Assessing options after the labor certification denials

They Denied My Labor Certification (PERM). Now What?

A PERM denial hurts—but it’s not the end. Start by getting the denial letter and audit file (recruitment proof, screenshots, resumes, notes). Your options and timing are tight, so move carefully and quickly.

1) Understand the “why”
Common grounds:

Recruitment defects (wrong newspaper, stale timelines, missing content, bad SWA posting).
Prevailing Wage mismatches (wrong SOC code/level; offered wage below PWD).
Job requirements not normal or not justified by business necessity (e.g., foreign language, unduly restrictive tools/skills).
U.S. worker rejection reasons not lawful or not documented.
Form errors (wrong FEIN/addresses, dates out of order, typographical inconsistencies).

2) Choose a path (deadlines matter)

Request for Reconsideration to the Certifying Officer (CO): due within 30 days of denial. Attach evidence already in the record; you normally cannot add new recruitment after the fact.
Request for Review (Appeal) to BALCA: also 30 days if reconsideration is denied or bypassed. Expect a paper record; BALCA looks at whether the CO applied the rules correctly.
Strategic Refile: often fastest if the flaw is curable (e.g., redo recruitment, fix SOC/wage, clean timelines). Refresh all recruitment and ensure the PWD and postings are current.

3) Protect the foreign national’s status

H-1B max-out planning:
- 1-year extensions require a PERM or I-140 filed ≥365 days before the end of year 6 (legacy AC21 rule).
- 3-year extensions follow I-140 approval when immigrant visa numbers are backlogged.
  A denial resets your strategy—calendar new filing dates to preserve extensions.

4) Tighten the next case

Recalibrate PWD (correct SOC, level, wage).
Rebuild recruitment: two Sunday ads (or acceptable alternatives), SWA job order, internal posting, and three additional methods for professionals—all within PERM windows.
Document lawful, job-related rejections; memorialize each resume review.
If requirements exceed the norm, draft a business necessity memo (production environment, client mandates, safety/compliance, proprietary stack).
Align Form 9089 to the recruitment (titles, duties, skills, travel %).

5) Practical tips
Create a PERM calendar, keep screenshots/tear sheets, and maintain a clean audit file. When time is short, a refile + H-1B extension plan often beats a long appeal. We can diagnose the denial, triage status risk, and relaunch a decision-ready PERM that avoids the original pitfalls.