Approximately 30% of PERM Labor Certification cases get selected randomly for audit by the Department of Labor (DOL). In an effort to ensure that all applicants are transparent and honest in the process, a PERM audit may be requested by DOL officials. In this article, we’ll explore PERM audit reasons and ways in which you can potentially avoid a PERM audit altogether.
In 2016, the U.S. Department of Labor (DOL), in conjunction with the Freedom of Information Act, released, officially announced the details regarding common PERM audit reasons and triggers. Because receiving an audit during the PERM process can delay your employment-based immigration considerably, here are the common reasons for why an audit is issued and how you can best avoid this obstacle.
As you likely know, a PERM labor certificate is one of the primary steps in the employment-based green card process and likewise, the path to citizenship. One of the requirements of the certification is for employers and foreign workers to meet a set of eligibility criteria.
All employment-based green cards require a PERM except for the EB-1 and the EB-2 with a National Interest Waiver. Keep in mind that the sponsoring employer is responsible for the entire PERM process from recruitment to the filing process.
Why Did I Receive a PERM Audit?
Are you hoping to avoid becoming a part of that statistic? If so, keep reading for a list of PERM audit reasons 2020.
If you received an audit, what that essentially means is you’ll need to provide detailed documents to the DOL in support of the employer’s claims on the Application for Permanent Employment Certification (Form 9089).
Common PERM Audit Triggers and Explanations
There are two main types of audits that are issued by the DOL: random and targeted. The random audits are just that, random. There is no way to anticipate or avoid these. The DOL performs these types of audits to keep the system in check and to help prevent employers from taking advantage of the PERM process.
A targeted audit, however, can be triggered by several things that are completely avoidable. Here are the most common audit triggers according to the Department of Labor:
- If the primary requirements for the foreign worker’s offered job is less than a Bachelor’s Degree, this very often raises a red flag. Unless of course, it is for a dairy worker position, because this is generally excluded.
- Audits also commonly occur when applicants are offered a position related to trade.
- The DOL has identified a handful of public schools that get scrutinized further for PERM applications but unfortunately due to confidentiality reasons, the exact list of which schools is unavailable.
- Another significant trigger is applications where the foreign worker needs a degree (i.e., bachelor’s or master’s) but not necessarily any work experience. Roughly fifty percent of these PERM applications get audited because they seem questionable in the eyes of DOL.
- The fifth trigger is applications in which the employer acknowledges a recent layoff. Again, approximately fifty percent of these cases get audited. This is because it is a popular practice for employers to replace current U.S. workers with foreign nationals.
- An audit can also be triggered if you and the applicant share close familial ties or if the applicant holds an interest in the company such as stocks or other equity.
- The foreign national beneficiary got his or her training or experience with the petitioning employer or received payment for education from them.
- The petitioning employer received some payment from the foreign national beneficiary for the PERM Labor application.
- The job position has a foreign language requirement where it is unclear whether the foreign language will be needed to perform the job duties.
- The job position requires certifications that aren’t typically required for a job.
In the case of an audit, the DOL will deem that your recruitment report is insufficient or contains suspicious circumstances that need to be examined more closely.
How Do I Know If My PERM Application Is Selected for Audit Review?
If your PERM application is selected for an audit, the DOL will send you an audit notice detailing the list of additional information or documentation you will need to submit. The DOL will request all supporting documents and evidence that have been collected throughout the recruitment process. So when responding to a PERM audit, the supporting documents should include:
- The audit request
- The dated and signed ETA form 9089
- The completed Notice of Filing
- The prevailing wage determination
- Copies of all documents including all advertisements placed.
- Receipts of purchase when placing ads in places like the radio or television
- All resumes collected during the recruitment
- Signed declarations
These documents will need to be submitted to a Certifying Officer (CO) assigned to your case by the DOL. This CO will be your contact throughout the PERM audit process. It is also important to keep in mind that once an audit has been requested, there is no way to avoid it. Withdrawing your PERM application will not excuse you from the audit.
The Certifying Officer Will Review the Response
The audit notice will also include the deadline for the submission of the requested documentation. The deadline is generally 30 days from the date the audit letter was issued, and failure to meet up by the deadline may result in application denial.
After submitting the requested information, the CO will review it and decide whether the documentation is complete or not and whether it is in line with the response on the original ETA 9089. If the CO is satisfied, he or she will approve the application.
However, if the CO deems the submission to be incomplete and/or inconsistent, they may deny the application. Other possible outcomes may be for the CO to request even more documentation or require the petitioning employer to undergo supervised recruitment.
Can the Deadline for PERM Audit Be Extended?
While the standard deadline for audit notice is 30 days, the CO has the authority to extend the deadline beyond 30 days if the situation warrants it. If, after the given timeframe, the petitioner fails to respond, the application will be considered to have been abandoned, leading to denial. Additionally, the CO may also decide to require the petitioning employer to conduct supervised recruitment for any of their future labor certification applications for a period of up to two years.
Word of advice to all employers–based on our experience, we recommend you keep any and all supporting evidence on file for a minimum of five years from the point of filing just in case an audit is later presented.
These sorts of documents include resumes, advertisements, prevailing wage determinations, etc.
Not all PERM denials occur after an audit. There is always the possibility that your PERM will be denied without an audit. If this happens, you will need to consult with your immigration attorney to determine the appropriate next steps.
