Obtaining an approved Labor Certification from the Department of Labor, commonly known as the PERM process, is an essential step for many employers who are seeking to hire foreign workers. Although the majority of audited PERM applications are randomly selected, employers should always be prepared for the possibility of an audit and understand how to respond effectively. In this article, we will break down the PERM audit process and exploring its purpose, triggers, steps involved, and best practices for preparation and response.

Understanding the PERM Audit Process

To ensure employers comply with the Department of Labor’s (DOL) regulations and requirements, the PERM audit process was put into place. Audits confirm the accuracy and validity of the information provided in the application. An audit also helps ensure that U.S. workers are not overlooked for the position in question and that the employer has followed all necessary recruitment steps in good faith.

Common Triggers for a PERM Audit

While the DOL audits many PERM applications at random, certain factors increase the likelihood of an audit. These triggers include:

1. Job Requirements:
   • Applications that specify a degree requirement (Bachelor’s or Master’s) but no prior experience, about 50% of these cases are audited.
   • Positions requiring less than a Bachelor’s degree are also flagged more frequently.
2. Layoffs:
   • If the employer has indicated layoffs in the area of intended employment within six months prior to filing, especially for the same role, the application is more likely to be audited (50% of such cases are audited).
3. Job Types and Unique Situations:
   • Trade-related jobs, positions where the employer is a public school, or positions requiring unusual or overstated qualifications may draw additional scrutiny.
   • Applications with non-standard requirements, such as a foreign language requirement where it is unclear whether the position normally requires the use of a foreign language, or certifications uncommon for the role, may also prompt an audit.
4. Family or Ownership Connections:
   • If there is a familial relationship between the foreign worker and key stakeholders (e.g., stockholders, officers, partners), or if the foreign worker has an ownership stake in the business of a closely held corporation or partnership, the application may be more susceptible to an audit.
   • Employers with a small workforce (10 or fewer employees) are also likely to face audits when applying for PERM certifications.

Although these triggers can increase the chance of an audit, it’s important to remember that not all flagged applications will undergo an audit, and the DOL may audit any application at random.

Steps in the PERM Audit Process

If a PERM application is selected for audit, the employer must follow a structured process to ensure compliance. Here are the essential steps involved:

1. Audit Notification: Employers will receive an audit notice from the DOL specifying the documents and information required. This notification also includes a deadline for submission.
2. Document Compilation: Employers must gather requested materials, including evidence of recruitment efforts, copies of applicants’ resumes and employment applications, and a recruitment report signed by the employer, detailing the recruitment steps and results.
3. Submission: All documentation must be submitted to the DOL within the specified timeframe, typically 30 calendar days from the receipt of the audit notice.
4. Review and Determination: The DOL will review the submitted documentation to assess whether the employer has adhered to the regulations and provided sufficient evidence.
5. Outcome: Based on the review, the DOL will either approve the application or deny it. In some cases, further requests for information may be made.

Preparing for a PERM Audit

Preparation is essential for navigating the PERM audit process smoothly. Employers should implement the following best practices:

• Maintain Accurate Documentation: Employers should keep thorough records of the recruitment process, including job postings, resumes received, interview notes, and any other relevant documentation.
• Engage an Experienced Immigration Attorney: Working with an experienced immigration attorney can provide essential guidance and support. Attorneys can help identify any potential issues, review the application, and assist in compiling necessary documentation.
• Stay Informed on Regulatory Changes: Immigration laws and regulations frequently change. Employers should stay updated on any regulatory revisions that may impact the PERM process, ensuring continued compliance.

Responding to a PERM Audit

If an audit notice is received, a timely and organized response is crucial to address any concerns raised by the DOL. Employers can follow these steps to ensure a comprehensive response:

1. Review the Audit Notice Thoroughly: Carefully examine the notice to understand the specific issues raised by the DOL and the required documentation.
2. Seek Professional Guidance: Consult with your immigration attorney to develop an appropriate response strategy. An attorney can assist in presenting additional evidence and addressing specific DOL concerns.
3. Organize and Submit Supporting Documentation: Promptly compile all requested documents, ensuring accuracy and organization before submission. Responding within the specified timeframe is essential to avoid delays or denials.

Final Thoughts

While the PERM audit process can seem daunting, careful preparation, organization, and professional support can help employers navigate it with confidence. By understanding the potential triggers, maintaining detailed records, and responding promptly and thoroughly to audit notices, employers can maximize their chances of a successful outcome. Being proactive and prepared for the possibility of an audit allows employers to continue focusing on building their workforce while meeting regulatory requirements.

For over 25 years, Reddy Neumann Brown PC has focused solely on U.S. employment-based immigration, and works with employers to establish best practices when navigating the PERM labor certification process and responding to possible PERM audits. If you are in need of a U.S. work visa or permanent residency, speak with one of our immigration lawyers. Please contact us online, call our Houston business immigration office directly at 713-953-7787 or schedule a consultation.

By: Jessica Palarca

Jessica Palarca is an Associate Attorney in Reddy Neumann Brown PC’s PERM Labor Certification Department where she assists clients in the beginning stages of the green card process.