How to File a PERM Request for Reconsideration

An employer whose PERM labor certification has been denied can file a PERM request for reconsideration with the Certifying Officer within 30 days of the Final Determination, asking the same officer to take another look at the record and reverse the decision. It is an internal remedy, not a court proceeding, and the rules on what you can submit are narrower than most employers expect.¹

The 30-Day Deadline and How to File

The clock starts on the date printed on the Final Determination letter, not the date you receive it. Miss the 30-day window and the denial becomes permanent. There is no late-filing exception and no further right to challenge the decision.¹

Filing runs through the DOL’s Foreign Labor Application Gateway (FLAG). Open the denied case under the “Historical” tab, select “Request for Reconsideration” from the action menu, upload supporting documents, and submit. FLAG accepts PDF, Word, plain text, and Excel files up to 30 MB per upload, and you can upload multiple files. The system displays a confirmation when the submission goes through.²

Reconsideration or BALCA: You Cannot Do Both

After a Final Determination, the employer can either ask the Certifying Officer to reconsider or request review by the Board of Alien Labor Certification Appeals (BALCA). Not both. You have to state in writing which one you are choosing. If the submission is vague or asks for both, the DOL treats it as a reconsideration request by default.³

For most employers, reconsideration is the better first step. It preserves a narrow chance to put documentation in front of the CO that the CO may have overlooked. BALCA, by contrast, is limited to legal arguments on the existing record, so going straight there waives that opportunity.⁴ If the CO upholds the denial after reconsideration, a fresh 30-day window opens to request BALCA review of that second decision.³ Skipping straight to BALCA really only makes sense when the denial rests on a pure legal question no additional evidence could resolve.

One useful flexibility: if you are still inside the 30 days after filing a reconsideration request and want to change strategy, the request can be reclassified as a BALCA review request. Once the 30 days pass, that option closes.³

What Evidence You Can Actually Submit

This is where most reconsideration requests go wrong. For applications filed after July 16, 2007, the request can include only two categories of documentation:

Anything the DOL already received from the employer in response to a CO request, such as an audit response.
Documentation the employer did not have a chance to present to the CO previously, but only if it existed when the PERM application was filed and was maintained in the employer’s records as required by regulation.¹

The second category is the narrow exception people misread. It does not let you generate new evidence after the denial to patch a problem. It lets you show the CO a document that was already sitting in your file at the time of filing, typically because the CO raised an issue in the denial that was never flagged during audit. Even then, the DOL has clarified this exception cannot be used to modify Form ETA-9089 in any way.³

Your whole strategy hangs on what you can prove was already in the record: the recruitment report, the ads and tear sheets, resumes, interview notes, the prevailing wage determination, and DOL correspondence. Anything lost or discarded is anything you cannot argue with.

Building the Argument Around the Denial Reasons

Organize the letter around the specific grounds the CO listed in the Final Determination. Address each one in its own section. For each, explain exactly why the CO got it wrong. Vague disagreement gets nowhere.

The strongest arguments fall into three categories: the CO overlooked evidence already in the file, the CO misapplied a regulation, or the CO raised a new issue in the denial that the employer never had a chance to address during audit. Factual oversights are the most straightforward. If the denial says the employer failed to place a required newspaper advertisement, but the tear sheet was submitted during audit, point the CO to the page in the audit file where it appears and explain how the date satisfies the regulatory timeframe.

Every argument should tie back to a specific provision in 20 CFR Part 656. The CO reads dozens of these. If yours forces the officer to guess which regulation supports your position, you have already lost ground. A workable structure: the denial states X, regulation Y requires Z, the record shows the employer met Z, as demonstrated by [specific document].

Do not reargue the merits from scratch. The CO already knows the job and the worker. Skip the padding about company history and the worker’s credentials. Focus only on the errors in the denial. Length is not persuasion.

