PERM Labor Certification Audit

PERM Audit Overview

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, in order for an employer to sponsor an immigrant for most employment-based green cards, that employer will need to go through a recruitment process in order to make sure that there are no qualified U.S. workers available for the position.

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 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.

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. It is also required for COs to 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

PERM Audit: Common Issues and Red Flags

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

In certain instances, it may not by 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 has intent of company ownership
  • There are fewer than 10 employees working for 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 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.

The additional credentials must be submitted 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 our PERM lawyers to discuss the process and ways to approach an audit.

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 2019

The following information is taken from the U.S. Department of Labor website.  These dates are current as of 02/28/2019.

PERM Audit vs Supervised Recruitment

While both audits and supervised recruitment are similar and cause delays to your PERM processing time, 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 a 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 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. Keep in mind that the employer may 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 sixty days (from the initial day of advertising) and 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. He or she 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.

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.

Frequently Asked PERM Questions

Last year (FY 2016) some of the most common certified permanent labor applications were in the field of computers and mathematics. Reports released by the Department of Labor suggest that the top fields that receive PERM approvals include those in architecture and engineering, business/ financial operations, management, education, training and library services.

A list of the top certified PERM applications for 2016 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, education, finance and insurance.

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 which trigger an audit?

While 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. It is important to note that you are responsible for all costs associated with the advertisements required for the recruitment process. You may also incur an attorney fee for filing the PERM Labor Certification.

How can I check my PERM audit status online?

Although the DOL does not provide a public tracker for you 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?

In the case of an audit, your employer will be required to 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 on 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 although there are some exceptions.

For instance, we once received a question from an employer asking 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 not necessarily indicated in 20 CFR 656.20.

Summary of PERM Processing Time 2019 and Audit

A PERM audit can seem intimidating at first but with the help of our immigration lawyers, you can still receive an approval. 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.

Be aware that 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. For more information on PERM processing time 2017 it’s best to contact one of our attorneys who specialize in PERM Labor Certification.

How Our PERM Audit Attorneys Can Help

Getting a PERM audit is sometimes unavoidable, but you can mitigate the risks with help. Because 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.

Here at Immi-USA, we have a team of highly experienced green card attorneys that can help you handle the PERM recruitment process in a way that gives you the best chance at avoiding a targeted audit. We 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 our immigration attorneys, you can fill out this contact form and schedule your consultation today!

This page was updated on March 21, 2019