How to Prevent Receiving PERM Audit
Receiving a PERM audit can extend the total processing time of the PERM application for several months. The application may even get denied or the petitioner may be subjected to supervised recruitment for future certification processes. These and many other reasons are why employers should endeavor to prevent receiving an audit request. Some of the recommendations that can help guide against PERM audit are as follows:
- Do not tailor the job position requirements to suit the beneficiary.
- Ensure that all advertisement procedures used for the recruitment exercise are consistent with the DOL guidelines.
- Make sure to do due diligence when screening and interviewing all applicants for the position.
- Keep all the supporting documentation intact for a minimum of five years. These may include prevailing wage determination documents, advertising, and recruitment documents, business necessity documents.
Supervised Recruitment Triggers 2020
The next three points are supervised recruitment triggers and should be taken very seriously:
- If the same employer and foreign employee submit an application (following a prior denial) in the same year, this typically triggers an audit.
- The second supervised recruitment trigger is applications by the same employee/employer after an audited case has been withdrawn in the same calendar year. As you can imagine, this type of activity seems suspicious and warrants additional investigation on behalf of DOL.
- The final trigger in this category is applications that are not filed electronically but instead, on paper. While there may be legitimate reasons for this, it’s still grounds for an audit in some cases.
While an audit requires that you send your documents in to be reviewed after your recruitment period, PERM supervised recruitment may be issued before your recruitment process begins. This usually occurs if there have been issues with your PERM applications in the past.
Supervised recruitment may also be mandated even after your recruitment period has ended, meaning that you will need to go through the recruitment process a second time under the supervision of the DOL. During this time, you will need to submit all documents to the CO throughout the process.
In past years, the DOL has released data to suggest which states have the highest PERM filings, and these include California, Texas, New York, New Jersey, and Washington.
It’s necessary to note that the aforementioned points are not automatic. Instead, they should serve as broad guidelines to mindful of during your application process. Whether you are a sponsoring employer or the foreign worker being sponsored, it’s always advised to seek the help of a reputable immigration lawyer. A professional PERM attorney will best be able to guide you and review the documents provided to avoid a PERM audit altogether.
PERM Audit Denial Procedures
Receiving a PERM Audit is no grounds to panic. In the event that your case is audited and denied, you can file what’s known as a request for reconsideration. This is basically an appeal to the Department of Labor for the denial to be given a second look for reasons like an application error or other related consideration.
Then, if the DOL refuses to reconsider your case, it moves onto the Board of Alien Labor Certification (BALCA) and can take more than a year to reach a final decision.
PERM audits, supervised recruitment, and denial appeals can all add a significant amount to your PERM processing time. To get a better feel for what you can account for in your particular case, ask your immigration attorney.
There are certain situations in which a PERM is not denied outright but also not approved. This usually happens when the DOL has not received sufficient evidence to support your recruitment report and may result in them issuing you a Request for Evidence (RFE).
Again, this is no reason to panic. In fact, an RFE is something like a second chance. Rather than having to go through the PERM recruitment process all over again, an RFE allows you to simply submit the missing information to allow the DOL to make an informed decision.
If you receive a PERM RFE, the first thing you need to do is bring it to your immigration attorney as soon as possible. This is because you will likely be given a narrow window of time with which to respond to the RFE. This response must include the evidence requested as well as a thorough explanation or argument that addresses any issues brought up in the RFE.
PERM Audit FAQs
Can I submit alternative evidence in the absence of the exact evidence required in the audit request?
The most ideal thing is to respond to a PERM audit request with the exact evidence requested by the DOL. However, if the primary evidence requested is not available, you may attempt to respond by providing alternative documentation. Apart from the close similarities between the requested primary evidence and the alternative provided, the manner of submission is another factor that will determine whether it will be accepted or not. If you are in this situation, it’s best to work with an immigration lawyer.
How long does the PERM audit process take?
Generally, petitioning employers are given 30 days after receiving the audit notice to respond. After receiving the response, it may take the DOL up to four months to make a decision on the application. In some cases, it can take much longer, depending on how quickly the petitioner properly responds to the audit notice with satisfying documentations. Ordinarily, the DOL takes an average of six months to process PERM applications. But with an audit request coming to the picture, you may end up being delayed up to ten months or more.
How much does the PERM cost?
Petitioning employers do not have to pay any filing fee for the PERM, as there is no cost attached to the ETA Form 9089. However, some costs will come with publishing job advertisements for the recruitment period.
Is there a way to avoid the PERM requirement?
You may bypass the PERM labor certification requirement if you qualify for certain employment-based green card categories. If you qualify for any of the three subcategories of the EB-1 green card, you will not need to undergo the PERM process. Another option is the EB-2 green card if you qualify for a National Interest Waiver (NIW). For the NIW, you will need to demonstrate that the U.S. would benefit from waiving the PERM requirement, as your proposed endeavor (job or investment) will contribute significantly to the U.S. economy.
How Our Immigration Attorneys Can Help
Nothing in the world of immigration law is simple or easy, and the PERM process is no exception. Because a simple error or lapse in judgment can result in a major delay or even a denial of your PERM application, it is important not to go it alone. This is why you need an immigration lawyer to help you process your PERM, especially when it involves audit or supervised recruitment.
Here at our firm, we have a team of immigration attorneys with excellent track records of PERM processing. We can help you navigate each step of the PERM process and deliver the most effective strategies for approval. We offer a flat PERM application fee and are available to address any issues that arise along the way.
To get in touch with one of our experienced PERM attorneys, just fill out this contact form and schedule your consultation today.