PERM Requests for Information: What Employers Should Know When DOL Scrutinizes the Job Opportunity
A Department of Labor Request for Information in a PERM labor certification case can reach well beyond proof that advertisements were placed.
Depending on the inquiry, the U.S. Department of Labor may ask an employer to document the underlying job opportunity, explain how the position fits within its business operations, identify who historically performed the duties, substantiate the recruitment process, and demonstrate that the permanent position described on ETA Form 9089 is the same position that was actually offered to U.S. workers.
For employers, the central issue is often consistency.
The PERM application, the employer's business records, the job duties, the recruitment materials, the Notice of Filing, and the recruitment results should all support the same bona fide permanent, full-time job opportunity.
An RFI should therefore not be approached simply as a request to send DOL additional documents. A strong response explains why the evidence matters, how the documents support the representations already made, and how the pieces fit together.
What Is a PERM Request for Information?
A PERM Request for Information, commonly referred to as an RFI, is a request from the Department of Labor seeking additional information or documentation concerning a pending permanent labor certification application.
An RFI is not necessarily the same procedural mechanism as a formal audit under 20 C.F.R. § 656.20. Nevertheless, both may require an employer to substantiate representations made in the PERM application and provide supporting evidence concerning the job opportunity and recruitment.
Depending on the case, DOL may ask about:
-
the employer's business operations;
-
the existence and nature of the offered position;
-
why the employer requires the position;
-
how the duties fit within the organization;
-
who previously performed the relevant duties;
-
whether the position is permanent and full-time;
-
recruitment conducted for the position;
-
the Notice of Filing;
-
the employer's recruitment report;
-
U.S. worker applications and their disposition; and
-
other facts underlying representations made on ETA Form 9089.
The response should be tailored to the questions DOL actually asks. Providing large quantities of unrelated documentation is not a substitute for answering the inquiry directly.
Why Is DOL Asking About the Employer's Business Need for the Position?
PERM requires a bona fide job opportunity that has been and remains clearly open to U.S. workers.
Under 20 C.F.R. § 656.10, the employer makes a series of attestations concerning the offered position, including that the job opportunity is full-time and permanent and that it has been and remains clearly open to any U.S. worker.
When DOL asks about the employer's operations, organizational structure, or need for the position, the issue may therefore be more fundamental than whether recruitment advertisements technically complied with the regulations.
DOL may effectively be asking:
Does this position make sense in the context of this employer's actual business?
That question can become particularly important when:
-
the employer is relatively small;
-
the position is newly created;
-
the job title is unusual for the employer's industry;
-
several employees historically divided the duties;
-
an owner or manager previously performed some of the functions;
-
the company has recently expanded or reorganized; or
-
the position is specialized in relation to the employer's overall operations.
None of these circumstances, standing alone, establishes that a position is not bona fide.
They can, however, make the employer's supporting documentation significantly more important.
How Can an Employer Establish That a PERM Position Is Bona Fide?
The response should ordinarily connect the offered position to the employer's actual operations.
Depending on the facts, relevant evidence may include:
-
organizational charts;
-
descriptions of departments and reporting relationships;
-
payroll or personnel records;
-
business licenses or corporate records;
-
contracts or customer relationships;
-
evidence of business activity;
-
project documentation;
-
records demonstrating business growth;
-
evidence showing how relevant functions were previously allocated; and
-
declarations from knowledgeable company officials explaining the position and its operational context.
The objective is not to overwhelm DOL with corporate documents.
The objective is to establish a logical and evidentiary bridge between what the company actually does and why the permanent position described on ETA Form 9089 genuinely exists.
A detailed employer declaration can be particularly useful, but it should be corroborated where practicable. A conclusory statement that the employer “needs” the position is less persuasive than an explanation tied to concrete business operations and supported by contemporaneous evidence.
Can a Newly Created Position Qualify for PERM?
Yes. A position does not become impermissible merely because the employer has never previously employed anyone under that exact title.
Businesses evolve.
As a company grows, functions previously handled by owners, managers, employees in other positions, or outside providers may justify the creation of a dedicated permanent position.
The more useful inquiry is not:
Has this exact job title existed before?
It is:
Did the underlying business functions exist, and can the employer credibly explain why those functions now justify a dedicated permanent position?
For example, duties may historically have been divided among several individuals. Increasing workload, business complexity, expansion, regulatory obligations, customer demand, or organizational changes may later justify consolidating those functions into a single full-time role.
Where those are the actual facts, the response should explain that evolution clearly and support it with contemporaneous business evidence.
The explanation should not be created after the fact merely to answer the RFI.
Who Performed the Duties Before the PERM Position Was Created?
This can be one of the most important questions in an RFI involving a newly created position.
If the employer states that it now requires a full-time employee to perform certain functions, DOL may reasonably want to know how those functions were handled previously.
The answer may be that:
-
a company owner performed them;
-
a manager absorbed them in addition to other responsibilities;
-
several employees divided the work;
-
outside professionals or vendors performed some functions;
-
another position previously included some of the duties; or
-
business growth created functions that previously did not exist at the same scale.
