A PERM labor certification audit is an evaluation of the employee’s permanent employment status and can be requested for random reasons or causes. A PERM processing center CO can request an audit for any reason, and the employer will receive a letter stating what additional documentation to submit and a deadline by which to submit it.
If the requested information is not submitted by the deadline, the application will be denied and the employer will be deemed to have failed to exhaust all administrative remedies.
While most PERM audits are random, some are triggered by specific fact patterns, such as the number of layoffs at a certain location or in a certain position. In any case, employers must provide evidence of all recruitment efforts, such as a recruitment report, as well as a copy of their application.
The DOL will also ask for certain documents, such as the resumes of prospective employees, to prove that they took proper steps to recruit qualified U.S. citizens.
The ETA has strict guidelines for what constitutes a PERM audit, which is why you should respond promptly to any letter from them. In most cases, the letter will specify how much time the employer has to respond, as well as the documents the agency is seeking.
Failure to respond within the specified time period can have a serious consequence on your current PERM application. The letter will also state whether alternative evidence is acceptable or not.
What is a PERM Audit?
If you are wondering what is a PERM audit, then you are not alone. Most employers face this issue at one time or another. If you are facing a PERM audit, you will need to know what you can do to keep your business compliant. Read on to find out more.
PERM Audit Reasons & Triggers
PERM applications can be audited for various reasons, including foreign language requirements, family relationships, alien ownership interest, telecommuting, employee referral programs, and roving positions. Learn why you might be selected for an audit and what to do about it.
Public school recruitment may be a PERM audit trigger. The certifying officer may want to review recruitment closely to determine whether there is a U.S. worker with the same degree. An employee’s recent layoff may also trigger an audit.
Regardless of the reason, it is crucial to meet all federal and state regulations. For example, if an employee has a family connection to the employer’s representatives or owns stock in the company, an audit may be in order. Listed below are examples of common reasons for audits.
1. Requirement for candidate less than bachelor’s degree
While this particular job requirement is not the primary reason for a PERM audit, it is a significant trigger. The DOL is responsible for dissuading employers from setting unrealistic requirements. These requirements typically are not in line with the actual minimum requirements of the job and may be too restrictive for a U.S. worker to fulfill. Therefore, these abnormal requirements can be a PERM audit trigger.
2. When applicants are offered a trading position
While this type of trading position may be rare, it is an excellent example of a PERM audit trigger. In general, if an applicant is offered a trading position, it is one of the possible common triggers for PERM audits. During this time, employers are expected to be as diligent as possible in recruiting U.S. workers.
3. Where no work experience is required
The DOL regularly conducts targeted and random PERM audits. These audits cannot be planned and can be quite surprising. They are designed to prevent abuse of the PERM process. Generally, an application where no work experience is required is questionable, as it is based on its lack of experience.
4. Specific foreign language requirements
PERM regulations allow employers to require foreign language proficiency, as long as the requirement is justified by a business necessity. A business necessity can be demonstrated when the language requirement is needed for communicating with a significant percentage of customers, suppliers, or contractors.
If your employer has a specific requirement, you should explain why. Otherwise, a specific foreign language requirement may trigger a PERM audit.
5. Close familial ties or stocks in the company
The DOL is extremely skeptical of small-sized companies. Therefore, if you are a foreign worker, chances are good you’ll receive an audit notice. Other factors that might trigger an audit include employment history, ownership interest, or close familial ties. The sponsoring employer receiving payment from an outside source could also be a trigger for an audit.
6. Some other triggers
Among other reasons for a PERM audit trigger, a company’s recruitment practices may be scrutinized. For instance, if an applicant’s education and employment experience do not match the job description, the certifying officer may find it questionable.
Another reason may be a recent layoff. The company has to provide an opportunity for a U.S. worker to be hired. However, the company must be compliant with labor laws and regulations to avoid being audited. So, how do you avoid getting targeted? Here’s how:
How to Minimize Your Risk of PERM Audits?
Although no one wants a PERM audit, there are some things you can do to minimize the chances of one. First of all, if your PERM application has been denied, it is not necessarily a reason to panic. You can file a request for reconsideration (ORR) – this is essentially an appeal to the Department of Labor. It may be granted if your application was flawed or for other valid considerations.
