DOL Increases Audits of PERM LC Cases04 May 2012
The U.S. Department of Labor (DOL) has audited a significant percentage of PERM labor certification (LC or labor) cases since early 2012. The incidence of PERM audits became noticeably higher around February 2012. As explained here for the benefit of MurthyDotCom and MurthyBulletin readers, many of these audits are randomly issued, while others are aimed at more specific issues.
DOL Confirms Increase in Audits and Supervised Recruitment
The DOL has confirmed that its focus has been shifted from backlog reduction to integrity checks within the PERM labor program. The DOL reports a goal of conducting integrity checks on 30 percent of PERM labor cases, resulting in an increased number of audits and supervised recruitment in these cases.
Supervised recruitment essentially involves the DOL instructing the petitioning employer to engage in additional efforts to recruit qualified U.S. workers, with applications directed to the DOL Atlanta Processing Center, rather than directly to the employer. While supervised recruitment is not particularly uncommon, audits are far more commonplace, in our experience.
Audit Does Not Indicate an Omission
Audits are an inherent part of the PERM labor process, which is attestation based. Perm labor applications are filed online without supporting documentation that establishes the employer’s recruitment efforts, the result of those efforts, or any other such proof. The employer attests to the content of the filing, including the completion of required recruitment, but has no mechanism to provide proof with the filing.
The DOL has the option to audit any PERM labor case to verify the accuracy of the statements in the PERM LC filing and otherwise assess the case. Thus, an audit is simply another facet of the PERM process, which is why the employer is required to retain certain case-related proof in an audit file, should the DOL wish to review those documents. The audit does not mean that a mistake was made or that the right proof was omitted from the filing. It means that the particular case has been selected by the DOL for closer review.
Possible Reasons for Audits
A PERM labor audit typically is requested on a purely random basis. Random audits generally request proof of all recruitment efforts, the results of recruitment (resumes), and the employer’s reasons for disqualification of applicants. It is also mandatory for the employer to establish the business necessity of any education and/or experience requirement that exceeds the DOL’s view of what is normal for the position.
Audits Focus on Travel Requirements
From time to time the DOL chooses to focus on certain issues. There is currently a noticeable audit focus on PERM LCs filed for positions that require travel and/or relocation. These positions, for roving employees, are common within the IT consulting industry. Certainly, not all such cases are audited. The DOL, in some instances, selects a case because the employee is living and working outside of the employer’s geographic area. In these cases, the employer may be required to verify the requirement of travel for the job, and establish that the advertisements included this information. Employers may need to provide itineraries, contracts, client lists, and other related proof of the travel requirement. The DOL generally reviews the content of the advertisements to verify the wording, as related to the travel requirement.
The DOL confirmed that existing guidance on the procedures for PERM labor cases for roving employees has not changed. In such cases, it is permissible to conduct recruitment based upon the location of the company headquarters. The job advertisements must include appropriate information regarding the existence of a travel and relocation requirement.
Employers filing PERM LCs and employees for whom such cases have been filed should not be unduly alarmed if the DOL chooses to audit their PERM labor cases. While certainly such audits can disclose any flaws in cases, if everything is in order, it should be possible to respond properly. Audits are likely in many PERM cases, and required documentation should be readily available. Questions or concerns about PERM cases and audits may be discussed in a consultation with an experienced, knowledgeable attorney at the Murthy Law Firm.
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