Post-PERM Denial: Next Steps, Reconsideration, BALCA, and Refiling

When a PERM labor certification is denied, it feels like everything stops. The green card plan that you and your employer have built around that PERM can suddenly seem at risk. The good news is that a denial is not always the end of the road. The employer still has several clear options, and each has its own process, deadlines, and expected timelines with the Department of Labor (DOL).

First Priority: Read the Notice of Denial Carefully

The process always starts with the Notice of Denial. This is the formal letter from the Department of Labor that explains exactly why the PERM was denied. Only the employer receives it, and only the employer has the power to respond. The foreign national employee cannot file an appeal or motion on their own.

This notice is not just a formality — it controls what can happen next. The reasons listed in the Notice of Denial will shape whether it makes more sense to ask for reconsideration, appeal to BALCA, or refile a new PERM.

Common reasons the DOL lists in a Notice of Denial include:

• Incomplete or inaccurate documentation in the PERM file
• Recruitment problems, such as missing required job ads or weak proof of the recruitment steps
• Mismatch between the job description and actual requirements the employer uses
• Issues with the prevailing wage or job order
• Failure to respond to a DOL audit within 30 days
• Alleged misrepresentation or incomplete disclosure, including inconsistent answers or missing details

According to analysis by VisaVerge.com, denials linked to incomplete or inconsistent disclosure have become more common, even without a prior audit, which makes careful review of every answer more important than ever.

Key immediate actions for the employer:

• Make a complete copy of the Notice of Denial.
• Compare every reason listed with the original PERM file.
• Speak with an experienced immigration lawyer to plan which option fits best.

There is no official deadline just to read and review the denial, but there is a strict deadline for the next step if you choose to challenge it.

Important: The reasons in the Notice of Denial determine the available next steps. Treat the notice as the central roadmap for how to proceed.

Option 1: Ask the Certifying Officer to Reconsider the Denial

The fastest way to challenge a denial is a request for reconsideration (often called a “motion to reconsider”) with the same Certifying Officer (CO) who signed the denial.

Key points for reconsideration:

• The employer has 30 days from the date of denial to file the request.
• Only the employer can file it; the employee cannot file on their own.
• The request asks the same officer to look at the case again and change the decision.

In a reconsideration request, the employer can:

• Point to evidence that was already in the record but may have been missed or misunderstood.
• Clarify how the recruitment, prevailing wage, or job requirements met the rules.
• In some limited cases, submit additional evidence or arguments, but only if there was no earlier chance to present that material.

The 30‑day period is strict. Missing it means losing the chance to ask for reconsideration and to appeal to BALCA based on that denial.

Consequences and outcomes:

• If the Certifying Officer agrees with the employer’s arguments, the PERM can be approved on reconsideration.
• If the officer still believes the denial was correct, the request is denied again and the employer then faces a choice: appeal to BALCA or refile a new PERM.

Practical note: During this timeframe, the employee’s status clocks (e.g., H‑1B time) may continue to run while the employer and lawyer prepare the motion.

Option 2: Appeal the Denial to BALCA

If reconsideration is denied, or if the employer decides not to request it, the next formal step is an appeal to the Board of Alien Labor Certification Appeals (BALCA).

Key features of a BALCA appeal:

• The employer must file the appeal within 30 days of the denial (or within 30 days of the reconsideration decision, if that is what is being appealed).
• BALCA is an independent body that reviews PERM denials made by the Department of Labor.
• No new evidence is allowed at this stage. BALCA reviews only the record that existed when the Certifying Officer made the decision.

BALCA can take several actions:

• Uphold the denial, leaving the case denied.
• Overturn the denial and approve the PERM.
• Remand the case, sending it back to the Certifying Officer for further review.
• Order a full hearing (rare).

Timeline and practical concerns:

• Appeals to BALCA generally take 3–4 years to finish.
• During that time, the foreign national may need an alternative plan to maintain work authorization and legal status in the United States, because the PERM itself does not provide immigration status or a work permit.

