Increased PERM Audits : January 2008 Posted Jan 25, 2008 ©MurthyDotCom The U.S. Department of Labor (DOL) recently released updated information that is important to those undergoing the labor certification process, whether as petitioning employers or as foreign national beneficiaries. The DOL provides insight and confirmation that audits in PERM cases are on the rise, and that processing times have increased. Also confirmed is the anticipated issuance of a new PERM form. ©MurthyDotCom PERM Form ETA 9089 Expected Summer 2008 ©MurthyDotCom The DOL indicates that it will release a new ETA 9089 form used for PERM labor certification filings. The anticipated release is sometime in the summer of 2008. The current ETA 9089 form expires in March 2008, so the DOL will cover the lapse by extending the validity of the current form. ©MurthyDotCom Rates of Audits Increase by 44 Percent ©MurthyDotCom The DOL confirmed that it is using audit procedures in an increasing number of PERM labor certifications. We at the Murthy Law Firm have noticed this change, and the DOL confirmed an increase in audits over the past few months. The DOL reported that, as of the end of 2007, roughly 44 percent of the pending PERM cases were in "audit review." The stated reason for this increased scrutiny is to "fully implement the regulations and ensure the integrity of the PERM program." ©MurthyDotCom The audit of a PERM labor certification is an audit of the case file. PERM audits have become common in instances where the job requirements exceed what is considered normal by the DOL. Since PERM labor certifications are filed based upon sponsor attestations (without the need to provide supporting documentation unless audited), the DOL is seeking documentation that should be within the audit file prepared by the sponsoring employer as part of the PERM process. It is not to be confused with, for example, DOL audits of H1B Labor Condition Application violations, where investigators are deployed to the company to review records and files. The PERM audit is a letter from the DOL asking for certain documentation. ©MurthyDotCom PERM Processing Times of 60 Days Will Extend in Audit Cases ©MurthyDotCom The DOL has stated that their normal processing times for PERM cases continue to be within a 45-to-60-day timeframe. However, the 44 percent (at the time of this writing) of cases with audits may take longer. It has been our experience that cases with audits can take considerably more time. ©MurthyDotCom Conclusion ©MurthyDotCom Even before the increased audit rates, it was necessary for employers to fully prepare and retain audit files in PERM cases. Employers should expect and plan for audits, and must be able to back up the requirements set forth in the labor certification, as well as the attestations contained in the application. Experienced attorneys can advise employers as to the types of issues likely to generate audits, as well as the best way to prepare for or respond to all such audits. Copyright © 2008, MURTHY LAW FIRM. All Rights Reserved
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