Most PERM audits are random selections, but some are triggered by specific fact patterns, such as layoffs in a specific location or position. Employers must show the DOL evidence of the recruitment steps they took to fill the position, including posting job advertisements in specific outlets and submitting a recruitment report.
Moreover, if the petition has been selected, the employers can’t ignore the permanent labor certification audit. This article will try to cover some common reasons why a PERM audit might occur. Hopefully, this information will help you prepare for the next one.
PERM Recruitment Process
If you’re wondering what PERM is, the best way to understand it is to understand the process. PERM is a federal regulation requiring employers to use several recruitment methods before filing a PERM application.
These include placing a job order with a State Workforce Agency, posting an internal job posting, using in-house company media, and securing a prevailing wage determination from the DOL. Here are some steps to follow when drafting a PERM application:
When writing a JD, keep in mind that the hiring process is based on the job duties you describe in detail. Remember, a good JD will summarize the proposed PERM role in four to five bullet points. On the other hand, a bad JD may be too long or describe the role too narrowly.
The requirements for a PERM application are quite specific. A company must meet minimum requirements and run ads for job postings, including a minimum wage. In other words, the minimum salary requirement of foreign workers should be comparable to the prevailing wage rate and not based on the employer’s personal preference.
However, PERM recruitment is often long and arduous, and candidates should be patient and persistent. The benefits of PERM are worth it.
What is PERM Audit?
PERM audits can be frustrating for employers and delay the entire PERM process. A PERM labor certificate is the primary step in obtaining a green card, as almost all employment-based cards require PERM Process with National Interest Waiver.
If you do not meet the eligibility requirements, a targeted audit may be in your future. A qualified immigration attorney can help you prepare for a PERM audit and minimize the impact it may have on your future labor certification filings.
Sponsoring employer will receive a letter informing them that a PERM labor certification audit has been conducted. The letter will specify the amount of time an employer must provide and the documentation needed to support that response.
Failure to respond to an audit promptly can result in your PERM application being rejected. If you are not sure whether you can meet the deadline, consult an immigration attorney.
Audit Reasons And Triggers
Your PERM application may face an audit or even supervised recruitment for various reasons, including a foreign language requirement, family relationship, alien ownership interest, combination of occupations, roving positions, and employee referral programs.
Here are some examples of PERM audit reasons and triggers and what to do if your application is selected for an audit. To prepare yourself for an audit, review the reasons listed below. Hopefully, these reasons will help you better understand the process. Basically, there are two criteria for audit request:
Random audits and Targeted audits
Random audits are designed to ensure that the PERM process is fair, while targeted audits are conducted because of red flags. While PERM audits are typically based on random selection, some are triggered by certain fact patterns, such as a recent occurrence of layoffs in a particular area or position.
To avoid being audited for this reason, the employer must show evidence of its recruitment efforts, including posting jobs in specific outlets and submitting a recruitment report.
Targeted PERM audits are targeted at particular red flags in a PERM application. These audits aim to inject some uncertainty into the process and prevent employers from gaming the system by submitting fraudulent or false applications.
Moreover, the Department of Labor DOL has the authority to increase the number of random PERM audits and change the criteria for targeted audits.
Layoffs in a particular position or location
Layoffs have long been considered a PERM audit trigger. If you are considering a PERM audit, you should know a few things. First, you must be aware of any previous layoffs in your industry or location. You should also make sure you analyze your company’s layoff history before launching a PERM application or recruitment campaign.
The primary requirement of less than bachelor’s degree
Random and targeted audits of PERM applications are conducted by the DOL. It is impossible to predict if an audit will occur, but it is intended to maintain the integrity of the process and prevent abuse. If the foreign worker’s offered job has a primary requirement of less than a Bachelor’s degree, the process is considered questionable.
PERM applications are selected for audit for several reasons, and one of them is trading positions. So keep in mind that if you are going to hire a foreign worker for a trading position, an audit is on your way as it is one of the most common perm audit triggers!
If a Foreign Worker Needs no Experience
If your job position doesn’t require any experience, you are likely to face an audit. Therefore, an employer needs to consider this possibility before submitting their PERM or starting a recruitment campaign.
Close Family Relations and Referral Program
Whether the position requires experience is not as important, but your family connection could trigger a targeted audit. While close family relationships may not be grounds for denial, they can be PERM audit reasons and triggers. This is not to say that your PERM application will be rejected because of a nexus.
It is important to understand what triggers a DOL audit and how to avoid them. An employee referral program may also trigger a PERM audit. . If any of these situations sound familiar, contact a qualified immigration attorney before starting the PERM process.
If the Applicant Holds a Share in the Company
Almost any factor in an applicant’s background that might raise red flags is a potential PERM audit trigger. These include the foreign worker’s familial relationship with the employer, whether the applicant owns stock in the company, and his work history.
Foreign Language Requirement for Job Position
One of the most common triggers for a targeted audit is a language requirement in the job description. In this case, an audit can be held. However, certain positions with foreign language requirements are exempt from audits.
How to Minimize Your Risk of PERM Audits?
How can you minimize your risk of PERM audits? By following a few simple steps. First, file your application as soon as possible. As a general rule, the earlier you apply, the better.
However, some cases are randomly flagged for audit review. This can lead to delays of several months. The good news is that a PERM audit is an opportunity to correct any mistakes or provide missing evidence. In addition, it is an opportunity to prove your application’s accuracy.
Another way to minimize your risk of a PERM audit is to analyze the history of layoffs. Doing so can help you understand which employees were laid off and which ones were not. Doing this analysis before PERM will help you avoid costly mistakes and unnecessary delays.
If you are unsure whether a previous employee was laid off, consider asking for an explanation. Having this information readily available is a great way to ensure compliance.
A PERM audit review can delay your application by several months. However, it is not a guarantee that you will be rejected. The PERM audit request gives you the chance to correct mistakes, present missing evidence, or prove that you are eligible to work in the United States.
The sooner you start preparing for your PERM audit, the better. The process is highly specific and complex, and the department of labor DOL has strict requirements to ensure that it is done properly. Even if you successfully navigate the PERM process, you could still be audited.
Why Choose Herman Legal Group?
The PERM audit process is relatively simple – but there are some flaws, and many Attorneys leave clients in the dark. Herman’s legal group’s team will communicate with the employer and understand the job duties and qualifications of the PERM audit applicant. Our attorneys will also evaluate the employer’s recruitment efforts and advise whether further recruitment is necessary. With our help, you can focus on the job at hand.
Herman Legal Group‘s attorneys can help you fight the audit and secure the employment you deserve. Feel free to call at 1-800-808-4013 or 1-216-696-6170 to schedule an appointment with Herman Legal Group’s experienced immigration lawyers or book online.