PERM Denial After Audit
After submitting a PERM application, the officers at the PERM Processing Center may request an audit to ensure you meet the specific qualifications required for employment based permanent residency. While some PERM audits are randomly selected, other may be chosen due to a specific concern. What’s more, they are conducted to add an element of uncertainty in the filing process so that it’s not abused. In the past, the DOL has suggested that approximately 30% of petitions will be audited. If you received a PERM denial after audit you may be wondering what the next steps are.
PERM Audit Initial Response
If you (the petitioner) is picked for a labor certification audit, your U.S. employer will receive a written request from the officer explaining what additional materials are needed as well as the due date (30 days from the letter date). If these are not submitted in time to meet the deadline your employer will receive a ‘failure to comply’ notice. Subsequently, it will be denied. If your employer does respond in the appropriate time, the officer will them make the decision whether the submitted materials correspond to the ETA 9089 Form. From there the application will either be revoked due to inconsistencies or more credentials will be requested.
Audit Processing Time
Cases not audited by the DOL but via electronic applications can normally receive a decision within 5-6 months after filing. Paper PERM applications will take an extended period of time.
Cases audited by the DOL take on average 6 months from filing. Giving an exact processing time is difficult due to individual complications and circumstances. Permanent labor certification audit responses are reviewed based on the order of entry. More specific audited processing dates can be found on the Department of Labor website.
Possible Audit Reasons
There are a variety of possible explanations for a PERM audit. Some of the most common audit triggers include:
- Trade related jobs
- Occupations which the min. education requirement is less than a 4-year degree
- Cases that require a degree but no experience
- Cases where employer indicates recent layoff
- Applications submitted for same employer/employee after a denial in the past year
- Applications by same employer/employee resubmitted after a withdrawal in audit case for the past year
Document required for the PERM audit:
- Copies of ads referenced in ETA 9089
- Applicant’s resume copies
- Prevailing wage determination
- Signed and completed recruitment report
- Signed and completed notice of filing
- Signed and dated ETA 9089
A qualified immigration attorney can better explain your options if you’ve received a PERM audit request.
PERM Denial Explained
After a PERM denial has been issued by the Department of Labor, your employer has 30 days to take one of two actions. The first option is to request a reconsideration of the decision by the officer OR request a review by the Board of Alien Labor Certification Appeals (BALCA).
What if my employer takes NO action?
If your employer does not select one or the other courses of action, the decision will be made final and your employer will no longer be able to challenge it. As the employee you cannot request a review or challenge the PERM, only the employer can. Attempts made on behalf of the employee are usually just rejected. What’s more, any additional cost related to challenging the denial are supposed to be handled by the employer.
Responding to PERM Denial After Audit
If your employer chooses to request a reconsideration, the certifying officer will either grant the motion for reconsideration or deny it and treat it as a request for a BALCA appeal. From there (once appeal is docketed) the employer and DOL can submit a statement of position for their case. BALCA will then either confirm the officers decision and deny the application or send the case back to the CO for further review.
Remedies for Denial Due to DOL Error
If you or your employer believe the PERM denial is due to an error on the DOL’s behalf, you should file a request for appeal. Again, appeals with BALCA may take a considerable amount of time until a decision is finally made. In some cases, an immigration attorney may advise you to just accept the PERM denial and refile the PERM petition at a later time since the appeals process can be so consuming.
Click here to learn about PERM denials without audit including the next steps, additional ways to receive an approval and more.
How Our PERM Lawyers Can Help
Our PERM lawyers can help you understand the reason for your PERM denial and the most appropriate course of action for responding. We’ve handled a range of complex cases including filing motions and appeals through BALCA. We offer Free Immigration Consultations to individuals/businesses who are looking to retain a law firm for employment and investment immigration matters.