Preventing And Responding To The PERM Explosion
When the PERM program was first introduced, I set my sights on mastering the system and becoming somewhat of a PERM
guru. I was indeed an overly confident and naïve young practitioner. This year, as I have watched both seasoned and novice
practitioners (and dare I say experienced Department of Labor Certifying Officers) wade through the new system, I have come to
realize that the PERM guru does not exist and won’t for a very long time. Practitioners across the board continue to learn
the ins-and-outs of the program. While our experiences for the most part have been positive and successful, we also have found
that sometimes our most careful and diligent efforts can result in a “PERM Explosion.”
PERM explosions are the denials that we all fear and dread – the ones issued immediately, without an audit from the
DOL.  Their impact is felt more heavily than those under the previous system because of their immediacy. The
attorney feels an intense let down because he/she is more emotionally connected to the case, having just spent a considerable
amount of time working with the client in preparing the application. There is also a feeling of helplessness on the part of the
attorney because the PERM program does not issue Notices of Findings, allowing an opportunity to any correct mistakes.
What ignites these PERM explosions, and how can attorneys react to them so as to minimize their effects on clients?
Some explosions are the result of clerical errors. The attorney drafts a carefully worded application, but accidentally inputs an
improper expiration date for the prevailing wage determination – perhaps because no date was listed on the determination.
Or, maybe the attorney inadvertently uses a Monday’s date as opposed to a Sunday’s date for the newspaper
advertisements.  Or, perhaps the explosion is the result of inadvertent date mismanagement resulting from a lack
of communication between the employer and the attorney (i.e. the advertising took place outside of the prescribed 30 and 180
day window prior to filing)
Fortunately (for practitioners!), not all PERM explosions are the result of attorney errors or miscommunication between
attorneys and clients. Many result from system or DOL errors. For example, the preparer indicates on Form 9089 that the Job
Order was posted for sixty days as opposed to thirty days. Thirty of those days fell within the 30 and 180 window; however, a few
of the days fell outside of that window. While the employer has not violated any procedures and in fact has gone beyond their
advertising responsibilities, they will still receive a denial because the system automatically generates denials when a date falls
outside of the prescribed window.
Another DOL error that often occurs involves the e-mail or telephone call to the employer, requesting verification of the PERM
filing. Some employers have had difficulties submitting responses online. When this happens, the DOL is supposed to shift the
case to manual processing and then call the employer for confirmation. Many of these calls are not made and the application is
A third DOL error occurring regularly involves the manual submission of Form 9089. When the DOL receives a manual
submission, employees input that data into the system. This information often times is put in improperly, thus making the worker
unqualified for the position offered or the employer in violation of its recruitment requirements. Boom! Another explosion.
A fourth error involves the withdrawal of an application. Once an application is electronically submitted, it is considered final. If
the attorney later realizes that an error was made, the only way to correct the error is by withdrawing the application and then
resubmitting it.  The DOL has provided instructions for withdrawing the application through the online
system.  The problem, however, is that the attorney is not always made aware of when the actual withdrawal takes
place. While he/she may have followed the proper steps for withdrawal, the case may still be pending in the system. If
subsequent case is then re-filed, a denial will instantly be generated.
All of these explosions, regardless of fault, can either be avoided or responded to immediately so as to minimize the effects on
the client. The following provides helpful hints to prevent and respond to the infamous PERM explosion, and thus alleviate the
imminent anxiety felt by firms and clients when an immediate denial is received.
Managing Client Expectations
The birth of the PERM program resulted in increased client expectations. Under the old system, employees and
employers had difficulty seeing the light at the end of the tunnel. Labor certification applications, in some regions, were taking
upwards of three years to process. The PERM program creates a cure-all to this seemingly endless process as it allows for
some sense of finality in about six months.
All of this excitement must be measured. The PERM explosions described above call on attorneys to manage client
expectations. From the outset, the employee and employer need to be informed of the pitfalls in the system. A faster labor
certification process does not necessarily mean a flawless labor certification process. Attorneys must impress upon employers
and employees their responsibilities and the need for their cooperation in the overall process. The employer’s willingness
to actively and efficiently participate in the recruitment efforts will expedite the process and enable the attorney to file within three
months. If an employer takes its responsibilities seriously and enables an attorney to file in a timely manner, then it is more
likely that the attorney can act quickly if an explosion ignites.
