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Preventing And Responding To The PERM Explosion

by Elizabeth T. Reichard

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. [1] 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. [2] 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 subsequently denied.

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. [3] The DOL has provided instructions for withdrawing the application through the online system. [4] 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.

Practice Management

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:

  1. Make Initial Inquiries & Send Engagement Letter Describing the PERM Process

    1. 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?

    2. Is the employee eligible to obtain a green card?

    3. Is the employer willing to sponsor the alien, after being informed of its duties and responsibilities in the entire green card process?

  2. Develop Job Description and Requirements

    1. 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

    2. Keep in mind prevailing wage determinations, EB-2 v. EB-3, SVP, Alternative Experience, language requirements, business necessity, on-the-job experience, etc.

  3. Request Prevailing Wage Determination from State Workforce Agency

  4. Place Job Order with State Workforce Agency for at Least 30 Days

  5. Place Physical Posting for Ten Business Days at Work Site

  6. Place 2 Sunday Newspaper Advertisements

  7. Place Three Additional Advertisements

  8. Instruct Employer how to engage in Resume Review, keeping in mind the bona fides of this effort

  9. Application Preparation during the 30 Day Pre-filing Period

    1. Set-up PERM Account

    2. Prepare Audit File and Supporting Documentation

    3. Prepare Draft Form 9089

  10. Submit PERM Application within 3 Months of First Advertisement, if possible

    1. Inform Client that the case has been filed and that the DOL will contact employer to confirm the filing

    2. 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 certain advertisements.

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 re-advertise.

Damage Control

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, [5] file a Request for Review from the Certifying Officer, [6] or file an Request for Review (a.k.a. appeal) with the Board of Alien Certification Appeals (BALCA). [7] 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. [8] 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. [9] 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 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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