Overcoming Recent DOL PERM Denials Related to Section G.10/Appendix C Foreign Degree Credentials

Our office has observed a troubling trend of the Department of Labor (DOL) issuing denials of PERM Labor Certifications (Form ETA-9089) based on allegedly “incomplete” explanations in Appendix C. This action frequently stems from how employers answer Section G.10 regarding the use of a credentialing service to qualify a foreign worker’s education (and experience).

The core issue revolves around the DOL demanding an exhaustive narrative explanation, despite the Form ETA-9089 instructions asking only for a “brief explanation” and explicitly stating what language is acceptable.   Our office has been successful in reversing such denials so these are our observations and strategies.

Understanding the DOL’s New Scrutiny on Section G.10 and Appendix C

When an employer marks “Yes” to Section G.10—confirming that a credentialing service was used to qualify the foreign worker’s education—they are required to provide a brief explanation in Appendix C.

Following the DOL’s own instructions, in Appendix C many employers provide a statement requested by the form: “The employer is willing to accept an equivalent foreign degree” or similar.

However, in a growing number of recent cases, the Certifying Officer (CO) has denied the application, claiming the response is insufficient. The typical denial language issued by the DOL states:

The employer indicates in Appendix C Section G.10 “The employer is willing to accept an equivalent foreign degree.” The employer’s response lacked sufficient information, preventing the Department from determining if a credentials evaluation service was used as stated in Appendix C (G.10) on the Form ETA-9089 application. As a result, the application is denied.

To justify these sudden denials, Certifying Officers are aggressively citing 20 CFR § 656.3 and an inapplicable nonimmigrant regulation—INA 8 CFR § 214.2(D)(3)—to assert that employers must provide intricate details on exactly how a foreign educational credential was evaluated. Because the DOL deems the brief Appendix C response as “lacking sufficient information,” they classify the entire ETA-9089 application as incomplete under 20 CFR § 656.17(a) and issue a direct denial without offering an audit or Request for Information (RFI) to clarify.

An Inconsistent and Sudden Shift in Adjudication Standards

In April 2023, the DOL implemented a significant revision to Form ETA-9089 and its filing process, which introduced the current Appendix C structure. The stated purpose of these changes was to streamline the process and eliminate exhaustive “back and forth” between the Department and employers. Since this revised form was introduced, specifying the acceptance of a foreign degree equivalency with a brief, single-sentence statement has been completely acceptable and standard practice.

Until very recently, the DOL routinely certified applications using this exact phrasing without issue. Frustratingly, the DOL continues to approve many other PERM cases that contain the exact same Appendix C language, while arbitrarily denying a select few. This creates a glaring inconsistency in adjudication, leaving employers to feel as though the goalposts are moving mid-game.

How Our Firm is Successfully Overcoming and Avoiding These Denials

Our office has been successful in reversing such denials by focusing on several arguments and principles:

• Holding the DOL to Its Own Instructions: The DOL’s form instructions explicitly state what phrasing employers should use when accepting a foreign degree. When an employer follows those instructions verbatim, we argue that it is fundamentally unfair and a violation of administrative due process to penalize them for not following an unwritten, newly invented standard.

• Calling Out Wrong Rules: We carefully analyze the legal authorities cited in the denial notice. When an officer cites nonimmigrant H-1B regulations or confuses the rules for substituting work experience with standard foreign degree equivalencies, we point out the clear legal error.

• Showing the Full Picture on the Form: Instead of letting the DOL evaluate a single sentence in Appendix C in isolation, we demonstrate that all necessary details regarding the worker’s specific degree, issuing university, and qualifications are already fully disclosed across the application’s other appendices (such as Appendix A).

• Providing Pre-Filing Proof: We ensure the record clearly establishes that a proper, official credential evaluation was completed before the PERM was filed, removing any doubt about the worker’s qualifications.

PERM Denial Logistics: Strict Timelines & H-1B Extension Strategy

When a PERM application is denied, immediate action is required:

• The Strict 30-Day Deadline: An employer has exactly 30 calendar days from the date of the determination to submit a Request for Reconsideration through the FLAG system. The DOL strictly enforces this deadline with no extensions allowed. Missing this window makes the denial final and forfeits all administrative appeal rights.

• Processing Timelines: Once submitted, review on a Motion to Reconsider generally takes 3 to 6 months.

• Protecting H-1B Status (The 365-Day Rule): For foreign workers approaching their maximum six-year H-1B limit, a PERM denial poses an urgent threat. Filing a Motion to Reconsider keeps the PERM application legally “active” and pending. Under AC21, if a PERM application has been pending for 365 days or more, the employee becomes eligible to extend their H-1B status in one-year increments beyond the six-year cap. Keeping the case active through reconsideration preserves this vital extension eligibility while the DOL reviews the motion.

Conclusion

Our office will continue monitoring related developments and provide updates.    Please do not hesitate to contact us if we can be of any help in preparing or otherwise assisting with PERM applications, including denials or motion to reconsider.   Also, please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topic.