Minimize Your Risk of PERM Audits by Recognizing These Audit Triggers
PERM Labor Certification is often the first of three steps in the employment based green card process. The purpose of PERM is to ensure that U.S. workers are not being displaced by hiring a foreign worker into a permanent position. Employers must therefore conduct recruitment for the PERM position in order to test the U.S. labor market. This is accomplished by posting the position on certain required mediums. A PERM application can be filed with the Department of Labor (DOL) on behalf of a sponsored foreign worker if through its recruitment efforts, an employer is unable to find an “able, willing, qualified, and available” U.S. worker for the job opportunity.
PERM applications are filed electronically via the DOL’s Foreign Labor Certification Permanent Online System. An employer is not required to submit supporting documentation when a PERM application is filed. Therefore, the DOL implements a quality control process in the form of audits to ensure compliance with all PERM regulations. In the event of an audit, the DOL typically requires:
- Evidence of all recruitment efforts undertaken (copies of advertisements placed and Notice of Filing);
- Copies of applicants’ resumes and completed employment applications; and
- A recruitment report signed by the employer describing the recruitment steps undertaken and the results achieved, the number of hires, and, if applicable, the number of U.S. applicants rejected, summarized by the specific lawful job-related reasons for such rejections.
Random vs. Targeted Audits
There are 2 types of audits issued by the DOL: Random and Targeted. The DOL will randomly select approximately 30% of PERM applications for audit. The DOL’s random selection process makes it impossible to completely eliminate the chance of an audit. The DOL can also issue targeted audits that are triggered by certain aspects of the PERM application. If a targeted audit is issued, the DOL may request additional information or documentation that is directly related to the issue that triggered the audit.
Unlike random audits, targeted audits can be avoided by recognizing the triggers from the outset of the process. The following are audit triggers to watch out for:
- Applications where the job requires a degree (Master’s or Bachelor’s) but no experience. 50% of these cases are audited.
- Applications where the job requires less than a Bachelor’s degree
- Applications where the employer has indicated having a layoff in the area of intended employment and for the position involved in the application within the last 6 months of filing the PERM application. 50% of these cases are audited.
- Applications that involve a trade related job
- Applications where the employer is a public school
- Applications with requirements that are not normal for the occupation (overstating requirements)
- Where there is a familial relationship between the foreign worker and the stockholders, corporate officers, incorporators, or partners
- Where the foreign worker is one of a small number of employees (10 or less employees)
- Where the employer is a closely held corporation or partnership in which the foreign worker has an ownership interest
- Applications involving a foreign language requirement where it is unclear whether the position would normally require a foreign language to perform the job
- Positions requiring certifications that are not typically required for the position
Supervised recruitment involves the DOL’s direct supervision over the PERM recruitment process. The DOL may order supervised recruitment for pending PERM applications, whether or not the application has been audited. The DOL may also order supervised recruitment for an employer’s future PERM applications.
The supervised recruitment process is time consuming, stringent, and costly. Employers will be held to a strict timeline to complete all the recruitment steps required by the DOL. The employer will be required to place additional advertisements for the sponsored position even after undergoing the initial PERM recruitment process. Further, applicants will be directed in the advertisements to send resumes directly to the DOL. The DOL will then forward all resumes to the employer for further review.
Where possible, employers will want to avoid supervised recruitment. Therefore, employers should be aware of the following supervised recruitment triggers:
- Re-submitted applications after denial within a year
- Re-submitted applications after withdrawal of an audited case within a year
- PERM applications submitted by mail: The majority of the time PERM applications are submitted electronically.
(Note, the 3 listed triggers above are also considered audit triggers)
An audit is never ideal, especially due to the length of time an audit adds to the process. Currently, the DOL is taking 6-7 months to adjudicate PERM applications once filed. If an audit is issued, this will add another 4-5 months to the process. Understanding each audit trigger allows you and your immigration attorney to create an appropriate plan of action for your specific case. If you are starting the PERM based green card process, the best thing to do is discuss your unique situation with a qualified immigration attorney.
By: Krystal Alanis
Krystal Alanis is a Partner at Reddy & Neumann P.C. She acts as the Managing Attorney for the firm's PERM Labor Certification Department, where she oversees all EB-2 and EB-3 employment based green card matters. She also guides employers and individuals through the I-140 and Adjustment of Status process, assists clients with non-immigrant visa petitions (e.g. H-1B, TN, L-1, etc.), and advises her clients on I-9 compliance issues.