PERM Labor Certification Audit

PERM Labor Certification Audit

PERM labor certification is a multistep complex process, and it is the first step in obtaining an employment-based green card for a foreign worker.  It is primarily designed to make sure that no foreign worker is taking away the jobs of American workers or depressing the wages.

The process requires defining the minimum job duties and requirements, posting advertisements, and conducting recruitment efforts before filing a labor certification application.

As the process is complex where the employer may end up not hiring or keeping the beneficiary employee because they had to hire a minimally qualified U.S. worker, some employers may try to short cut the process.  The PERM labor certification audit is designed to maintain the program integrity.

Audit Types

There are primarily two types of PERM audits:

  • Random Audit

    Such audits are conducted for no specific reason but to ensure the PERM labor certification process is not abused by employers and to simply an element of uncertainty during the process.

    Around one-third of the PERM cases are randomly audited.

  • Targeted Audit

    Targeted audits are conducted when the PERM labor certification petition does not provide the supporting evidence that the employer sought an eligible, able, willing, and qualified U.S. worker before employing a foreign worker.

Common PERM Audit Triggers

The following are the common triggers for PERM audit:

  • Positions for which the minimum education requirement is less than a bachelor’s degree.
  • The position requires a bachelor’s or master’s degree but no experience
  • The beneficiary is related to the employer
  • The beneficiary intends to own a company
  • Trade-related occupations
  • Predetermined public schools
  • The position has a foreign language requirement
  • Total number of employees at the employer are less than 10
  • The qualifications for the position are beyond what is normally required for the occupation
  • The employer had layoffs
  • The alien beneficiary obtained professional experience or educational payments from the employer
  • The position requires multiple occupations
  • The alien beneficiary has paid the employer for filing the PERM application
  • The alien beneficiary’s professional experience is in a different field

Additionally, the following may trigger supervised recruitment:

  • PERM application is filed by mail and not electronically
  • PERM application was resubmitted after denial or the withdrawal of an audited case within the same calendar year

Responding to PERM Audit Request

The employer will receive a request from a DOL Certifying Officer (CO), which will state the additional material required along with the due date.  If the employer does not provide the necessary documentation by the due date, the employer will be considered a “failure to comply”, and the PERM application will be denied. Additionally, the employer may be subject to a “supervised recruitment” for PERM applications in future.

Once the employer responds with the documentation, the CO will decide whether the submitted documents are sufficient, additional documents are required, or if there are so many inconsistencies with the documents, that they can reject the application.

Along with the PERM labor certification audit request, the CO may typically ask for the following:

  • Prevailing wage determination
  • Notice of Filing, signed and fully completed
  • Proof of job advertisements
  • Recruitment report, signed and fully completed
  • U.S. workers’ resumes
  • Signed declarations
  • ETA Form 9089, signed and dated

In case of a random audit, if the CO finds inconsistencies in the application, job requirements, or documentations, the CO may request a targeted audit.

Receiving an audit request does not automatically mean a PERM denial, but it is the employer’s opportunity to prove to the DOL all the information attested to in the application is accurate.

In most cases, while the PERM appeal is pending, the alien beneficiary can apply for an H1 extension.

Application Withdrawal

The employer may choose to withdraw a pending PERM labor certification application. 

However, if the Department of Labor (DOL) has already sent an audit request, the employer must respond to the audit request, irrespective of whether or not the employer chooses to withdraw the application.

Even though there are no fines or punishment if the employer does not respond to PERM audit, the employer may be subject to mandatory “supervised recruitment” for all future labor certification filings for the next two years.

PERM Audit Processing Time

The exact processing time is difficult to state because it changes from time to time, and it varies based on individual circumstances and complications.  However, in general, cases audited by the DOL may add around six months to the PERM processing time, though it can be anywhere from 9 to 18 months.

PERM Audit vs Supervised Recruitment

A PERM audit and a supervised recruitment are different and are triggered by different events.

A PERM audit can either by random audit or targeted audit. A targeted audit is a further investigation into red flags. However, supervised recruitment is always targeted and is more punitive.

In supervised recruitment, the Certifying Officer (CO) of the DOL will oversee every aspect of the PERM recruitment process to ensure that the employer conducts the recruitment according to the regulations.

The employer must submit the following to the CO

  • all advertisements and job postings to the CO before running them. 
  • all receipts for advertising payments
  • after posting jobs, all resumes of U.S. workers and a detailed explanation of why they were rejected.

Generally, the employer becomes subject to the supervised recruitment after receiving multiple targeted audits, or when the DOL learns that the employer has attempted to abuse the PERM labor certification process.

In other words, in an audit, the documents are asked for after the recruitment period, but in a supervised recruitment, the documents are demanded through the recruitment process.   A supervised recruitment means that the DOL does not trust the employer to conduct the recruitment process on their own in a fair manner.

As there are no random supervised recruitments, as long as the employer follows the PERM process correctly, they should not have to face this.

Denial and Request for Reconsideration

If the employer believes that the PERM application was denied due to an error or some other consideration, they can submit a request for reconsideration as an appeal.  Processing timelines vary based on the DOL workload.

If the DOL declines the employer’s request for reconsideration, they will shift to a request for review to the Board of Alien Labor Certification Appeals (BALCA).  This process can easily take more than one year.

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