PERM Audit vs Denial: Key Differences and Employer Options

Employers who sponsor green cards through the PERM process often worry about two events: a PERM Audit and a PERM Denial. Both come from the U.S. Department of Labor (DOL), but they are very different. Knowing how each one works, who is affected, and what options exist can save time and keep a case alive.

Who faces PERM audits and denials

Any employer filing a PERM labor certification for a foreign worker can face an audit or denial, regardless of company size or industry. The process begins when the employer files ETA Form 9089 for a permanent job offer. The form and program details are explained on the DOL’s official PERM page at Department of Labor – PERM Program.

You are more likely to face a PERM Audit if:

• There were layoffs in the same job area within the past 6 months.
• The job has unusual or very high requirements.
• The wage level or duties seem out of line with DOL expectations.
• Your case is selected for random review.

A PERM Denial can hit any case, with or without an audit. Denials often result from:

• Errors or incomplete answers on ETA Form 9089.
• Missing or incorrect recruitment steps.
• Lack of proof that special job requirements are truly needed for the role.

What a PERM audit really means

A PERM Audit is a request for proof, not an immediate rejection. The Certifying Officer sends an audit letter asking the employer to submit detailed documents showing the company followed every PERM rule. Commonly requested items include:

• Copies of all ads and postings used in recruitment.
• Results of recruitment, including résumés and written reasons for rejecting U.S. workers.
• Evidence of layoffs and documentation showing how affected workers were considered.
• Business necessity materials explaining why extra requirements (like rare skills or languages) are needed.

Key points about a PERM Audit:

• Deadline: The employer has 30 calendar days to respond to the audit notice.
• One extension: DOL may allow one 30-day extension if requested on time.
• No response: If the employer does not respond, the case is automatically denied and DOL may place the employer under supervised recruitment for up to 2 years.
• Delay: An audit almost always adds processing time. Analysis by VisaVerge.com indicates a PERM Audit typically adds 6 or more months to normal processing.

Important: Treat an audit as serious but fixable — it asks for documentation, not immediate closure. Missing the response deadline is the most common and most damaging mistake.

What a PERM denial means for the case

A PERM Denial is a formal rejection of the labor certification. The employer receives a denial notice that lists the reasons for the decision. At this stage, DOL is not asking for more documents; it is closing the case unless the employer uses one of the available review options.

Denials can come:

• After an audit, if DOL determines the evidence is insufficient.
• Without an audit, if there are clear errors on the form or if rules were not followed.

The denial notice triggers strict time limits. Employers and foreign workers must act quickly if they want to keep the green card plan on track.

Options after a denial — eligibility and strategy

Only the employer (not the foreign worker) can take official steps after a PERM Denial. The main options are:

1. Motion for Reconsideration with the Certifying Officer (CO)
   • Who can file: The employer or its attorney.
   • Deadline: Must be filed within 30 days of the denial notice.
   • When it helps:
     • DOL overlooked documents already in the record.
     • The officer misapplied a rule.
     • The employer has new, strong evidence that could change the result.
   • Possible outcomes: CO may reverse the denial, uphold it, or send the case to appeal.
2. Appeal to the Board of Alien Labor Certification Appeals (BALCA)
   • When to use: If reconsideration is denied or skipped.
   • Deadline: File within 30 days (from the denial).
   • What BALCA does: Reviews the case record and legal arguments; it can uphold the denial, overturn it and order certification, or remand the case back to the CO.
   • Limitations: BALCA reviews the record and law — it does not consider new recruitment.
3. Refiling a new PERM case
   • When appropriate: Often best if the denial was based on recruitment mistakes or form errors that cannot be cured in the original file.
   • Important constraint: Generally, you cannot maintain a new PERM filing and an active BALCA appeal for the same job simultaneously. Employers must choose a path.

Required documentation at each stage

Keep a thorough PERM file from the outset. Typical records include:

• Copies of all job ads (newspaper, online, professional journals, state job bank).
• Proof of posting the internal Notice of Filing.
• Prevailing wage determination from DOL.
• Résumés from all applicants and documented reasons why each U.S. worker was not hired.
• Detailed job description and listed minimum requirements.
• Business necessity letters for extra requirements.
• Corporate documents showing the business is real and able to pay the offered wage.

When filing ETA Form 9089 online through the DOL system (form details at DOL Foreign Labor Forms), ensure every answer matches the recruitment steps and wage determination. Many PERM Denials result from simple mismatches — for example, listing a different degree requirement on the form than in the ads.

Deadlines and timing (at a glance)

Step-by-step process overview

1. Conduct all required recruitment for the PERM job.
2. File ETA Form 9089.
3. Wait for one of:
   • Certification
   • PERM Audit notice
   • PERM Denial notice
4. If an audit arrives, gather and send all requested documents within 30 days (or 60 days if an extension is granted).
5. If a denial arrives, decide quickly whether to:
   • File a motion for reconsideration with the CO,
   • Appeal to BALCA, or
   • Refile a new PERM case.

Practical tips to reduce risk and protect the case

• Keep a complete audit file from day one. Operate as if every case will face a PERM Audit.
• Double-check ETA Form 9089 against recruitment. Ensure dates, job title, duties, requirements, and location all match exactly.
• Explain unusual job requirements in writing. Prepare a strong business necessity letter before filing.
• Track all deadlines in writing and in a calendar system. Missing the 30-day windows for audits, motions, or appeals usually ends the case.
• Communicate with the foreign worker. Audits or appeals can affect H‑1B status, travel, and family decisions — clear communication is essential.

Key takeaway: Understanding how PERM Audits and PERM Denials work, and how BALCA fits into the process, helps employers and workers respond calmly and effectively when DOL raises questions or denies a case.