What Happens If a PERM Application Is Denied?

A PERM denial is not the end of the road, but it is a serious setback — and one that requires immediate, informed action. Understanding why denials happen and what options are available afterward is essential for any employer engaged in employment-based green card sponsorship.

PERM denial does not automatically end the employee’s ability to obtain a green card. Depending on the reason for denial, there may be paths forward — but the window to act is time-sensitive.

Why Are PERM Applications Denied?

The Department of Labor denies PERM applications for a range of procedural and substantive reasons. The most common include:

• Incomplete or inconsistent recruitment documentation
• Failure to conduct all required recruitment steps within the required timeframe
• Wage offered below the prevailing wage determination
• Job requirements found to be unduly restrictive or tailored to a specific individual
• Evidence that employer-paid costs were directly or indirectly passed to the employee
• Inadequate response to an audit request

Many denials are the result of errors on the PERM application, such as missing information, inconsistent details, or procedural defects — the result of documentation errors or missed requirements rather than substantive problems with the underlying case. Substantive denials, such as those involving overly restrictive job requirements, require more careful analysis before any next step is taken.

What Are the Options After a Denial?

Motion for Reconsideration

The employer may file a motion for reconsideration with the DOL, arguing that the denial was made in error. This option is most appropriate where the denial was based on a misapplication of the regulations or a procedural disagreement — not where the underlying facts of the case are genuinely problematic. A motion for reconsideration must be filed within 30 days of the denial.

Board of Alien Labor Certification Appeals (BALCA)

In the alternative, or if the Motion for Reconsideration is denied, the employer may appeal to the Board of Alien Labor Certification Appeals (BALCA). BALCA reviews whether the DOL’s decision was consistent with applicable regulations. This process adds significant time and is not appropriate in all cases, but it is an important option when the employer believes the denial was legally incorrect.

Refiling a New PERM Application

In many cases — particularly where the denial was procedural — the most practical path forward is to refile a new PERM application. This means restarting the process, including a new prevailing wage determination and a new round of recruitment. The employee loses their original priority date, which can have significant consequences.

Before refiling, the circumstances that led to the denial should be carefully reviewed and corrected to reduce the risk of a second denial.

What Happens to the Employee’s Immigration Status?

A PERM denial does not directly affect the employee’s existing nonimmigrant status. If the employee maintains valid nonimmigrant status and the employer chooses to refile, the process can continue without the employee being required to leave the United States. However, if the denial occurs at a point where the employee was relying on the green card process for status extensions (which applies mainly to H-1Bs), immediate consultation with counsel is critical.

Can the Employee Keep Their Priority Date?

If the PERM is denied, no I-140 can be filed, so there is no priority date to preserve. The employee would receive a new priority date based on the filing date of a future PERM application. For obvious reasons, losing a priority date — even by a few months — can have significant long-term consequences.

The Practical Reality

Most PERM denials are avoidable with proper preparation. Thorough recruitment documentation, a carefully designed job description, strict adherence to procedural requirements, and prompt, complete responses to any DOL audit requests are the most effective protection against denial.

When a denial does occur, the response strategy depends entirely on the reason for the denial. There is no single correct path — the right approach requires careful analysis of the denial notice and a realistic assessment of the employer’s documentation and timeline by a qualified and licensed attorney.

Polatsek, Boheme & Wilkowski advises employers on PERM strategy, audit response, and options following denial. If your PERM application has been denied or audited, contact the firm promptly to discuss your options. For an overview of the PERM process, see PERM Labor Certification at polatsek.law.