The best way to avoid any real damage from the PERM explosion is through careful practice management. Every firm
should develop streamlined procedures for filing PERM applications, so as to minimize errors and maximize the ability to control
damage in the case of denials. When establishing such procedures, it is important for the firm to first read and be familiar with
the final PERM rule outlined in 20 CFR Parts §§ 655 and 656.
A firm’s process should establish step-by-step approach to filing a PERM application. A very basic process would
include the following steps:
Make Initial Inquiries & Send Engagement Letter Describing the PERM Process
Is the employer capable of sponsoring the alien? Have there been any layoffs in the area of intended
employment? From the USCIS’ perspective, can the employer pay the proffered wage?
- Is the employee eligible to obtain a green card?
- Is the employer willing to sponsor the alien, after being informed of its duties and responsibilities in the
entire green card process?
Develop Job Description and Requirements
Be sure to examine job letters and degrees prior to finalizing job description and requirements, so as to
make sure that the employee has in fact the requirements for the job
Keep in mind prevailing wage determinations, EB-2 v. EB-3, SVP, Alternative Experience, language
requirements, business necessity, on-the-job experience, etc.
Request Prevailing Wage Determination from State Workforce Agency
Place Job Order with State Workforce Agency for at Least 30 Days
Place Physical Posting for Ten Business Days at Work Site
Place 2 Sunday Newspaper Advertisements
Place Three Additional Advertisements
Instruct Employer how to engage in Resume Review, keeping in mind the bona fides of this
Application Preparation during the 30 Day Pre-filing Period
Set-up PERM Account
Prepare Audit File and Supporting Documentation
Prepare Draft Form 9089
Submit PERM Application within 3 Months of First Advertisement, if possible
Inform Client that the case has been filed and that the DOL will contact employer to confirm the
Send Client the Audit File
Central to this streamlined process is date management. As previously indicated, all advertising – with the exception of
one ad – must take place within a 30 and 180 day window before filing. A firm’s docket clerk – be it a
computer or an individual – must make a note of when the first advertisement is placed. This notation should include the
180 deadline as well as periodic status checks. By doing this, firms can avoid filing a PERM application after the expiration of
Typically, the first advertisement placed is the job order, although it is prudent to obtain the prevailing wage determination before
placing the first advertisement. This ad must remain posted for at least thirty days, and cannot run within thirty days of filing the
applications. It is the job order that slows down the filing of PERM application, making it impossible to complete the process in
less than sixty days. It is also the job order that often prevents employers from their ability to immediately re-file an application
after a denial. It is not uncommon that a firm has to re-submit a job order, and wait another sixty days before re-filing an
application. For this reason, it may be in the client’s best interest to post the job order for at least sixty days. Form 9089
need only indicate the required thirty days of its posting, so keeping it up for sixty days will not slow down one’s first
filing. It will only protect a company in the case of a denial by increasing the employer’s ability to re-file without having to
What happens if you have done everything to avoid the PERM explosion and yet it still happens? How can practitioners minimize
the overall effects of an immediate denial?
The basic inquiry when this happens is whether to re-file the application,  file a Request for Review from the
Certifying Officer,  or file an Request for Review (a.k.a. appeal) with the Board of Alien Certification Appeals
(BALCA).  When making this decision, the attorney should first consider how the denial affects the alien’s
non-immigrant status. Many PERM applicants are in H-1B status, which allows them to work in the U.S. for a maximum of six
years. If their labor certification application is filed more than one year prior to the expiry of their six years, then they can
continue to extend their H-1B status in one year increments until they obtain their green card.  If the labor
certification application was filed just prior to the beginning of the alien’s final year in status, and that application was
subsequently denied, attorneys should not necessarily rush to re-file the case. The attorney, instead, must first evaluate why it
was denied and whether there is a basis to file a Request for Review from either the Certifying Officer or BALCA. If the application
was denied due to a Department of Labor error or an immaterial error made on the application form, then it is probably in the
alien’s best interest to first file a request with the Certifying Officer. As it is possible to speak directly to Certifying
Officers on particular cases, the attorney may want to inform the officer in advance of making the formal request.
