Is the Department of Labor Creating New PERM Requirements Through Adjudication?
Written by Michal Terebelo
The PERM labor certification process has always required employers to navigate a highly regulated and detail-oriented framework. Employers sponsoring foreign nationals for permanent residence must satisfy strict recruitment requirements, demonstrate that no able, willing, qualified, and available US workers exist for the offered position, and establish that the foreign national meets the minimum requirements for the position. While the process is complex, employers have traditionally been able to rely on a fundamental premise: the rules governing labor certification are found in the applicable regulations, official forms, and agency guidance.
Recent PERM denials involving foreign educational credential evaluations have called that premise into question. Over the past several months, employers and immigration practitioners have reported an increase in denials involving Section G.10 and Appendix C of Form ETA-9089. In these cases, employers indicated that a credential evaluation had been used to establish that a foreign degree was equivalent to the required US degree. Nevertheless, applications were denied because the Department of Labor (DOL) concluded that insufficient information had been provided regarding the credential evaluation service itself.
At first glance, these denials may appear to concern a narrow procedural issue. In reality, they raise a much broader question: Is the Department of Labor effectively imposing new PERM filing requirements through adjudication rather than through regulation or formal guidance? While it remains too early to determine whether these denials represent an official policy shift or an emerging adjudication trend, they deserve careful attention from employers and practitioners alike. More importantly, they raise important concerns regarding regulatory consistency, fair notice, and the role of agency discretion in the labor certification process.
The Traditional Role of Credential Evaluations in PERM Cases
Credential evaluations have long been a routine part of employment-based immigration practice. When a position requires a US degree and the foreign worker earned a degree outside the United States, employers frequently obtain a professional credential evaluation to determine whether the foreign education is equivalent to the required US degree. Such evaluations are not unique to the PERM process. They are regularly utilized in H-1B petitions, immigrant visa petitions, and other employment-based immigration matters. Historically, the focus has been straightforward: does the foreign worker possess educational credentials that satisfy the employer’s minimum requirements? The credential evaluation serves as evidence supporting that determination. The evaluation itself is not the requirement; rather, it is the tool used to establish compliance with the requirement.
Practitioners have disclosed the outcome of the evaluation. If a foreign degree was determined to be equivalent to a US degree, that equivalency was reflected on the application. The identity of the evaluator and the methodology used to reach the conclusion were rarely central to the analysis because neither the regulations nor the form instructions explicitly required such disclosures. Recent denials suggest that some adjudicators now expect this additional information. The concern is not necessarily that employers are being asked to provide more detail. Employers can adapt to evolving documentation expectations. The concern is that these expectations do not appear to be clearly articulated within the governing authorities upon which employers rely when preparing PERM applications.
What the Regulations Actually Require
Whenever a new adjudication trend emerges, the starting point must be the regulations themselves.
The denials at issue often cite 20 CFR § 656.3, which addresses educational requirements in labor certification cases. The regulation provides that if an employer is willing to accept a foreign degree equivalent to a required US degree, that willingness must be clearly stated on the application. Likewise, if an employer is willing to accept work experience in lieu of a degree, that alternative qualification must be disclosed on the application. These requirements are straightforward and have been understood by practitioners for years.
What is noteworthy is what the regulation does not say. The regulation does not expressly require employers to identify a credential evaluation company by name. It does not require disclosure of the evaluator’s qualifications. It does not require a description of the evaluator’s methodology. Nor does it require a narrative explaining how the evaluator reached a particular equivalency determination.
Similarly, the ETA-9089 instructions only direct employers who answer “Yes” to Question G.10 to use Appendix C to explain what education, experience, or combination of qualifications was used to establish that the foreign worker meets the position’s minimum requirements. The instructions do not expressly require identification of the credential evaluation provider or a detailed explanation regarding the evaluation process itself. Yet recent denials appear to focus precisely on these omissions. This disconnect between the text of the governing authorities and the apparent expectations of adjudicators is what makes the issue significant.
Form Versus Substance
One of the most concerning aspects of these denials is that they frequently do not appear to involve any genuine dispute regarding the foreign worker’s qualifications. In a recent denial from the DOL, the employer clearly indicated that it would accept a foreign degree equivalent to the required US degree. The application disclosed that a credential evaluation had been utilized. The Appendix C narrative provided a detailed discussion of the foreign worker’s educational history, academic coursework, institutions attended, and degree program completed. There was no allegation that the worker lacked the required education. There was no finding that the credential evaluation was unreliable. There was no determination that qualified US workers existed for the position. Instead, the denial focused on the fact that the Appendix C narrative did not expressly identify the credential evaluation service by name.
From a practitioner’s perspective, this raises an important question. Should an otherwise approvable labor certification application be denied because it omits information that neither the regulations nor the form instructions expressly require? When a denial is based primarily on the absence of information that is not clearly mandated by regulation, concerns regarding fairness and consistency naturally arise. The PERM process was designed to evaluate substantive eligibility requirements, not as an exercise in anticipating unwritten documentation preferences.
