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Preparing for Labor Certification PERM Audits
Posted Feb 13, 2008
©MurthyDotCom
This article was written by the attorneys of the Murthy Law Firm for
Murthy's Corporate Bulletin. If you are an employer or HR manager,
interested in the services offered by our firm, contact our
Corporate Services Manager.
©MurthyDotCom
The first step in nearly all employment-based, permanent
residency ("green card") cases is a labor certification for a specific job
offer. This labor certification is issued by the U.S. Department of Labor
(DOL) and requested through the PERM (Program Electronic Review Management)
system. The local labor market is tested via advertising and other
competitive recruitment before electronically filing the application Form
ETA 9089. The PERM process is attestation-based. This means that the
employer attests to the recruitment steps and other information provided in
the PERM application, but does not supply documentation with the filing.
Instead, it is necessary to create a file with the evidence of recruitment,
as well as information on the company's existence, ability to pay the
offered wage, and the credentials of the foreign national. This file must be
retained for five years after the labor certification approval.
©MurthyDotCom
Under the current Labor Certification PERM system, a Certifying Officer (CO)
at the DOL may audit a labor certification case before its approval, or
during the five-year period after approval. The purpose of this is to verify
the legitimacy of the information provided and attested to in the PERM
filing. As readers of MurthyDotCom and the MurthyBulletin know from our
January 25, 2008 article, Increased PERM
Audits: January 2008, PERM audits have dramatically increased to
roughly 44 percent of all pending cases, according to the DOL. The DOL has
reported that it now has more employees available to perform audits "to
ensure the integrity of the PERM cases." The Murthy Law Firm has an
experienced team of attorneys that successfully responds to DOL audits.
©MurthyDotCom
What Is a PERM Audit?
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An audit of a PERM file should be distinguished from an Internal Revenue
Service (IRS) audit and from a DOL audit of an H1B Labor Condition
Application (LCA) violation. With PERM audits, the DOL does not visit the
petitioning employer and inspect company documents. In the event of a PERM
audit, the CO sends a letter requesting certain information from the PERM
labor certification compliance file. This file must be fully prepared and
maintained, as discussed above. The employer then must reply to the audit
within the 30-day timeframe. A typical audit letter includes a request for
evidence documenting that recruitment steps were completed before the Form
ETA 9089 application was filed. Since the PERM system is attestation-based,
meaning that no documentation proving completion of the required pre-filing
steps is submitted with the application, an audit may be used by the DOL to
ask for those materials.
©MurthyDotCom
Audits may be initiated on a random basis or may target a suspected
deficiency in the PERM filing. For example, an audit of a PERM case might be
based on what is known as "business necessity." By far, the most common type
of targeted audit involves the issue of the business necessity for requiring
a level of education and/or experience that is beyond what the DOL considers
to be the industry norm. These requests can be triggered by the employer
answering "No" to the question H-12 on Form ETA 9089, which asks if the job
requirements are normal for the occupation. Additionally, they can be
triggered when the requirements are determined by the DOL to be beyond those
defined as normal for the job. The normal requirements are determined based
upon the occupational coding system used by the DOL and the specific code
assigned to the job by the State Workforce Agency. This determination of the
DOL, finding that the minimum education and/or experience requirement for
the job is beyond normal, is referred to as exceeding the industry norm for
the position.
©MurthyDotCom
In simple terms, in the situation where the employer answers "no" to
question H-12, the employer itself acknowledges that the job requirements
are not normal for the industry. Alternatively, even though the employer
considers the job requirements to be normal for the industry, the DOL may
require a showing of business necessity is required because the DOL believes
that the employer’s requirements exceed the industry norm for the position.
In these situations, the employer is challenged to provide a strong argument
for business necessity, which can include showing that the DOL’s
occupational coding system is flawed, or that the need for exceeding the
industry norm is a valid business need.
©MurthyDotCom
Murthy Law Firm Handles Client Audits with
Diligent Attention to the Case
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The Murthy Law Firm has an impeccable record of succeeding in PERM audits.
We assess the individual company and case needs, and develop a unique
strategy to address all issues and to make certain that each client is well
served. In every PERM case, we help employers "demonstrate that the job
duties and requirements bear a reasonable relationship to the occupation in
the context of the employer's business and are essential to perform the job
in a reasonable manner" based on an evaluation of the job offered, the
business, the actual education and/or experience requirements of the
employer, and the industry norm. As part of our comprehensive service to our
clients, prior to submitting the PERM application to the DOL, the Murthy Law
Firm prepares a business necessity reply for each case where an audit on
this issue is anticipated. That reply then is retained in the audit file and
available for an immediate response in the event of an audit in the future.
©MurthyDotCom
DOL Indicates More Audits in the Future
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The DOL has made it clear that they are geared toward regularly issuing both
random and targeted audit requests. While audit requests requiring a showing
of business necessity are the most common type of audit, DOL also requests
information and documentation to show compliance with the PERM regulations
in other areas as well. The employer must maintain all required
documentation with regard to PERM filings and seek professional assistance
in advance of audit requests to ensure an uninterrupted and stress-free
operation of business and, hopefully, PERM approvals.
©MurthyDotCom
We at the Murthy Law Firm have developed a comprehensive approach to
responding to PERM audit requests. The approval rate of all PERM cases filed
by our firm, including those applications audited by the DOL, is
exceptional.
©MurthyDotCom
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