A Certifying Officer (CO) has the authority to approve or deny a PERM labor certification application. In making this determination, the CO evaluates whether the employer has satisfied the regulatory requirement of demonstrating that there are no able, willing, qualified, and available U.S. workers for the offered position.

If the application is approved, the CO will issue the certified ETA Form 9089 along with a final determination to the employer. If the application is denied, the final determination must clearly outline the reasons for the denial and inform the employer of the available review procedures.

A common question raised during consultations is “My PERM was denied. What are my options?”

A denial does not automatically end the green card process. Employers generally have two avenues to challenge the decision, but strict filing deadlines apply. If no timely challenge is submitted, the denial becomes final.

Alternatively, if the employer chooses not to seek review, a new PERM application may be filed at any time. However, once a request for reconsideration or review is filed, the employer may not submit a new PERM application for the same beneficiary and the same position until all remedy procedures have been exhausted.

Option 1: Request for Reconsideration

A Request for Reconsideration is filed with the Certifying Officer who issued the denial. This request must be submitted within 30 days of the date of the denial letter.

By filing a Request for Reconsideration, the employer is asking the Certifying Officer to review the decision and reverse the denial. Importantly, the employer may only rely on:

• Documentation that was originally submitted with the PERM application in response to a request from the CO, and
• Documentation that existed at the time the PERM was filed and was required to be maintained by the employer.

The employer cannot submit new evidence that materially changes or alters the original PERM filing.

If the Certifying Officer denies the Request for Reconsideration, a Notice of Decision will be issued. At that point, the employer may file a Request for Review with the Board of Alien Labor Certification Appeals (BALCA) within 30 days of the Notice of Decision.

Option 2: Request for Review with BALCA

Instead of filing a Request for Reconsideration, the employer may choose to proceed directly with a Request for Review to BALCA. This request must also be filed within 30 days of the original denial letter.

When filing a Request for Review, the employer may submit only legal arguments and documentation that was previously provided to the Certifying Officer. No new evidence may be introduced at this stage.

Important Considerations

An employer cannot pursue a Request for Reconsideration and a Request for Review at the same time. If both are filed simultaneously, the case will be treated as a Request for Reconsideration.

Because every PERM case involves unique facts and procedural issues, employers should consult with experienced immigration counsel to evaluate the strongest strategy based on the specific circumstances of the denial.

For over 25 years, Reddy Neumann Brown PC has focused solely on U.S. employment-based immigration, and works with employers to establish best practices when navigating the PERM labor certification process. If you are in need of a U.S. work visa or permanent residency, speak with one of our immigration lawyers. Please contact us online, call our Houston business immigration office directly at 713-953-7787 or schedule a consultation.

By: Jessica Palarca

Jessica Palarca is an Associate Attorney in Reddy Neumann Brown PC’s PERM Labor Certification Department where she assists clients in the beginning stages of the green card process.