Certification process—from preparing strong initial filings to managing appeals before the Department of Labor and BALCA.
Our attorneys have successfully secured hundreds of PERM approvals and appeals, using proven strategies that have turned denials into approvals for many clients. Whether you’re filing a motion to reconsider, requesting a BALCA review, or deciding whether to refile, our dedicated legal team will guide you toward the most effective path to achieve your immigration goals.