How to Minimize Your Risk of PERM Audits?
What is PERM or Labor Certification?
Program Electronic Review Management (PERM) is the system used for obtaining Labor Certification and is the first step for certain foreign nationals in obtaining an employment-based immigrant visa (Green Card). This is also known as PERM Labor Certification.
“A Department of Labor (DOL) certification required for U.S. employers seeking to employ individuals whose immigration to the United States is based on job skills or nonimmigrant temporary workers coming to perform services for which qualified authorized workers are unavailable in the United States”.
- Labor certification is issued by the secretary of labor and contains attestations by U.S. employers of the numbers of U.S. workers available to undertake the employment sought by an applicant
- The effect of the alien’s employment on the wages and working conditions of U.S. workers similarly employed
The DOL Labor Certification Verifies the Following:
- There are insufficiently available, qualified, and willing U.S. workers to fill the position being offered at the prevailing wage
- Hiring a foreign worker will not adversely affect the wages and working conditions of similarly employed U.S. workers
- Determination of labor availability in the United States is made at the time of a visa application and at the location where the applicant wishes to work
Which Employment-Based Categories Needs PERM Labor Certification?
The employment-based preference categories that require PERM Labor Certification are EB-2 (other than a National Interest Waiver) and EB-3. The Labor Certification requirement is waived for a National Interest Waiver (NIW) petition under EB-2 and is not required for any EB-1, EB-4, or EB-5 petitions.
You can find more details about the steps of the PERM process here.
How Do Employers Ensure a Fair Recruitment Process Which Does Not Displace a U.S. Worker?
- A PERM application can be filed with the Department of Labor (DOL) on behalf of a sponsored foreign worker if an employer is unable to find an “able, willing, qualified, and available” U.S. worker for the job opportunity
- The employer will need to post the job through several mediums and interview all qualified candidates
- If all qualified candidates are not suitable for the position, the employer must also give a reason for why they were not suitable
- These job ads must run for 30 days, after which, 30 more days must be given for candidates to respond and be interviewed
- At the end of this period, if no suitable candidates can be found, your PERM form may be approved and you will be able to file a petition on behalf of your beneficiary worker
Why Do DOL Audit?
- Many employers attempt to find a workaround in the PERM process and give misleading results
- To combat this, the DOL uses PERM audits to maintain the integrity of the program
There are Two Types of Audits
- DOL conducts random audits of 30% of the PERM application submitted
- The DOL’s random selection process makes it impossible to completely eliminate the chance of an audit
- This might occur when your petition does not provide the supporting evidence that you thoroughly sought an eligible U.S. employee before employing foreign workers
- If a targeted audit is issued, the DOL may request additional information or documentation that is directly related to the issue that triggered the audit
- Unlike random audits, targeted audits can be avoided by recognizing the triggers from the outset of the process
During a PERM Audit, an Employer Will be Asked for Certain Documents Including:
- Applicant’s resumes
- Signed declarations
- Proof of job advertisements
- Each PERM audit applicant will receive a DOL Certifying Officer (CO)
- The DOL Certifying Officer responds to application requests associated with supplementary recruitment documentation
- If there is anything inconsistent with the content of the application, documentation, or job requirements, the CO has the ability to request a targeted audit
What Can Trigger a Targeted Audit?
- The CO can request an audit based on suspicious responses or selection at random
- In some instances, it may not be the job requirements that result in audit but sponsored worker’s own skills and attributes
List of Common Issues that Can Trigger an Audit
- The prospective immigrant is related to the employer
- The prospective immigrant intends to own a company
- There are fewer than 10 employees working for the employer
- The position has a foreign language requirement
- The qualifications for the position are beyond what is normally required
- The prospective immigrant obtained professional experience or educational payments from the employer
- The U.S. Employer has had protests or layoffs occurring in the specific field of interest
- The prospective immigrant’s professional experience is related to a separate field
- The position requires multiple occupations
- The prospective immigrant made a payment to the employer for filing the PERM application (I-23)
Recently the Department of Labor has Released a More Specific List of PERM Audit Triggers that fall into eight active tiers
They are as follows:
- Positions in which the minimum requirement for education is less than a Bachelor’s Degree
- Trade-related occupations
- Predetermined public schools
- Fifty percent of cases in which the position requires a degree (Master’s/Bachelor’s) and no experience
- (Supervised Recruitment) Applications re-submitted after denial within the same calendar year
- (Supervised Recruitment) Applications re-submitted after the withdrawal of an audited case in the same calendar year
- (Supervised Recruitment) Not filing applications electronically
- Fifty percent of cases in which the employer listed a layoff on the 9089
What Are Typical PERM Audit Responses?
A PERM audit includes a number of documents including:
- A permanent labor certification audit request
- An ETA 9089 that is both dated and signed
- Prevailing wage determination
- Notice of Filing that is signed and fully completed
- Recruitment report that is signed and fully completed
- Applicant resume copies from those mentioned in the report
- Copies of ads references in ETA 9089
What is Supervised Recruitment?
- Supervised recruitment involves the DOL’s direct supervision over the PERM recruitment process
- The DOL may order supervised recruitment for pending PERM applications, irrespective of being audited
- The DOL may also order supervised recruitment for an employer’s future PERM applications
- All supervised recruitments are targeted
- Often, a targeted audit can be seen as a further investigation into red flags
- However, supervised recruitment is more punitive
- During supervised recruitment, the CO will oversee every aspect of the PERM recruitment process
- Your employer will need to submit all advertisements and job postings to the CO before running them and will need to submit all receipts for advertising payments
- Once the jobs are posted, your employer will need to send all resumes to the CO and give detailed explanations as to why each one was turned down
- Supervised recruitment is often triggered when an employer has received several targeted audits or has been caught attempting to take advantage of the PERM system
- It is often used to ensure that your employer performs the recruitment according to the regulations
Does PERM Audit Review Entail Labor Certification Application Denial?
- While a PERM audit review will cause a potential delay for your application as it can extend it for several months, it is not an automatic denial
- It provides you, another chance to correct your initial mistakes or provide the missing evidence
- A request for reconsideration is an appeal to the DOL for the denial to be reconsidered if you believe it was due to an error or some other consideration
- Please note, the processing times will vary depending on the department’s caseload and ability to handle existing applications
What Happens if the DOL Refuses to Reconsider?
- If they refuse your request for reconsideration, it will shift to a request for review to the Board of Alien Labor Certification Appeals (BALCA)
- There is no standard processing time for decisions made by BALCA but it can take more than a year between the issuance of the docket to the final decision
How Long Should My Employer Keep All The PERM Documents?
Employers are advised by the DOL to keep all supporting evidence on file for a minimum of five years after the filing date in the event that an audit is issued. Such evidence may include resumes, prevailing wage determinations, advertisements, proof of business necessity, and more
- While a labor certification can be withdrawn, the employer still is required to respond to the audit
- Not responding can lead to legal consequences
- It’s critical to remember that the PERM labor certification is time-sensitive so procrastinating can hinder your case tremendously
- Again, your PERM audit response time may fluctuate based on your case
PERM labor certification is an extremely complex and time-sensitive procedure. It is also dependent on a lot of variables, based on your unique situation. To get a better idea of what your PERM processing time will be, you can fill out this contact form and schedule your consultation with one of our attorneys, or