A denied labor certification puts an employer on a clock it did not choose, and the instinct is to appeal, because appealing feels like doing something. Anyone working out PERM denied what to do should start somewhere else. The regulations make fighting and rebuilding mutually exclusive for a period, and that single rule should drive the decision more than anything else.
PERM Denied: What to Do Has Three Answers
The regulations give two ways to challenge the decision and one way around it. A request for reconsideration goes back to the Certifying Officer under 20 CFR 656.24(g)(1). A request for review goes to the Board of Alien Labor Certification Appeals under 20 CFR 656.26(a).
The third answer is the one the regulation names directly: if a certification is denied and no request for review is made, a new application may be filed at any time. That is the refile.
The first two are less separate than they look. The Certifying Officer may, in his or her discretion, reconsider the determination or treat the request as a request for review by the Board instead. Anyone mapping out PERM denied what to do should account for that discretion.
Why Reconsideration Cannot Repair a Real Defect
Reconsideration is narrower than its name suggests. The Certifying Officer may consider only documentation the Department actually received from the employer in response to a request from the Certifying Officer, or documentation the employer did not have an opportunity to present previously but that existed at the time the application was filed and was maintained under the recordkeeping rules.
Read that twice. Evidence created after filing is not on the table. Reconsideration is for showing the officer was wrong on the record that already existed, not for repairing recruitment that was defective when it ran. The regulation goes further: the Certifying Officer will not grant reconsideration at all where the deficiency that caused the denial resulted from disregarding a system prompt or other direct instruction.
BALCA Reviews the Record, Not the Case
The same constraint governs the appeal. Under 20 CFR 656.27(c), the Board must review a denial on the basis of the record upon which the decision was made, the request for review, and any Statements of Position or legal briefs submitted. It must then affirm the denial, direct the Certifying Officer to grant the certification, or direct that a hearing be held.
So an appeal cannot cure a defective filing. It can only argue that the file the officer already had supported certification. When the defect is real, that argument does not exist.
The Rule That Decides PERM Denied What to Do
Here is the provision that should drive the analysis, and the regulation requires your denial notice to spell it out for you. The Final Determination form must advise that a new application in the same occupation for the same alien cannot be filed while a request for review is pending with the Board.
That is the tradeoff, and it arrives in the same envelope as the bad news. Appealing does not run alongside a refile; it blocks one. So the question is never simply whether the appeal might win. It is whether the appeal is likely enough to win to justify freezing the only other route while it runs.
Two deadlines bound the choice, and both run 30 days. The employer may request reconsideration within 30 days from the date of issuance of the denial. A request for review must be made within 30 days of the determination, and failing to request review in that window constitutes a failure to exhaust administrative remedies, after which the denial becomes the Secretary’s final determination.
Deciding Fight or Rebuild
The honest version of PERM denied what to do starts with one question: was the record the officer had actually sufficient? If a compliant application was denied on a misreading, reconsideration or review can work, and the pre-existing recruitment file may be submitted to support it. If the requirement was not justified, the recruitment ran outside its window, an advertisement did not match the application, or a worksite was not properly disclosed, then the defect is real and no appeal reaches it.
A rebuild of the same case cannot begin until review is no longer pending, which is what makes a low-odds appeal expensive in time as well as fees, particularly if the Board directs a hearing. Working out PERM denied what to do is therefore a timing question as much as a legal one, particularly where the employee’s status depends on milestones the green card process has to hit. Before you retain anyone for a review like this, it is worth knowing what to ask an immigration attorney before you hire one.
MW Law stands behind its own preparation with a 50% fee-back accountability policy on qualified petitions, and eligibility is determined during the initial consultation. That is a commitment about my firm’s work, not a prediction about any government decision. No attorney controls a Department of Labor determination.
Trusted by 250+ clients, my firm works with businesses to unlock your potential, not just manage your file. Our PERM labor certification counsel covers the full process from prevailing wage through certification.
Ready to work with an attorney who puts your outcome first? Contact Us Today
Frequently Asked Questions
Can we refile while our appeal is pending?
No. The regulation states that a new application in the same occupation for the same alien cannot be filed while a request for review is pending with the Board. That single sentence answers most of PERM denied what to do, and it is why the decision to appeal has to be made deliberately rather than reflexively.
Can we submit new evidence with a reconsideration request?
Only in a narrow sense. The Certifying Officer may consider documentation the Department actually received from the employer in response to a request from the Certifying Officer, or documentation that existed when the application was filed and was maintained under the recordkeeping rules but that the employer had no earlier opportunity to present. Material created after filing does not qualify.
About the Author
Michelle Weltz is the founder of MW Law LLC, a boutique immigration firm at 680 N Lake Shore Drive in Chicago. She is a 2024-2025 Lawyers of Distinction honoree and a multi-state licensed immigration attorney serving multinational corporations, high-growth startups, and individual entrepreneurs establishing a U.S. presence.
Every client works directly with Michelle, who leads all strategy, filings, and communications. She volunteers with Centro Romero, a Chicago nonprofit serving immigrant and refugee communities. Learn more about Michelle Weltz and MW Law’s approach. Contact her at contact@mwlawllc.com or (312) 909-8253.
Works Cited
- U.S. Department of Labor. 20 CFR § 656.24, Labor certification determinations. Electronic Code of Federal Regulations. ecfr.gov
- U.S. Department of Labor. 20 CFR § 656.26, Board of Alien Labor Certification Appeals review of denials of labor certification. Electronic Code of Federal Regulations. ecfr.gov
- U.S. Department of Labor. 20 CFR § 656.27, Consideration by and decisions of the Board of Alien Labor Certification Appeals. Electronic Code of Federal Regulations. ecfr.gov
This article is for general information only and is not legal advice. Every case turns on its own facts. For a second opinion on a denied or audited PERM filing, contact MW Law LLC at contact@mwlawllc.com or (312) 909-8253.