The response should be precise.
Where multiple individuals historically performed portions of the offered duties, it may be useful to identify which functions were performed by whom and explain how the permanent position consolidates or assumes those responsibilities.
That analysis can be substantially more persuasive than simply asserting that the new position is necessary.
Can an Employer Add More Detailed Job Duties in Response to a PERM RFI?
An employer may explain the duties listed in the PERM application, but it should be cautious about materially changing them.
This distinction is important.
Providing factual examples or additional context explaining an existing duty is not necessarily the same as adding an entirely new responsibility.
For example, if ETA Form 9089 states that the employee will prepare financial analyses, the employer may be able to explain the types of analyses involved, their business purpose, and how management uses them.
That is different from responding to an RFI by newly asserting that the employee will supervise staff, manage a department, develop software, negotiate contracts, or assume other material duties that were not part of the position tested in the labor market.
PERM recruitment tests the availability of U.S. workers for the particular job opportunity described by the employer.
An RFI response should therefore document and explain the filed position, not redesign it after recruitment has concluded.
An employer should not assume that a material defect in the original job opportunity can simply be cured by rewriting the position after the labor-market test has already occurred.
The same caution applies to minimum education, experience, training, skills, and other job requirements.
Why Is Consistency With ETA Form 9089 So Important?
A strong PERM response should tell one coherent story.
DOL should be able to move from:
ETA Form 9089 → recruitment → employer records → RFI response
without encountering material inconsistencies concerning the offered position.
Potential inconsistencies may involve:
-
job duties;
-
minimum requirements;
-
work location;
-
employer identity;
-
job title;
-
wage information;
-
supervisory responsibilities;
-
organizational relationships;
-
recruitment dates; or
-
descriptions of how the position functions within the business.
Some discrepancies may have innocent explanations.
But unexplained inconsistencies can create problems because PERM depends heavily on employer attestations and a labor-market test conducted before the application is filed.
The strongest RFI response is therefore not necessarily the one containing the largest volume of evidence. It is the one in which the evidence consistently supports the representations already made.
What Recruitment Documents May Become Important in a PERM RFI?
The recruitment file should be reviewed carefully and compared against ETA Form 9089.
Depending on the occupation and the recruitment procedures used, relevant documentation may include:
-
the State Workforce Agency job order;
-
newspaper advertisements;
-
additional recruitment steps required for professional occupations;
-
employer or job-search website postings;
-
the Notice of Filing;
-
proof of posting;
-
advertisement invoices or tear sheets;
-
the recruitment report;
-
resumes or applications received; and
-
documentation concerning the employer's consideration of applicants.
Employers should maintain the complete PERM record even when no U.S. workers apply.
An empty applicant pool does not eliminate the employer's obligation to demonstrate that the required labor-market test was properly conducted.
What If No U.S. Workers Applied for the PERM Position?
If no U.S. workers applied, the employer should state that accurately and submit the recruitment evidence showing how the position was advertised.
There is no need to manufacture an applicant-evaluation process that never occurred.
If there were:
-
no resumes;
-
no applications;
-
no interviews; and
-
no U.S. worker rejections,
the response should say so clearly.
The important issue is whether the employer conducted the required recruitment in good faith and provided U.S. workers with the required opportunity to apply.
The recruitment report remains important even when recruitment produces no applicants.
Under 20 C.F.R. § 656.17(g), the employer must prepare a recruitment report describing the recruitment steps undertaken and the results achieved. Where applicable, the report must also identify the number of U.S. workers rejected and summarize the lawful, job-related reasons for rejection.
Why Is the PERM Recruitment Report Important?
The recruitment report is a required, signed component of the PERM record, not merely an informal summary of recruitment.
BALCA has affirmed denials where the recruitment report itself was unsigned, even where other accompanying documents contained signatures.
That is an important practical point.
The recruitment documentation demonstrates where and how recruitment occurred. The recruitment report explains what the employer did and what resulted from the recruitment.
Both matter.
Employers should therefore review the recruitment report with the same care given to the advertisements and ETA Form 9089.
Why Does the Notice of Filing Require Special Attention?
The Notice of Filing is a separate regulatory requirement under 20 C.F.R. § 656.10(d).
It should not be treated as merely another advertisement.
Depending on the employer's circumstances, notice must be provided to the appropriate bargaining representative or, where there is no bargaining representative, posted at the facility or location of employment in accordance with the regulatory requirements.
The employer must also be able to document compliance when requested.
Because Notice of Filing deficiencies can have serious consequences, counsel should review the notice independently rather than assuming that otherwise compliant recruitment cures a defect in the posting.
Should an Employer Send Everything It Has in Response to an RFI?
Not necessarily. More evidence is not automatically better evidence.
A persuasive response ordinarily does four things:
-
Answers each question DOL actually asked.
-
Explains the relevance of the supporting evidence.
-
Maintains consistency with the filed PERM application and recruitment.
