PERM Labor Certification Audit

One of the first steps along the road to a green card is getting a PERM Labor Certification. The PERM exists as a way for the Department of Labor (DOL) to help make sure that employers are not using the immigration system to take jobs from U.S. workers. To do this, for an employer to sponsor an immigrant, they will need to undergo a recruitment process. This recruitment process will ensure that there are no qualified U.S. workers available for the position.

PERM Audit: Overview

The employer must post the job through several mediums and interview all qualified candidates. If all qualified candidates are not suitable for the position, the employer must give a reason for why they were not suitable. The employer must run job ads for 30 days. Then 30 more days must be provided 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.

However, because this is an involved process that could result in the beneficiary not getting the position, many employers attempt to circumvent the PERM process and give misleading results. To combat this, the DOL makes use of PERM audits to maintain the integrity of the program.

There are two types of audits that can occur during processing:

  • Random audit – this is to add an element of uncertainty during the process and to ensure that the electronic PERM system is not being abused by employers.
  • Targeted audit – this occurs when your petition does not provide the supporting evidence that you thoroughly sought an eligible U.S. employee before employing foreign workers.

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. COs can randomly select PERM applications to verify the integrity of the process. Since all petitioners have the potential to be selected for an audit, it is important for all petitioners to complete all the mandatory steps before application time.

PERM audit graphic

PERM Audit: Common Issues and Red Flags

The CO can request an audit based on suspicious responses or selection at random. DOL will determine if a job has been specifically set aside for a foreign worker to exclude any domestic applicants.

In certain instances, it may not be the exact job requirements that spark an audit but rather the sponsored worker’s own skills and attributes. The following are some of the common issues that flag 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)

Responding to a PERM Audit Request

If a petitioner is selected for a permanent labor certification audit, the U.S. employer will receive a request from the CO explicitly stating the additional material required and the due date.

You must submit additional credentials by the given deadline or the employer will be faced with a “failure to comply.” The case will then be denied and a review will not be granted. The employer may also face a “supervised recruitment” for any prospective permanent labor certification applications submitted.

If the employer responds within the allotted time, the CO will decide if the additional material submitted corresponds with the submitted ETA 9089 form. The CO has the option to either revoke the application if multiple inconsistencies appear or request further credentials.

U.S. employers cannot choose to ignore the permanent labor certification audit process if the petition has been selected. The only opportunity for petition withdrawal can be completed after the employer has responded to the audit.

PERM Audit Processing Time

Without Audit: Employers that submit electronic applications can normally receive a decision within 5-6 months of filing. Paper PERM applications will take a longer period of time.

Cases Audited by DOL: The processing time averages at about 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. However, specific audited processing dates can be found on the Department of Labor website.

More Recent PERM Audit Triggers

In recent years, the Department of Labor has released a more specific list of PERM audit triggers that fall into eight active tiers. They are as follows:

  1. Positions in which the minimum requirement for education is less than a Bachelor’s Degree
  2. Trade-related occupations
  3. Predetermined public schools
  4. Fifty percent of cases in which the position requires a degree (Master’s/Bachelor’s) and no experience
  5. (Supervised Recruitment) Applications re-submitted after denial within the same calendar year
  6. (Supervised Recruitment) Applications re-submitted after the withdrawal of an audited case in the same calendar year
  7. (Supervised Recruitment) Not filing applications electronically
  8. Fifty percent of cases in which the employer listed a layoff on the 9089

Despite these broadly outlined tiers, it’s important to remember that many audits are random. Just because an application meets the above criteria does not guarantee it will be audited. Likewise, applications that do not have any of the aforementioned triggers can still be audited. All employers are advised to contact a PERM lawyer to discuss the process and ways to approach an audit.

PERM Audit Triggers

PERM Audit Responses

Most often, 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

Department of Labor PERM Processing Time 2022

The following information is taken from the U.S. Department of Labor website.

PERM Audit vs Supervised Recruitment

Both audits and supervised recruitment are similar and cause delays to your PERM processing time. However, they are different and are triggered by different things. While an audit can either be random or manually targeted, all supervised recruitments are targeted. Also, a targeted audit can be seen as a further investigation into red flags. But 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. The resumes will have to be accompanied by 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 used to ensure that your employer performs the recruitment according to the regulations.

So, rather than ask for the documents after the recruitment period, like in an audit, the CO will ask for documents throughout the recruitment process during supervised recruitment. The employer might need to redo the recruitment process if the DOL requests supervised recruitment after it has been completed.

Because there are no targeted supervised recruitments, they are completely avoidable. Making sure you follow all of the PERM regulations and getting help from a qualified green card immigration attorney can help you steer clear of this punitive process.

