1. Review the Final Determination before Choosing a Procedure
The Final Determination explains why the Department of Labor denied the PERM application. Before challenging it, the employer should compare each stated ground with Form ETA 9089, recruitment records, audit materials, and other documents that were part of the case.
The Employer Generally Has 30 Days to Act
Under 20 C.F.R. § 656.24, an employer seeking reconsideration must file the request within 30 days from the date of issuance of the denial. The request must identify the grounds for reconsideration and include the supporting documentation permitted by the regulation. An employer that wants BALCA review of the denial also faces a 30-day period under 20 C.F.R. § 656.26. The Final Determination and applicable regulations should therefore be reviewed before preparing the substantive challenge.
Reconsideration and Balca Review Serve Different Functions
Reconsideration asks the Certifying Officer to revisit the denial. It may be useful when the employer contends that the decision failed to account for qualifying information in the record or resulted from a Department error. The employer may instead request BALCA review of the denial. BALCA reviews the Certifying Officer's determination within the regulatory framework and applicable record. The denial ground and existing record should drive the choice. PERM reconsideration is not a USCIS motion to reopen or reconsider, and BALCA is not the Board of Immigration Appeals.
2. Build the Challenge Around the Existing Perm Record
A PERM denial generally cannot be repaired by creating a new record after the fact. The reconsideration rules limit the documentation the Certifying Officer may consider, so employers should determine what existed and what had already been submitted before deciding how to proceed with their PERM Labor Certification.
New Evidence Is Subject to Important Limits
Under 20 C.F.R. § 656.24(g), a reconsideration request may include documentation that the employer previously submitted to the Certifying Officer or documentation that existed when the application was filed and that the employer maintained to support the application. The regulation does not make reconsideration an unrestricted opportunity to create evidence after denial. For each supporting document, the employer should determine when it existed and why it falls within the permitted record.
Department Error Requires a Focused Reconsideration Request
A claimed Department error presents a different issue from an employer mistake in the application or recruitment process. DOL guidance recognizes reconsideration based on certain Department errors, including circumstances involving DOL data entry or evidence showing that the employer timely responded to an audit request. The request should identify the specific claimed error and the existing records that demonstrate it. Reconsideration should address the reason for denial rather than attempt to rewrite the original PERM application.
Direct Balca Review Also Has Record Limits
An employer may request BALCA review without first seeking reconsideration. Under 20 C.F.R. § 656.26, BALCA reviews the denial based on the record on which the decision was made, the request for review, and any legal briefs submitted in the appeal. Employers should not assume that evidence first created or introduced on appeal can cure an earlier filing defect. That limitation makes the record developed before the Final Determination particularly important.
3. Understand What Happens after Reconsideration or Balca Review
The next step depends on the route the employer selected and the resulting decision. Reconsideration and BALCA review are related administrative remedies, but an unsuccessful reconsideration request does not by itself complete the steps required for Board review.
An Unsuccessful Reconsideration Requires Further Action for Balca Review
If the Certifying Officer does not reverse the denial on reconsideration, the employer must follow the applicable procedure to obtain BALCA review. The employer should not assume that an unsuccessful reconsideration request automatically places the case before the Board. The resulting notice and applicable filing requirements should be reviewed promptly because administrative review remains deadline driven.
Balca Can Affirm, Reverse, or Remand the Case
BALCA may affirm the Certifying Officer's determination, reverse it, or remand the matter for further proceedings consistent with the Board's decision. A remand does not itself mean that BALCA has certified the labor certification. Instead, it returns the matter for further agency action within the scope of the remand. What happens next depends on the Board's instructions and the issue that required further consideration.
Balca Review Does Not Restart the Perm Process
BALCA review addresses the challenged denial. It is not a new PERM application and does not restart recruitment or give the employer a general opportunity to rebuild the filing. The employer's arguments should therefore identify the factual or legal error in the challenged determination and explain why the existing record supports a different result.
4. Frequently Asked Questions
Does a PERM Denial Affect My Priority Date?
For an employment-based case that requires labor certification, the priority date generally is the date DOL accepted the labor certification application for processing. A final denial can therefore affect the immigration strategy associated with that PERM application. A new PERM application is a separate filing. Employers and foreign workers should not assume that filing again will preserve the filing date associated with the denied application.
Can an Employer File Form I-140 While a PERM Denial Is Being Reconsidered?
A PERM-based Form I-140 generally requires a valid labor certification, and the employer normally must submit the certified labor certification with the petition in the manner required by USCIS. A pending reconsideration request or BALCA review does not itself convert the denied PERM application into a certified labor certification. If the administrative challenge ultimately results in certification, the employer can then evaluate the Form I-140 filing under the requirements applicable at that time.
5. Review the Perm Record before the 30-Day Period Expires
The first task after a PERM denial is to determine why DOL denied the application and what the existing record can support. The employer can then evaluate whether reconsideration by the Certifying Officer or BALCA review addresses the actual problem. When the 30-day period is approaching or the denial affects an ongoing employment-based immigration strategy, an immigration attorney well-versed in US Immigration Law can review the Final Determination and PERM record. The immediate objective is to preserve available administrative review and choose the procedure that fits the stated reason for denial.
28 Sep, 2026