Because of the long timeline, many employers decide that a fresh PERM filing is more practical than a BALCA appeal, especially when the denial stems from a simple error or missing document.

Option 3: Refile a New PERM Application

The third path is to start over with a brand new PERM case. This option is available whether or not the employer chooses to appeal, and it is often the most realistic way forward.

Re‑filing a PERM involves going back through the usual steps:

1. Request a new prevailing wage determination from the Department of Labor.
2. Run new recruitment for at least 60 days, following the PERM rules.
3. File a fresh ETA 9089 form with DOL.

The ETA 9089 is the main PERM application form. Official details and current versions of the form are available on the DOL website at ETA 9089 – Application for Permanent Employment Certification. For broader program rules, the Department of Labor also explains the PERM process at its PERM program page.

Why many employers refile:

• Re‑filing is usually faster than waiting years for BALCA to decide.
• It’s attractive when the denial was caused by:
  • A missing or flawed ad
  • A technical mistake on the form
  • A documentation gap that can be fixed in a new case

Risks of re-filing:

• If the denial involved deeper issues (e.g., a pattern of misrepresentation or repeated failure to follow PERM rules), the DOL may deny the new case and could impose supervised recruitment on future filings.

When the Department of Labor Requires Supervised Recruitment

If the DOL believes an employer has not carried out recruitment properly, or sees a pattern of non‑compliance, it can require supervised recruitment for later PERM applications.

Under supervised recruitment:

• The DOL takes a direct role in the recruitment process.
• Job ads may need DOL approval and must instruct applicants to send responses to the Certifying Officer, not to the employer.
• The employer must prepare detailed, written evaluations of each U.S. worker who applies and submit them to the DOL.

Supervised recruitment makes the process slower and more controlled, and it demands more detailed record‑keeping. Many employers therefore work hard to avoid this by carefully following recruitment rules in every PERM case.

Risk of Revocation Even After Approval

A denied PERM is painful, but it is also important to know that even an approved PERM is not completely safe forever. The DOL can revoke an approved PERM at any time if it later finds that:

• The employer did not truly meet the PERM requirements, or
• There was misrepresentation or incomplete disclosure in the original application.

A revocation can create serious problems for both the employer and the foreign national, especially if the approved PERM has already been used to file an immigrant visa petition with U.S. Citizenship and Immigration Services (USCIS). This is one reason employers are advised to keep very detailed files of their recruitment steps and communications with the DOL from the start.

Practical Steps for Employers and Employees After a PERM Denial

Both employer and employee have roles to play when a PERM is denied, even though only the employer can act directly with the DOL.

For employers:

• Act quickly: Mark the 30‑day deadline for reconsideration or appeal as soon as the Notice of Denial arrives.
• Organize the file: Gather all recruitment evidence, prevailing wage documents, audit responses, and internal notes.
• Work with counsel: An experienced immigration lawyer can help decide whether reconsideration, BALCA appeal, or re‑filing is the better fit based on the exact denial reasons.

For employees:

• Ask your employer to share the general reason for the denial so you understand the path ahead.
• Discuss how the denial affects your visa status and long‑term plans with your own immigration lawyer if needed.
• Prepare for different timelines: a quick re‑file, a multi‑year BALCA appeal, or both at the same time if the employer chooses.

For both sides, documentation is crucial:

• Keep copies of every ad, every recruitment report, and every email or letter from the Department of Labor.
• If DOL later questions whether recruitment was done properly, a strong paper trail can make the difference between approval, denial, or revocation.

Key takeaway: A PERM denial is a serious setback, but it is not the end of the employment‑based green card journey. With careful reading of the Notice of Denial, strict attention to the 30‑day deadlines, and a clear choice among reconsideration, BALCA appeal, or re‑filing, many employers successfully correct problems and move the case forward.