Harmless Error: A Narrow Tool

Employers sometimes argue that a minor mistake should not have caused denial because the regulatory purpose was still satisfied. BALCA has recognized this concept but applies it very narrowly, emphasizing that PERM is a strict compliance program and that an employer who fails to follow a requirement bears a “difficult burden of proving that its error was inconsequential.”⁵

Harmless error has worked for a clear typo on ad dates when tear sheets show the correct dates, or an immaterial omission like a missing signature date on a paper application. It consistently fails for leaving required information off the Notice of Filing, listing an incorrect CO address on the Notice of Filing, filing before the mandatory waiting period expired, or omitting a Federal Employer Identification Number. Those are treated as substantive violations, not clerical mistakes.⁵ If you are relying on harmless error, be honest about the odds and back it with documentation that makes the intended meaning obvious.

What the CO Can Do With Your Request

Under the regulation, the CO may reconsider the denial or treat the request as a BALCA appeal instead.¹ In practice, three outcomes are possible:

The CO reverses the denial. The labor certification is approved and the employer moves forward with the I-140 at USCIS.
The CO upholds the denial and issues a Notice of Decision explaining why. The employer then has a fresh 30-day window to request BALCA review.³
The CO forwards the case to BALCA rather than reconsidering, sending the file for independent review by administrative law judges.

You will receive written notice of whichever action the CO takes. If the CO upholds the denial and no BALCA request is filed within 30 days of the Notice of Decision, the case is closed and listed as denied.³

How Long Reconsideration Takes

As of April 2026, the DOL is reviewing reconsideration requests filed in November 2025, roughly a five-month wait from filing to review. Timelines shift, and the DOL sometimes works cases filed earlier than the posted month. For context, new PERM applications in analyst review are being adjudicated from January 2025, and audit reviews from December 2025.⁶

Those numbers matter for strategy. If a new PERM would take about as long as a reconsideration, weigh the value of the original priority date against the risk of losing months on a challenge that may not succeed.

Why Filing Can Matter Even When the Odds Are Low

A pending reconsideration request has direct consequences for workers in H-1B status approaching or past the six-year maximum. Under the American Competitiveness in the Twenty-First Century Act, an employer can request H-1B extensions in one-year increments if a PERM application was filed at least 365 days before the end of the worker’s sixth year.⁷

USCIS does not consider a DOL denial final until either the time to appeal expires without an appeal, or BALCA issues a decision. A PERM under active reconsideration or BALCA appeal is still considered pending, and the worker remains eligible for one-year H-1B extensions during that time.⁷ Keeping the case alive keeps the worker’s status alive. For many employers, that alone justifies filing.

Reconsider or Refile a New PERM?

Sometimes the smarter move is to abandon the denied application and start over. The tradeoffs are easy to underestimate.

The biggest cost of walking away is the priority date. The original PERM established a priority date that fixes the worker’s place in line for an immigrant visa. For workers from countries with long backlogs, that date can represent years of waiting. A new PERM gets a new, later date. If no legal challenge is active on the denied case, the old date is gone for good.

There is also a sequencing rule. An employer cannot file a new PERM for the same worker in the same job while a reconsideration request or BALCA appeal is pending. You either wait for the challenge to conclude or withdraw it before filing anew.³ Running both tracks at once is not possible.

Refiling makes the most sense when the denial exposed a fundamental problem the record cannot fix, such as a recruitment process that did not actually comply with the regulations. Reconsideration makes more sense when the denial rests on a factual mistake by the CO or a regulatory interpretation the employer can credibly challenge, especially when the priority date is valuable and the worker’s H-1B clock is running out.

1
eCFR. 20 CFR 656.24 – Labor Certification Determinations
2
Foreign Labor Application Gateway (FLAG). PERM FLAG User Guide
3
U.S. Department of Labor. PERM FAQs Round 14
4
eCFR. 20 CFR 656.26 – Board of Alien Labor Certification Appeals Review of Denials of Labor Certification
5
U.S. Department of Labor. Digest of PERM Decisions of the Board of Alien Labor Certification Appeals
6
Flag.dol.gov. Processing Times
7
U.S. Citizenship and Immigration Services. Supplemental Guidance Relating to Processing Forms I-140 Employment-Based Immigrant Petitions and I-129 H-1B Petitions, and Form I-485 Adjustment Applications Affected by the American Competitiveness in the Twenty-First Century Act of 2000 (AC21)