-
Avoids introducing unnecessary factual issues that do not advance the response.
If a requested item does not exist or a question does not apply to the employer's circumstances, that should generally be explained directly rather than ignored.
An organized response is often more effective than an indiscriminate document production.
What Should an Employer Do After Receiving a PERM RFI?
An employer receiving an RFI should first review the entire PERM record before drafting a substantive response.
That review should include:
-
ETA Form 9089 and the prevailing wage determination.
-
All recruitment documentation.
-
The Notice of Filing and proof of posting.
-
The recruitment report.
-
Any applications or resumes received.
-
The employer's organizational and business records relevant to the position.
-
The exact questions and documents requested by DOL.
Only after completing that review should the employer determine what additional explanations, declarations, and supporting evidence are necessary.
This sequence matters.
A response drafted without first reconciling the underlying PERM record can inadvertently create inconsistencies that did not previously exist.
Can an RFI Expose Problems That Were Not Obvious When the PERM Case Was Filed?
Yes.
An RFI may reveal issues involving the recruitment record, job description, Notice of Filing, organizational structure, or underlying business documentation that were not previously apparent.
That does not mean every discrepancy is fatal.
But potential weaknesses should be identified before the employer makes additional factual representations to DOL.
The response should distinguish among:
-
facts that merely require explanation;
-
documentary gaps that can legitimately be supplemented;
-
inconsistencies that require careful reconciliation; and
-
substantive defects that cannot properly be cured by changing the original job opportunity after filing.
That distinction can materially affect response strategy.
How Long Must an Employer Keep PERM Records?
Employers generally must retain the supporting documentation for a PERM application for five years from the date the Application for Permanent Employment Certification is filed under 20 C.F.R. § 656.10(f).
The retained file should include the documentation required to support the employer's attestations and recruitment, including the applicable recruitment evidence, Notice of Filing documentation, recruitment report, and other supporting records.
The five-year retention requirement is important because DOL may later require the employer to substantiate representations made in the application.
What Is the Most Important Lesson From a PERM RFI?
A PERM case should be prepared from the beginning as though DOL may eventually ask the employer to prove the facts behind the application.
PERM compliance is not limited to placing advertisements on the correct dates.
A defensible case should establish a clear relationship among:
the employer's actual business → the permanent position → ETA Form 9089 → recruitment → the recruitment results
When those components are aligned, an employer is in a much stronger position to respond to an RFI or audit.
When they are not, technically compliant recruitment may not resolve the underlying questions.
Preparing PERM Cases With Future DOL Scrutiny in Mind
Before recruitment begins, employers and counsel should be able to answer several questions:
Why does this position exist?
How does it fit into the employer's actual business operations?
Who currently performs these functions?
If the position is new, what changed in the business to create the need for it?
Do the title, duties, and minimum requirements accurately describe the position the employer intends to offer?
Can the employer document the factual basis for those representations?
Will the recruitment materials and ETA Form 9089 describe the same job opportunity?
These questions are particularly important for small and growing employers, newly created positions, unusual occupational structures, and roles whose functions are currently dispersed among other employees.
A PERM filing should not merely be capable of being submitted.
It should be capable of being defended.
Frequently Asked Questions About PERM RFIs
Is a PERM RFI the same as a DOL audit?
Not necessarily. A formal PERM audit is governed by 20 C.F.R. § 656.20. DOL may also request additional information or documentation during review of a PERM application. Employers should follow the specific instructions and deadline contained in the correspondence they receive.
Does receiving a PERM RFI mean the application will be denied?
No. An RFI means DOL requires additional information before completing its review. The significance of the inquiry depends on what DOL is asking and whether the existing record supports the employer's representations.
Can a newly created job qualify for PERM labor certification?
Yes. The fact that a position is newly created does not, by itself, prevent PERM certification. The employer should nevertheless be prepared to explain the business need for the position and how the duties fit within its operations.
Can an employer change the duties after receiving an RFI?
An employer may explain or provide factual detail concerning duties already included in the PERM application. Materially changing the position after recruitment, however, can raise significant issues because U.S. workers were recruited for the job opportunity originally described.
What happens if no U.S. workers applied?
The employer should accurately document the recruitment undertaken and state that no applications were received. The absence of applicants does not eliminate the obligation to maintain the required recruitment documentation and recruitment report.
Does the PERM recruitment report have to be signed?
Yes. The recruitment report is required to be signed by the employer or the employer's representative. BALCA has affirmed denial where the report itself was unsigned, even though other accompanying documents were signed.
How long must an employer retain PERM records?
Employers generally must retain the supporting PERM documentation for five years from the date the labor certification application is filed.
Fariba Faiz PC represents U.S. employers in PERM labor certification matters, including complex recruitment issues, Department of Labor Requests for Information, audits, and related employment-based immigration matters.
This article is provided for general informational purposes only and does not constitute legal advice. PERM matters are highly fact-specific, and the appropriate response to a Department of Labor inquiry depends on the application, recruitment record, employer operations, and the particular information requested.
