PERM: Prevailing Wage + Recruiting Without Mistakes — Common Denials and How to Avoid Them
This checklist is for employers, HR teams, and immigration coordinators managing PERM. It focuses on the two most common failure points — Prevailing Wage (ETA-9141) and recruiting under 20 CFR 656.17/656.18. You’ll find practical checklists, an audit file document set, a timing map, and denial patterns so your ETA-9089 is filed with fewer risks.
Quick control before filing 9089
- PWD is correct: SOC/location/level match job content; wage year is current.
- Requirements aligned: the same minimum in PWD, ads, and 9089 (experience, degree, licenses, languages).
- Recruiting compliant: SWA 30 days; two Sunday newspapers/journal; Notice of Filing 10 business days; +3 methods for professional roles.
- Evidence ready: ad layouts, tear sheets/affidavits, screenshots, invoices, response logs, reasons for disqualification.
- Calendar: ad window 30–180 days before 9089; special handling within 18 months after selection.
- Pay range: public figures not below PWD; consistent hour/year format; no “penny mismatches.”
- Remote/location: PWD corresponds to place of performance, not just HQ.
- Plan for RFI/Audit: prepare business-necessity and selection-criteria proof.
Where to check current processing times & filing windows
DOL / FLAG processing times
For PWD (ETA-9141) and PERM (ETA-9089) queues, always rely on the official dashboard.
FLAG — Processing Times (DOL)USCIS Adjustment of Status availability
Each month USCIS indicates whether to use “Final Action Dates” or “Dates for Filing” from the Visa Bulletin.
USCIS — When to File Your AOS Department of State — Visa BulletinRegulatory snapshot: numbers adjudicators check first
- Ad window (656.17): 30–180 days before filing ETA-9089.
- SWA job order: 30 calendar days.
- Notice of Filing: 10 business days at the worksite.
- Special handling (656.18): file within 18 months after a competitive selection; show “best qualified overall.”
Pull the current regulatory text from 20 CFR Part 656 and keep proofs (photos, screenshots, affidavits) for each time-bound element.
Prevailing Wage (ETA-9141): 10 frequent mistakes and how to avoid them
- Wrong SOC/area/level. Title is secondary — map duties; check hybrid/remote and actual worksite.
- Requirement misalignment. Any “+1” requirement in ads (certificate, language, software) must appear in PWD and 9089.
- Ignoring CBA/alternate surveys. Apply CBA if it exists; alternate surveys only with proper methodology.
- Micro mismatches in pay. Even ten-cent differences can cause problems — standardize and document conversions.
- Title-first selection. Choose SOC by duties, not trendy job titles.
- Remote/branch mismatch. PWD for HQ while work is elsewhere — set the performance location in 9141.
- Unstated critical skills. If a skill is essential (regulatory, rare stack), describe it in PWD and ads.
- Wage-year rollover. Before ads, confirm PWD validity and wage-year change.
- No redetermination request. If NPWC made a methodological error, ask for redetermination with evidence.
- Public comp statements. If you publish a pay range, base pay must be ≥ PWD; bonuses/RSUs are separate.
Control question: does the “minimum” match word-for-word across 9141, ads, and 9089?
Recruiting under 20 CFR 656.17 / 656.18: compliance checklist
Professional positions (656.17):
- SWA job order — 30 calendar days; keep confirmations and screenshots.
- Two Sunday newspapers (or Sunday + professional journal where market-appropriate).
- Notice of Filing — 10 business days at the worksite (photos/scans, dates, placement).
- +3 additional methods from DOL list (employer website, job fairs, campus, platforms, etc.).
- Ad window: not earlier than 180 and not later than 30 days before filing 9089.
Special handling (656.18) — teachers:
- File within 18 months after a competitive selection.
- Prove the beneficiary is the “best qualified overall” (committee materials, criteria).
- Collect ads, protocols, letters, and evidence of broad market reach.
Record-keeping:
- Response logs: dates, channels, outcomes, phone/video-screen results.
- Disqualification reasons: strictly job-related (qualification gaps, license missing, refusal to relocate when essential).
- Avoid subjective notions like “culture fit.”
Audit file: what to keep
- Copies of ETA-9141 + FLAG/OEWS screenshots supporting SOC/location/level.
- SWA job order: proof of posting, dates, screenshots.
- Newspaper ads: layouts, tear sheets/affidavits, invoices, Sunday dates.
- 3 additional methods: proof for each (site screenshots, campus letters, job-fair contract, etc.).
- Notice of Filing: photos/scans, places and dates (10 business days).
- Response logs and a Recruitment Report with transparent disqualification reasons.