PERM Processing Time for Supervised Recruitment

In select cases, supervised recruitment is required based on the Department of Labor’s discretion. This essentially gives an employer 30 days to submit a draft advertisement. Once the DOL receives the draft, it typically takes anywhere from a few weeks to a few months to approve the content.

They may even ask for additional advertisement text before approving it. In general, the DOL holds the recruiting period open for a minimum of 60 days, from the initial day of advertising. Then it will redirect any incoming applications to the employer upon arrival. Following the end of the recruitment period, the employer must submit a full report within 30 days.

Expediting the PERM Process

To help avoid an audit and to speed up normal PERM processing time, it’s advised to seek the guidance of an immigration attorney. An attorney can help you determine what paperwork, evidence, and other steps are necessary during the process. Likewise, the employer’s concentrated effort is necessary to receive an approval even if the employee meets all of the necessary criteria. Your immigration attorney, will help you avoid receiving audit review notice by ensuring no stone is left unturned in the application. They will, among other things, ensure:

  • That the mandatory U.S. labor market test for employers is fulfilled (this includes exhausting all the required advertisement channels as stipulated by the DOL for recruitment to ensure no qualified, able, and willing U.S. citizen is available for the position)
  • That the screening and interview for all the applicants were done following the due process
  • That the requirements for the advertised position are not tailored just to favor the beneficiary employee
  • That the salary scale for the advertised position meets the prevailing wage requirement
  • That the employer’s ability to pay the prevailing wage for the job is well proven

Does PERM Audit Review Mean Labor Certification Application Denial?

While a PERM audit review is a potential delay for your application as it can extend it for several months, it doesn’t automatically mean a denial. It is, in a way, a second chance to correct your initial mistakes or provide missing evidence. You should rather see it as an opportunity to prove to the DOL that all information attested to in the application is indeed accurate.

Instead of viewing it as a burden, try to see it as a blessing in disguise and prepare all the necessary evidence, and this time around, ensure no information is missing. In the end, you will likely have your application approved. And if it eventually leads to a denial, you have the option of requesting for reconsideration as explained below.

Received a Denial? Request for Reconsideration

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. Be aware that 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.

What Are the Chances That My PERM Application Will Be Audited?

According to the Society for Human Resource Management (SMRH), 1 in 3 green card PERM applications are audited. Every year, the DOL releases the statistics of processed PERM labor certification applications. On average, 25 to 33% of PERM applications received by the DOL may receive an audit notice, as the percentage varies widely by each fiscal year.

According to the latest release for the first, second, and third quarters of 2022, there were a total of 102,134 applications received by the DOL for the three quarters. As shown in the data, 90.6% of the applications were being reviewed by the DOL analysts, 6.3% were under audit review, 1.3% were under appeal, and 0.4% were in the sponsorship stage.

The most common occupation for the period was under Software Developers (27.1%), followed by Systems Software Developers (11.3%), and IT Project Managers (8.6%). A total of 76,089 applications were certified, 3,433 were denied, and 4,291 were withdrawn.

The total percentage is expected to change by the time the data for the whole fiscal year 2022 is released, as figures for each quarter varies. For instance, in Q1 2022, the total number of applications under audit review was 11%, while Q2 2022 and Q3 2022 showed 7.8% and 6.5% audit review, respectively.

Can I Withdraw My Labor Certification Application After Audit Notice?

Yes, as an employer, you may decide to withdraw an already filed labor certification. However, if the DOL has already sent your audit request, withdrawing the application will not save you from responding to the request. As stated by the DOL, an employer cannot withdraw an application that is under audit without providing a response to the audit.

Even if you tell the DOL that you are withdrawing because the application is no longer applicable or valid, you will still be required to provide the requested evidence. DOL has no stipulated punishment for failure to respond to audit notice. However, there may be consequences for employers found doing such. For instance, for such employers “supervised recruitment” may be made mandatory for all their future labor certification filings for the next two years.

Frequently Asked PERM Questions

This year (FY 2022) some of the most common certified permanent labor applications were in the field of Software and IT. Reports released by the Department of Labor suggest that the top fields that receive PERM approvals include those in software engineering, business/ financial operations, management, statistics, training, and library services.

A list of the top certified PERM applications for 2022 can be located here. In terms of top industries for sponsoring employers, the list was largely consolidated by professional and technical services, followed by manufacturing, information, retail trade, and finance.

What is the usual profile of a PERM beneficiary?

While the specifics may vary, there are some patterns worth acknowledging. Most of the PERM recipients were on H1B status in prior years. Followed by those on L-1 and F-1 student status. Close to 55 percent of PERM filings needed an advanced degree as part of the education requirement.

Are there certain things that trigger an audit?

We can’t say definitively what will or won’t trigger an audit since the vast majority of them are selected at random. We can say that if there is a foreign language requirement for your position, you will most likely receive an audit to verify it.

