What Happens After PERM Is Filed: Audit, I-140, and Green Card

After a PERM application is filed with the Department of Labor, the case sits in a review queue that currently averages about 503 calendar days before a decision. What happens after PERM is filed unfolds in predictable stages: the DOL either certifies the application, opens an audit, or denies it; if certified, the employer has exactly 180 days to file Form I-140 with USCIS; and the worker then waits for a visa number before completing the green card through adjustment of status or consular processing. Each stage has its own deadlines, and at least one of them, if missed, ends the case entirely.

The DOL Wait and What It Produces

The Department of Labor’s Office of Foreign Labor Certification reviews PERM applications to confirm that no qualified U.S. workers are available for the position at the offered wage.¹ As of early 2026, analyst review averages 503 calendar days from filing to decision. Audited cases run on a separate, slower track. Those averages shift, so it’s worth checking the DOL’s FLAG system periodically for the current wait.²

During this stretch there is nothing to file. The application sits in queue until a Certifying Officer reviews it. That review ends in one of three outcomes: certification, an audit (a request for more information), or denial.

If Your Case Is Audited

An audit is the most common complication. The DOL selects cases randomly or because something in the application raised a flag, such as unusual job requirements, a foreign language requirement for a role that would not normally need one, or recent layoffs in the same occupation. The employer receives an audit letter listing the specific documents needed, and the response deadline is 30 calendar days from the date on that letter.³ Typical requests include copies of all resumes received during recruitment, proof that advertisements ran as required, and a recruitment report explaining why any U.S. applicants were rejected.

Missing that 30-day deadline is fatal. The DOL will deny the application, and the employer loses the right to appeal to the Board of Alien Labor Certification Appeals. Blowing the audit deadline does not just slow things down; it removes the normal appeals process entirely.³

Supervised recruitment is rarer and more burdensome. It usually follows an unsatisfactory audit response or a finding that the original recruitment was inadequate. Under supervised recruitment, the Certifying Officer controls every step of the recruitment process, and the added oversight can extend the timeline by six months or more.

What the Employer Must Handle While Waiting

Federal regulations bar employers from passing PERM costs to the sponsored worker. The employer must pay all expenses tied to the labor certification, including advertising and attorney fees for the PERM filing itself.¹ When one attorney represents both employer and worker on the PERM case, the employer bears all legal costs. The worker may hire a separate personal immigration attorney at their own expense. Later government filing fees, such as those for the I-140 or I-485, are not subject to the same prohibition and are sometimes negotiated between employer and employee.

Employers must also keep copies of the filed PERM application and all supporting recruitment documentation for five years from the filing date.¹ An audit can arrive months after filing, and an employer without recruitment records at that point is heading for a denial.

After Certification: The 180-Day I-140 Clock

When the DOL certifies the application, the clock starts immediately. The employer has exactly 180 calendar days from the certification date to file Form I-140, Immigrant Petition for Alien Workers, with USCIS. If that window closes without a filing, the labor certification expires permanently. There is no extension and no grace period.⁴ This is the point at which the case moves from the Department of Labor to USCIS.

The I-140 filing must include the original two-page Final Determination from the DOL, along with evidence that the employer can pay the offered wage.⁵ Employers can pay $2,965 for premium processing on most employment-based categories, which guarantees USCIS action within 15 business days.⁶ Regular I-140 timing varies widely, and after a labor certification that took over a year, many employers pay for the faster route.

Proving the Employer Can Pay the Offered Wage

USCIS requires the petitioning employer to show a continuing ability to pay the offered wage from the priority date through the date the worker becomes a permanent resident.⁷ This is one of the most common places I-140 petitions fail, especially for smaller employers.

For each year from the priority date, the petition must include one of the following: federal tax returns with all schedules, annual reports (SEC Form 10-K for publicly traded companies), or audited financial statements with the auditor’s report. Companies with 100 or more employees can substitute a statement from a financial officer.⁷ If the worker is already employed at the offered wage, W-2 forms help the case, but they do not replace the underlying financial documents.

Your Priority Date and the Visa Queue

The priority date is the date the DOL accepted the PERM application for processing, and it is arguably the most important date in the entire green card timeline.⁸ It sets the worker’s place in line for an immigrant visa number. For some countries and preference categories, the wait between PERM filing and visa availability can run years or decades.

The Department of State publishes a monthly Visa Bulletin showing which priority dates are eligible for processing. When a worker’s priority date is “current,” a visa number is available and the final steps toward permanent residency can move forward. Workers born in countries with heavy demand for employment-based visas, notably India and China in the EB-2 and EB-3 categories, face the longest backlogs.

If the worker is the beneficiary of a previously approved I-140 from an earlier PERM filing, they may be entitled to keep that earlier priority date on a new petition. The new I-140 should include a copy of the prior approval notice and a request to carry the earlier date forward.⁵

Staying in H-1B Status Past Six Years

Many PERM beneficiaries hold H-1B visas, which generally cap at six years. Two provisions let workers extend beyond that limit while the green card process runs.