- Copy of ETA-9089 + FLAG e-questionnaire confirmations.
Timelines and deadlines: frequent pitfalls
- Ad window: 30–180 days before 9089 (for 656.17).
- SWA: 30 calendar days; NoF: 10 business days.
- Special handling: file within 18 months after selection.
- Wage-year updates: verify PWD validity and wage-year before launching ads.
If you already live in the U.S. (employees & HR to note)
- Maintain valid nonimmigrant status (H-1B/L-1/OPT, etc.) during PERM/I-140. PERM itself does not grant status; gaps can derail the plan.
- Job changes before 9089 filing may require restarting recruiting/PWD if duties/location/requirements change materially.
- After I-140 approval and if a visa number is current, consider concurrent filing of I-485 (AOS) with EAD/AP benefits; discuss travel (advance parole) and H/L reentry strategy with counsel.
- AC21 portability generally applies after 180 days of pending I-485 and an approved I-140, to a same/similar occupation — coordinate titles/SOC codes carefully.
- Travel while I-485 is pending usually requires valid H/L or Advance Parole; leaving without either can abandon the I-485.
These points don’t replace legal advice; they align HR, counsel, and the employee’s status planning.
Denial patterns and how to avoid them
Requirement mismatch
Language/license in the ad but absent in PWD/9089 (or vice versa) suggests discouraging U.S. workers.
Avoid it: standardize the minimum and mirror it 9141 → ads → 9089.
Timing violations
Ads outside 30–180; NoF posted for 9 business days; special handling after 18 months.
Avoid it: one calendar, second-person checks, documentary proof for each date.
Weak recruiting records
No logs, vague reasons, phone screens undocumented.
Avoid it: response-log templates, unified interview scripts, preserve emails/calls with dates.
Summary table: PWD, recruiting, audit file — where mistakes cluster
| Risk area | Typical mistakes | What to do |
|---|---|---|
| Prevailing Wage (ETA-9141) | Wrong SOC/location; misaligned “minimum”; micro pay mismatches; CBA/survey issues; wage-year rollover ignored. | Map duties → choose SOC; align 9141 ↔ ads ↔ 9089; standardize pay; request redetermination when justified. |
| Recruiting (656.17) | Ad window violations; incomplete channels; weak logs; NoF < 10 business days. | Calendar + checklist; approve final texts before launch; log templates; NoF photos; proofs of each placement/payment. |
| Special handling (656.18) | Filed after 18 months; poor “best qualified overall” evidence; incomplete ads. | Lock criteria/protocols; save ads; watch the 18-month deadline from selection. |
| Audit file | Missing tear sheets/affidavits; no SWA screenshots; incomplete response log; no Recruitment Report. | Keep everything: layouts, screenshots, invoices; centralized logs; clear report; copies of 9141/9089. |
Process scheme (simplified): where the “gates” are
Chart: where companies most often slip
Illustrative distribution of error likelihood (assumed %) to prioritize controls.
Need a PERM pre-audit of recruiting and PWD before filing 9089?
We build a role-specific checklist, align ad texts with PWD/9089, verify the calendar, and assemble a strong audit file.
FAQ
Can we change minimum requirements after ads are published?
Not safely. You’ll likely need to restart recruiting. Any PWD/ads/9089 mismatch increases denial risk.
What if the PWD level looks “too high”?
Recheck SOC/location/duties; consider an alternate survey or a redetermination if there is a methodological issue.
How should we document phone/video screening?
At minimum: date/time, channel, short competency notes, outcome (“doesn’t meet X”, “declined required relocation”).
How long should we keep recruiting documents?
Keep the full set through adjudication and a reasonable period after; fast reconstruction of the process is key for audits.
Which is more critical — newspapers or a professional journal?
For professional roles, two Sunday newspapers are mandatory; a journal can replace one if appropriate for the market.
How to count the 10 business days for the Notice of Filing?
Count business days at the worksite location; weekends and public holidays don’t count.
How to document “best qualified overall” for special handling?
Collect criteria, committee minutes, finalist resumes, and rationales. The selection logic must be transparent and reproducible.
Remote/hybrid role: which location to use for PWD and ads?
Use the place(s) of actual performance. If the role allows work from multiple locations, reflect realistic worksite(s) and travel; avoid listing HQ only if work occurs elsewhere. Ensure the same location logic appears in PWD, ads, and 9089.
Pay transparency: can we post a range below the PWD?
No. Any publicly stated base pay must be at least the PWD. If you show a range, set the minimum at or above the PWD; keep bonuses/RSUs as separate non-guaranteed components.
