Headman Law Group editorial team
Published July 22, 2026
For employment-based green cards that go through PERM, applicants often confuse three different USCIS/DOL communications: the PERM audit request, the I-140 Request for Evidence, and the I-140 Notice of Intent to Deny. They look similar on paper, but they come from different agencies, at different stages, with different response frameworks. Getting them mixed up wastes precious days on the wrong strategy.
The three-stage employment-based green card pipeline
For most employer-sponsored EB-2 and EB-3 cases, three sequential filings need to succeed:
- Prevailing Wage Determination (PWD) — Department of Labor, sets the minimum salary
- PERM Labor Certification (Form 9089) — Department of Labor, tests the U.S. labor market
- I-140 Immigrant Petition — USCIS, actual green card sponsorship
The PERM audit comes from the DOL after the PERM 9089 is filed. The I-140 RFE comes from USCIS after the I-140 is filed. Both can arrive months or years after their triggering filing. Because they can feel similar to receive ("USCIS/DOL wants more information"), the first thing to confirm is which agency issued which notice — and for which case.
PERM audit: what it is and how to handle it
The PERM audit is a DOL request for evidence about the recruitment steps taken before the PERM 9089 was filed. Audits can be random (statistical sampling) or targeted (something in the 9089 raised a flag). Common trigger patterns: job requirements that appear unduly restrictive, requirements listed at Special Handling levels, unusual educational or experience combinations, or historical patterns of the employer's PERM filings.
The response window is 30 days (with a possible 30-day extension). Response evidence includes recruitment postings (Sunday newspaper ads, job posting portals, state workforce agency listings), applicant tracking data (all applicants who applied, why each was rejected), Notice of Filing evidence, and internal recruitment documentation.
I-140 RFE: what it is and how to handle it
The I-140 RFE comes from USCIS after the employer files Form I-140 (on behalf of the beneficiary, typically after PERM certification for EB-2/EB-3). The RFE can challenge any element of the I-140 case: ability to pay, PERM/beneficiary qualifications match, priority date, extraordinary or exceptional ability evidence (EB-1A/EB-2 NIW self-petitions), or PERM validity itself.
The response window is typically 87 days (12 weeks). Response evidence varies by challenge type — ability to pay evidence, updated employer tax returns, beneficiary employment history, or full re-argumentation of extraordinary ability for EB-1A cases.
How to tell them apart
The letterhead is the first tell. PERM audits come from the DOL's Employment and Training Administration (ETA), usually on OFLC (Office of Foreign Labor Certification) letterhead. I-140 RFEs come from USCIS on Department of Homeland Security letterhead. The response deadline is the second tell — PERM audits give 30 days, I-140 RFEs give ~87 days.
The case reference number is the third tell — PERM cases have a case number starting with the year and state (e.g., "P-24123-A-12345"), while I-140 cases have a USCIS receipt number starting with "EAC," "WAC," "MSC," "NBC," or "LIN."
Common confusions
"PERM audit affects my I-140 — right?"
Yes, indirectly. If the PERM audit fails, the PERM certification is denied and the underlying I-140 (if filed) becomes ineligible because the priority date rests on the PERM. If the PERM audit succeeds, the PERM is certified and the I-140 proceeds normally. But the audit response goes to DOL, not USCIS — sending PERM audit evidence to USCIS is a common and costly mistake.
"I got an audit AND an RFE — is that possible?"
Sequentially, yes. Get the PERM certified (audit response wins), then file I-140, then USCIS RFEs the I-140. But the response deadlines don't overlap — you finish the PERM audit before I-140 exists to be RFE'd.
"USCIS is questioning my PERM — that's a PERM problem, right?"
Not necessarily. USCIS can question PERM validity as part of an I-140 RFE (e.g., "the beneficiary's qualifications don't match the PERM requirements") without the DOL being involved. Those responses go to USCIS, defending both PERM's original validity and the beneficiary's qualifications match. This is one of the more complex I-140 RFE types because it touches two separate approval regimes.
The strategic upshot
Read the letterhead first. Confirm which agency (DOL vs USCIS) and which case number (PERM vs I-140). Calendar the deadline (30 days vs 87 days). Only then start pulling evidence — response frameworks differ enough that time spent gathering the wrong evidence is time you can't get back.
If you received either notice and aren't sure which one you're dealing with, book a free 20-minute consult. Bring the notice — most calls open with a two-sentence identification that saves days of misdirected effort.