If a PERM application or I-140 petition has been pending for at least 365 days, the employer can request H-1B extensions in one-year increments beyond the six-year cap.⁹ The 365-day count runs from the date the labor certification or I-140 was filed, and the extension must be requested before the current H-1B expires.

A more generous extension is available for workers with an approved I-140 who cannot file for adjustment of status only because their priority date is not current under per-country visa limits. In that case, the employer can request extensions in three-year increments. This matters most for Indian and Chinese nationals facing long waits for their priority date to become current.

Finishing the Green Card

Once the I-140 is approved and a visa number is available, the worker completes the green card through one of two routes.

Adjustment of Status Inside the U.S.

Workers already in the United States file Form I-485, Application to Register Permanent Residence or Adjust Status, with USCIS.¹⁰ The process typically involves biometrics and sometimes an interview at a local USCIS office. While the I-485 is pending, applicants can request employment authorization and advance parole through the same filing.

If a visa number is immediately available when the I-140 is filed, the employer and worker may file the I-140 and I-485 together. Concurrent filing can save months, but it requires a visa number to be current on the date both forms are submitted.¹¹

Consular Processing Outside the U.S.

Workers abroad, or those who prefer not to adjust status in the U.S., go through consular processing. After the I-140 is approved and a visa number is available, the case moves to the National Visa Center and then to a U.S. embassy or consulate for an interview. If approved, the worker receives an immigrant visa and enters the United States as a lawful permanent resident.

Changing Jobs Under AC21

The green card process is tied to a specific employer and job, but that lock loosens once the I-485 has been pending for 180 days or more. Under the American Competitiveness in the Twenty-First Century Act, a worker can change employers without losing their place in line, provided the new job is in the same or a similar occupational classification as the one on the original petition.¹²

To port, the worker files Supplement J to Form I-485 confirming a valid job offer from the new employer. The underlying I-140 must be approved (or pending and ultimately approved), and the I-485 must have been properly filed and pending for the full 180 days when USCIS receives the portability request.¹²

If the original employer withdraws the I-140 after the I-485 has been pending 180 days, the petition generally remains valid for portability unless USCIS revokes it on substantive grounds such as fraud. A routine employer withdrawal alone does not kill the adjustment application, as long as the worker secures a qualifying new position.

If the PERM Application Is Denied

A denial is not necessarily the end. The employer has 30 calendar days from the date on the Final Determination letter to request reconsideration from the Certifying Officer, or skip reconsideration and appeal directly to the Board of Alien Labor Certification Appeals.¹³

Reconsideration is a second look by the same officer. It can work when the denial rested on a misunderstanding or a narrow technical issue, but the employer generally cannot submit new evidence or change what was on the original application. If the officer upholds the denial, the employer has another 30 days to appeal to BALCA. BALCA reviews the case on the existing record and does not generally admit new evidence.

Instead of appealing, the employer can file a new PERM application, correcting whatever sank the first case. There is no limit on refilings. The trade-off is the priority date: a new PERM gets a new priority date based on when the DOL accepts it, sending the worker to the back of the visa queue. If the worker had a previously approved I-140 from the original PERM, they may recapture that earlier date on a subsequent I-140 filing.⁵ If the first case never reached I-140 approval, the earlier date is gone, and that reality should weigh heavily in the choice between appealing and starting over.

1
eCFR. 20 CFR Part 656 – Labor Certification Process for Permanent Employment of Aliens in the United States
2
U.S. Department of Labor. Processing Times – Flag.dol.gov
3
eCFR. 20 CFR 656.20 – Audit Procedures
4
U.S. Citizenship and Immigration Services. I-140, Immigrant Petition for Alien Workers
5
U.S. Citizenship and Immigration Services. Petition Filing and Processing Procedures for Form I-140, Immigrant Petition for Alien Workers
6
U.S. Citizenship and Immigration Services. How Do I Request Premium Processing?
7
U.S. Citizenship and Immigration Services. USCIS Policy Manual Volume 6, Part E, Chapter 4 – Ability to Pay
8
U.S. Citizenship and Immigration Services. Visa Availability and Priority Dates – Section: Priority Dates for Employment-Based Preference Cases
9
U.S. Citizenship and Immigration Services. FAQs for Individuals in H-1B Nonimmigrant Status
10
U.S. Citizenship and Immigration Services. Adjustment of Status
11
U.S. Citizenship and Immigration Services. Concurrent Filing of Form I-485
12
U.S. Citizenship and Immigration Services. USCIS Policy Manual Volume 7, Part E, Chapter 5 – Job Portability after Adjustment Filing and Other AC21 Provisions
13
Employment and Training Administration. PERM FAQs Round 14 – Withdrawals, Requests for Reconsideration or BALCA Review, and Pay Differentials