The Administrative Law Concern
Although this issue arises in the immigration context, the underlying concern extends beyond immigration law. Administrative agencies possess broad authority to interpret and enforce regulations. At the same time, regulated parties are entitled to fair notice regarding the standards governing their conduct. Employers preparing PERM applications rely upon the text of the regulations, official form instructions, agency guidance, and established adjudication practices. These sources provide the framework within which employers make important business and legal decisions. When adjudications appear to impose expectations that cannot readily be identified within those sources, employers face a difficult challenge. How can employers ensure compliance with requirements that have never been clearly articulated?
This concern is not simply theoretical. The Supreme Court and federal courts have repeatedly emphasized the importance of fair notice in administrative enforcement. Regulated parties should generally be able to determine their obligations by reviewing the governing regulations and official guidance. To be clear, no one is suggesting that DOL lacks authority to scrutinize credential evaluations or verify educational equivalency claims. Such scrutiny is entirely appropriate. The issue is whether employers are receiving adequate notice regarding the information they must provide to satisfy those expectations. If additional disclosures are now expected, employers would benefit from clear guidance identifying precisely what information should be included and why.
Why Employers Should Care
Some observers may view these denials as technical procedural disputes that primarily affect immigration attorneys. That view would be mistaken. The consequences of a PERM denial extend far beyond the legal department. A labor certification application often represents years of workforce planning. Employers may have invested substantial resources in recruiting, training, and retaining a key employee. The sponsored worker may have spent years waiting for an opportunity to pursue permanent residence. When a denial occurs, the effects are immediate:
- Additional legal fees
- Requests for reconsideration
- Potential BALCA appeals
- Delays in immigrant visa processing
- Workforce planning disruptions
- Employee retention concerns
- Increased uncertainty for employees and their families
For multinational employers competing for highly skilled talent, predictability matters. A labor certification system that produces inconsistent outcomes based upon evolving documentation expectations creates uncertainty that can affect long-term workforce planning and talent retention strategies. This is particularly true in today’s environment, where PERM processing times already require significant patience and planning.
What BALCA May Ultimately Say
If these denials continue, some will inevitably reach the Board of Alien Labor Certification Appeals (BALCA). BALCA often distinguishes between substantive deficiencies and technical defects. While compliance with regulatory requirements remains essential, BALCA decisions have emphasized the importance of evaluating applications based upon the record as a whole rather than focusing exclusively on isolated technical omissions. Whether BALCA would view the omission of a credential evaluator’s name as a material deficiency remains to be seen.
However, the broader principle is important. The labor certification process should focus on whether the employer has satisfied the regulatory requirements and whether the foreign worker meets the employer’s minimum qualifications. When technical narrative issues begin to overshadow substantive eligibility determinations, questions regarding proportionality and fairness inevitably arise.
Practical Recommendations for Employers and Practitioners
Regardless of whether these denials ultimately withstand scrutiny, employers must operate within the reality of the current adjudication environment. Accordingly, a more conservative approach may be warranted. When a credential evaluation is used, practitioners should consider including:
- The name of the credential evaluation service
- Confirmation that the evaluator specializes in foreign educational credentials
- A brief description of the basis for the equivalency determination
- Clarification regarding whether equivalency is based solely on education or a combination of education and experience
These recommendations are not an acknowledgment that such disclosures are required by regulation. Rather, they represent practical risk-management measures intended to reduce the likelihood of avoidable denials while the issue continues to develop. In today’s adjudication environment, anticipating questions before they are asked may be just as important as satisfying the minimum regulatory requirements.
Looking Ahead
The recent increase in credential evaluation denials may ultimately prove to be a temporary adjudication trend. It may also signal a broader shift toward heightened scrutiny of educational equivalency issues within the PERM process. At present, the answer remains unclear. What is clear is that employers deserve transparency. If the Department of Labor believes additional credential evaluation disclosures should be required, employers should receive clear guidance describing those requirements. Such guidance would promote consistency, improve adjudicative efficiency, and reduce unnecessary litigation and reconsideration requests. Most importantly, it would allow employers to comply with the rules before filing rather than discovering new expectations only after receiving a denial.
As practitioners, we can adapt to changing standards. We can revise forms, update filing practices, and adjust compliance procedures. What becomes far more difficult is advising employers when the governing expectations are no longer readily discernible from the regulations themselves. The labor certification system functions best when employers can reasonably predict how applications will be evaluated before they are filed. Transparency, consistency, and fair notice are not merely administrative ideals. They are essential components of a fair and effective PERM program. Whether these recent denials represent a temporary anomaly or the beginning of a broader policy shift, one thing is certain: employers and practitioners alike will be watching closely.
The content of this article is intended only to provide a general guide to the subject matter. It should not be construed as legal advice. Please contact FGI at info@employmentimmigration.com or (+1) 248.643.4900 for guidance if you have specific questions.