While most PERM audits are random, there are times when certain fact patterns trigger them. Regardless of the trigger, it is imperative to show evidence that you took every necessary step to hire the employee. DOL often requires job postings in specific outlets and a recruitment report. Performing an analysis ahead of time can help minimize the risks of a PERM audit and avoid losing valuable employees to the process.
Audits: Types and Procedures
There are two main types of audits for PERM labor certification: targeted and random. Targeted audit focus on employers’ efforts to recruit U.S.-qualified workers and a lack of compliance with documentation requirements.
Random audits are difficult to avoid and cannot be predicted in advance. Random audits help ensure that the PERM process isn’t being abused. They are a useful way for employers to keep the integrity of the program.
PERM labor certification applications are a necessary first step for many employers to sponsor foreign workers for permanent residency. If they are denied, the employer may be subject to supervised recruitment for future labor certification filings for two years.
The exact processing time varies depending on the circumstances. However, audits by the DOL can add as much as six months to the processing time. In some cases, audits can delay an entire PERM application for nine to 18 months.
Labor Certification Audits: What to Expect
There are several reasons why you might be selected for a PERM labor certification audit. First of all, an audit may delay your employment-based immigration. The DOL has increased audit activity in recent years. Despite this, you can take some steps to avoid the process.
During an audit, expect to face questions and answers that are likely to surprise you. This is because the DOL is determined to select a certain percentage of labor certification applications for extra scrutiny. CO will normally ask you some questions related to prevailing wage determination notice and proof of advertisements.
It’s important to maintain the ambiguity of the audit process because making it predictable could undermine the integrity of the program. However, employers should still be prepared for this. If you’ve been chosen for an audit, these are some things to prepare for.
How to Avoid a PERM Audit?
If you are submitting your PERM labor certification application, you must include certain requirements in the supervised recruitment section. Overly strict job requirements can trigger a PERM audit. Instead, you should clearly articulate your bona fide job requirements and document the business necessity of these requirements.
Then, when the certifying officer reviews the documentation, the case will likely be approved. However, if you don’t do this, you may be at risk of facing a supervised recruitment process for any future PERM applications.
Most PERM audits are random, but some are triggered by specific fact patterns, such as a high percentage of layoffs in a specific area or position. In order to avoid this, you must make sure you follow DOL guidelines and make sure you don’t violate any of them.
To avoid a PERM audit, make sure your employer follows its hiring criteria, which can include posting jobs in certain outlets, having an employee’s own ownership interest, and more.
Hiring an attorney to deal with Audit
While a PERM audit is frustrating, it’s not something to be scared of. There are steps you can take if your application is denied, including filing a request for reconsideration or seeking an immigration attorney to discuss your specific situation. If you’re denied, you can file an appeal to the Board of Alien Labor Certification Appeals.
In general, they’ll consider your case if you’re unable to prove that your application was not approved for some reason. But be aware that the process of appealing a PERM can take some time.
How Herman Legal Group Can Help You in a PERM Audit?
If your company has undergone a PERM audit and is struggling to maintain compliant immigration status, it is time to hire a skilled immigration attorney. With decades of experience helping businesses like yours get the legal help they need, Herman Legal Group can handle your permanent labor certification audit with ease.
We can help you avoid the red flags of a PERM audit and maximize your chances of a successful immigration outcome.
Schedule a consult with one of the experienced immigration lawyers at Herman Legal Group by calling 1-800-808-4013 or 1-216-696-6170, or by booking online. Consultations can be conducted by zoom, skype, WhatsApp, facetime, or in-office.
PERM audits are triggered for a number of reasons, including foreign language requirements, family ties, ownership interest, or a combination of occupations. If you’ve recently laid off a U.S. worker, the DOL may also trigger a perm audit request audit. The employer also has to prove that it took steps to recruit new workers.
A job advertisement must be placed in certain outlets. Additionally, a company must file a recruitment report with the department of labor dol if it is not certain that it hired a qualified candidate. To avoid a perm recruitment process audit, make sure you meet all requirements for an unpaid internship or job opportunity.
It is acceptable to list specialized skills, but a long list of special requirements will raise a red flag with the Department of Labor. As a result, if you aren’t sure whether or not your hiring practices are compliant, contact Herman Legal Group today.