This guide is for attorneys, paralegals and HR teams whose wage determination is about to expire, or already has, with recruitment under way. It also answers a question people waiting on their own case ask when they spot the expiry date on their file. The short answer is yes, often. It depends on one date: the day recruitment began.
The short answer
If the first recruitment step began on or after the determination date and on or before its expiry, the application can be filed after the expiry, up to 180 days after that first step. If recruitment began before the determination was issued, the application has to be filed before the expiry.
The rule
20 C.F.R. § 656.40(c) (2025) sets the validity period at no less than 90 days and no more than a year from the determination date, then says: "To use a prevailing wage rate provided by the NPC, employers must file their applications or begin the recruitment period required by §§ 656.17(e) or 656.21 of this part within the validity period specified by the NPC."
Either act inside the validity period is enough. Beginning recruitment inside it satisfies the rule, and the 180-day limit of § 656.17(e) then decides how long the filing can wait.
| When the first recruitment step happened | Can you file after the expiry? | Last day to file |
|---|---|---|
| On or after the determination date, on or before the expiry | Yes | 180 days after the first step |
| Before the determination date | No | The expiry date |
| After the expiry | This determination can't be used | Request a new one |
| Recruitment hasn't begun yet | Only if it begins by the expiry | Begin by the expiry, then 180 days from that step |
Two Board decisions that show the line
| Karl Storz Endoscopy-America | Mphasis Corporation | |
|---|---|---|
| Citation | No. 2011-PER-00040 (BALCA Dec. 1, 2011) (en banc) | No. 2011-PER-00207 (BALCA Aug. 10, 2015) |
| Determination valid | September 11, 2008 to January 1, 2009 | July 9 to October 10, 2007 |
| First recruitment step | September 5, 2008: job order and website ad, 6 days before the determination | Employee referral program listed from July 1, 2007; the vacancy was posted September 20, 2007 |
| Filed | February 11, 2009, after the expiry | October 19, 2007, 9 days after the expiry |
| Result | Denial affirmed | Certification directed |
Karl Storz Endoscopy-America, No. 2011-PER-00040 (BALCA Dec. 1, 2011) (en banc), settled what "begin the recruitment" means. The Board held that "an employer begins the recruitment process by conducting its first recruitment step." Id., slip op. at 15. It added that "Section 656.40(c) does not require that an employer wait to receive a PWD before beginning its recruitment. If an employer begins its recruitment prior to receiving its PWD, however, it must file its application within the PWD validity period." Id. at 16. Karl Storz started six days early and filed after the expiry, so neither act fell inside the validity period.
Mphasis Corp., No. 2011-PER-00207 (BALCA Aug. 10, 2015), shows the rule working the other way. The employer filed nine days after its determination expired. The certifying officer denied it because the form listed an employee referral program starting July 1, before the determination. The Board found that a referral program can't begin before employees know of the opening, and they learned of it when it was posted on September 20, inside the validity period. Id., slip op. at 3. Recruitment had begun inside it, so the late filing was fine. The Board directed certification. Id. at 4.
Both decisions are on the Department of Labor's site: Karl Storz and Mphasis.
Check your own case
Read the determination's two dates
The determination date and the end of the validity period are both on the determination. The validity tool shows how long one lasts.
Find the first recruitment step
The earliest of the job order's start, the first Sunday ad and, for a professional job, the first additional step. Use the day it really began, with the documents that show it.
Compare
If that day falls on or between the determination's two dates, the expiry no longer limits the filing. If it falls before the determination date, file by the expiry.
Count 180 days from the first step
That's the last day to file in either case, and the earlier of the two dates applies when the expiry still limits it. The worked example runs a whole case.
The PERM deadline calculator does all four from three dates, and the app's case form says so when the expiry is what closes a case's window.
The notice of filing
The notice of filing comes from § 656.10(d), not from the § 656.17(e) recruitment that § 656.40(c) names, so PERM Tracker doesn't count a notice posted first as beginning recruitment. The notice still has its own rule: posted for at least 10 consecutive business days, "between 30 and 180 days before filing." If your notice went up before any other step, check the reading with the attorney on the case.
What this can't tell you
- Whether a particular step began when the form says. Mphasis turned on evidence of when employees learned of the vacancy. Keep dated copies of every step.
- Whether the wage is still the right one. A change to the job's duties, requirements or location can need a new determination whatever its dates.
- Whether DOL will read a case differently. These are the Board's readings; a certifying officer decides the case first.
PERM Tracker's own calculators applied the stricter reading until October 16, 2026, and the corrections log records the change. Nothing here is legal advice. Check your dates with the attorney on the case.
