On December 1, 2007, we advised our clients about the increase in PERM Audits being issued by the Department of Labor.  We advised how the Audits are usually related to specific job requirements or job duties that are not the typical job requirements and/or job duties for that particular job.  However, more recently the Department of Labor are subjecting all PERM Labor Applications to strict scrutiny especially if the job requirements and/or job duties are not consistent with what is listed for that particular job by the Department of Labor’s Occupational Handbook. 

 

This month, January 2008, the Office of the Foreign Labor Certification released Selected Statistics on the PERM Program confirming the significant number of PERM Audits.  For the FY 2008 (October – December 2007), the Department of Labor reported that the PERM Audits increased by 44%, meaning that 44% of the PERM applications were pending audit review by the Department of Labor.

 

In the past two months, our office has received several inquiries regarding these PERM Audits.  We advised the greater need for clients to carefully prepare and retain all advertisement and recruitment measures for their PERM applications.  We also advised clients seeking to start a PERM application to seek the legal expertise of an immigration attorney in order to ensure, avoid, and prepare for the possibility of being issued a PERM Audit. 

 

Please do not hesitate to contact our office for a free initial consultation.  If you, a friend, or an employee, recently filed a PERM Labor Application and received an “Audit,” you should not attempt to respond to the Department of Labor without obtaining experienced legal advice.  Or if you are getting ready to file a PERM Labor Application, you should be aware of this increasing scrutiny by the Department of Labor and carefully prepare your application. 

 

Quick Overview of the PERM Labor Application Process

PERM is the process for obtaining labor certification, the first step of the green card process for foreign nationals seeking permanent residence through their employment. To obtain an approved PERM Labor Certification, the employer must prove (through newspaper advertising and other recruiting methods) that they were unsuccessful in recruiting a qualified U.S. worker for a certain position.

Employment-Based Green Card Application involves the following three steps:

1)      PERM Labor Certification Process:

a)      30 Day PERM Labor Certification Recruitment and Advertisement Period;

b)      30 Day Mandatory Waiting Period (from the last date of advertisement and/or recruitment);

c)     File PERM Labor Application Online with the US Department of Labor  or Directly File with either the Atlanta Processing Center or the Chicago Processing Center (at the end of the 60 day PERM process);

2)      File I-140 Immigrant Petition for Alien Worker;

3)      File I-485 Application to Register Permanent Residence or Consular Processing at US Consulate Abroad once your Priority Date is current for your employment-based preference category is current.

 

 

PERM Audit -- The Certifying Officer (CO) can audit the case if s/he finds the case suspicious either in its content, recruitment activities, or the authenticity of the job opportunity. The CO can also randomly select cases for auditing. The employer will have to timely submit all requested documents to address the CO.  If the employer does not respond to the audit request, the case is deemed abandoned.  We do not recommend not responding to an audit since the CO may see this as the employer's refusal to auditing.  Then CO may determine that the employer may be required to conduct “supervised recruitment” for any future labor certification the employer tries to file for up to two years.

At the same time, any “restrictive job requirements” such as a language requirement will automatically trigger an audit from the CO.  This audit can be properly responded to and overcome with the proper documentation to establish the “business necessity” of the specific job requirements.  For example, we can clearly establish business necessity of the a language requirement if the employee is required to use the language for more than 50% of his day-to-day job and has supporting documentation in the form of correspondences and attestations from colleagues and clients attesting to this fact.  We can also show the nature of the business alone requires the language, such as a translating service requiring its employees to speak a specific language.

 

Document Retention – Even though we are not required to provide the Department of Labor with any of the PERM Recruitment or Advertisement documentation; the CO can at anytime request this information in the future and therefore the employer retain all documents for at least five years.  The employer should carefully prepare the PERM documentation, just in case an Audit is issued:

 

1. Recruitment Summary Report
2. Copies of all recruitment and advertisement such as:
1. Original Tear Sheets for Two Consecutive Sunday Advertisement
2. Original Tear Sheet for Weekday Advertisement
3. Original Job Postings (Note: should have the proper national processing center)
4. Original Prevailing Wage (Note: initial fax request to the DOL and the DOL issued wage)
5. 30 day Job Order (Note: should have date stamped with open date and closed date)
6. Online Job Posting with Job Search Engine (Note: should have date stamp in print outs)
7. Original Employee Referral Program (Note: should have an incentive for referrers)
3. Copies of all resumes received including completed interview sheets
4. Copies of alien’s credentials (resume, degrees, certifications, etc.)
5. If the job required any special requirements, the employer should also prepare and attach documentation for “business necessity.”  Specifically, the employer should prepare:
1. A business necessity letter
2. Documentation that the alien meets this special requirement
3. Documentation that this special requirement is “required” for the position given the nature of the job alone or documentation that the special requirement is in fact “normal” for the industry through comparable job postings

 

FY 2008 PERM Labor Statistics Report (Click Here)