Furthermore, you may receive an audit for qualifications that go beyond what is considered normal by the DOL for that particular occupation. In other cases, the worker’s qualifications may be a red flag for an audit if they don’t clearly fit the requirements of the position.

Which states have the highest PERM filings?

Based on DOL reports, California remains the state with the highest PERM Labor Condition applications (27% representation) followed by Texas, NY, NJ, and Washington.

How fast are permanent labor certification applications processed?

There is no amount of time that is set in stone in terms of PERM processing time. However, DOL has made clear that their working goal is within 6 months for un-audited applications.

Do PERM cases have a wage requirement?

Employers are required to pay the prevailing wage which is verified by the DOL through the Online Wage Library. Offers are also connected to factors like geographic location, education, experience, skill set, etc.

What is the PERM fee?

While there is no fee for filing a PERM petition, the USCIS charges a filing fee of $580 for the I-140 petition. You may also incur an attorney fee for filing the PERM Labor Certification. It is important to note that you are responsible for all costs associated with the advertisements required for the recruitment process.

How can I check my PERM audit status online?

Although the DOL does not provide a public tracker for your particular petition, there is a number of PERM audit tracking tools you may use to get an idea of the recent trends. This PERM audit tracker, for example, allows users to provide regular updates on their PERM Labor Certification status in order to give you a better understanding of the processing times around your audit or petition. You may find a tool like this helpful while you wait for PERM audit processing.

What is the difference between a PERM audit and supervised recruitment?

If audited, your employer must send all documents regarding the recruitment process to the DOL after the recruitment has been completed. With supervised recruitment, the DOL will assign your employer a Certifying Officer to whom all documents must be sent during the recruitment process. In many cases, this may mean that your employer must go through recruitment a second time.

Is it possible to apply for H-1 extensions indefinitely based on a perm appeal–assuming the case is still in the appeal phase?

In most cases as long as the PERM appeal is pending you can apply for H1 extensions indefinitely. This issue is best addressed by a PERM attorney to ensure compliance with all USCIS regulations.

My PERM application was denied based on simple missing or incorrect information, can I correct this?

In order to correct simple mistakes on your application, your employer will need to submit a written statement requesting a reconsideration for your application. This request must be submitted within 30 days of the denial and will only be granted if there was a typo or an oversight.

Can my employer withdraw my application if an audit happens?

Unfortunately, once an audit has been triggered, the application cannot be withdrawn. Your employer will be subjected to the audit regardless of whether or not the application is valid. Therefore, dropping the case entirely will not stave off the consequences that may result from the audit.

How long should my employer keep the documents regarding my PERM?

While it is almost always a good idea to keep all immigration documents indefinitely, the DOL recommends that all documents should be kept for a minimum of five years.

What is the difference between professional and unprofessional occupations?

Under most circumstances, a professional occupation is one that requires at least a bachelor’s degree to qualify or to perform while unprofessional occupations do not. In the preamble of the PERM regulations, there is a list of professional occupations in Appendix A.

I got my PERM Labor Certification, can I start working for my employer now?

No. The PERM is just step one in your employment-based immigration process. Once your PERM has been issued, you will need to have your employer file a petition for whichever green card you choose. If that petition is approved, you will then need to adjust your status by submitting an I-485. After that has been accepted, you will be able to begin working for your employer in the U.S.

Do I have to get a PERM for my green card?

It depends on which green card you choose. The EB-2 and the EB-3 both require all applicants to have a PERM before applying. However, the EB-1, EB-5, and the EB-2 with a National Interest Waiver can all be obtained without a PERM. The EB-1A and the EB-5 can even be obtained without a job offer, allowing the beneficiary to self-petition.

As an employer can I submit alternative evidence if I do not have the primary evidence available for submission?

According to the regulations noted in 20 CFR 656.20, when an audit is received, the employer must submit the required evidence in compliance with the audit request. However, there are some exceptions.

For instance, we once received a question from an employer. They asked what to do if they did not have dated copies of pages from their site advertising (according to the audit regulations). In this case, you may be able to satisfy the audit request with alternative evidence. Sometimes your evidence does not need to be indicated in 20 CFR 656.20.

How Our PERM Experts Can Help

Getting a PERM audit is sometimes unavoidable, but you can mitigate the risks with help. An audit can cost a significant amount of time and money. Finding an immigration attorney is often the best solution to give you the best chance at avoiding a targeted audit.

VisaNation Law Group’s experienced green card attorneys can help you handle the PERM recruitment process in a way that gives you the best chance at avoiding a targeted audit. They handle every part of the PERM and green card process from filing to dealing with audits, supervised recruitments, and RFEs.

To get in touch with the attorneys, you can fill out this contact form and schedule your consultation today!

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