A BALCA request for review may also be in order if non-immigrant status is at issue. This should be submitted if the
reason for the denial raises a question of law. For example, was it denied due to business necessity, alternative experience
requirements, or experience gained on-the-job. From a legal standpoint, it may be wise to bring the matter to BALCA’s
attention and develop case law. Other than the rare instance where the alien’s non-immigrant status is in question, a
BALCA review has few advantages other than the development of law. Typically, the goal of the alien is to obtain his/her green
card in the fastest way possible. A BALCA review, which could drag on for months or years, is counter to this goal. It is probably
in the alien’s best interest to start the process over and re-file the case, keeping in mind the reasons for the initial denial.
If a Request for Review from the Certifying Officer or BALCA is not necessary, it is probably best to just re-file the case.
In re-filing, the first inquiry that should be made is whether the advertising is still valid. Did it occur within the last 180 days? If so,
then the attorney should correct the error indicated in the denial notice and immediately re-file the case. This option is obviously
the easiest way to control damage in the instance of a PERM denial, and is an incentive for the attorney and the employer to file
within three months of the first advertisement.
If the advertising has expired, then attorney should instruct the client to immediately post new advertisements.
Chances are they will need to re-post the job order. This should be done as soon as possible as a re-filing of the petition cannot
take place for sixty days after the job order is posted. A slow down at this point will only delay the ultimate re-filing. While the
new job order is pending, the other advertisements should be posted.
The next inquiry to be made is whether the prevailing wage determination remains valid. If not, then a new request must
be made. It is important to wait until you receive the new prevailing wage determination prior to posting the wage for the position.
Once these actions are taken, then the attorney and the client should proceed accordingly with the PERM application
process, reviewing all resumes and preparing an audit file with a detailed recruitment report.
Every firm practicing business immigration law has the potential of experiencing the PERM explosions detailed above.
The denial rate in PERM cases is actually quite high, with over 23,205 denials in the first year of the program. 
Only by practicing case management and establishing a strategy to respond to these pitfalls will practitioners be able to avoid
future explosions or minimize their effects so as to not harm the employee.
1 Between March 28, 2005 and March 17, 2006, 80,272 PERM labor certification applications were filed with the
Department of Labor. Of those cases, 36,687 were certified and 23,205 were denied. There have been 24,960 cases audited.
Summary of the Statistical Information Requested from Department of Labor, to American Immigration Lawyers Association
DOLETA Liaison Committee (Mar. 20, 2006), available at AILA InfoNet (DOC No. 06040660).
2 This situation is currently at issue before BALCA in its first PERM appeal. At issue is whether the DOL abused its
discretion after issuing a denial as a result of a “harmless error.” The employer advertised on a Sunday, but
indicated on Form 9089 that the advertisement was placed on a Monday. BALCA has agreed to review the matter en banc before
the full panel of judges and expedite the case. AILA has also been invited to submit an Amicus brief. See Update
Regarding PERM and BALCA (Mar. 16, 2006), available at AILA InfoNet (Doc. No. 06031661).
3 DOL PERM FAQ Set Round 6 (Feb. 16, 2006), available at
4 DOL PERM FAQ Set Round 5 (Aug. 8, 2005), available at
5 A new application can be re-filed at any time after a denial. 8 CFR § 656.24(e)(5).
6 Within 30 days of a denial, one can ask the Certifying Officer to reconsider use his/her discretion and reconsider
the case. 8 CFR § 646.26.
7 Within 30 days of the denial, one can also request reconsideration from BALCA. This must be submitted to the
Certifying Officer who then assembles an appeal file and forwards it toBALCA. 8 CFR § 656.26.
8 Section 106 of the American Competitiveness in the 21 st Century Act.
9 Supra note 1.
This article originally appeared on http://www.cyrusmehta.com on April 7, 2006.
About The Author
Elizabeth T. Reichard is an Associate at Cyrus D. Mehta and Associates, P.L.L.C, where she practices primarily in the area of immigration law. She is a graduate of the College of the Holy Cross and Case Western Reserve School of Law, where she was the Editor-in-Chief of the Journal of International Law. Ms. Reichard is the Secretary of the Board of Trustees of International Partners in Mission, an international non-profit organization working to empower women, children, and youth. She is admitted to the bar of the State of New York. The views express in this article do not necessarily represent the views of International Partners in Mission.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.
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