DOL Issues Audits for LC Payment Irregularities09 Nov 2012
The audit process is used by the U.S. Department of Labor (DOL) to confirm that employers are complying with PERM requirements and that the attestations in PERM labor certifications are correct. Cases are sometimes selected for audit at random. In other cases, the DOL targets specific case concerns. A recent DOL trend in PERM audits is occurring that requires sworn statements pertaining to the exchange of certain improper payments between the employee (or any other third party) and the employer. The following discusses such audits to clarify this matter for our readers.
Attestation Requires Employer Confirmation of Payment for PERM
In addition to requests for documentation pertaining to recruitment efforts and related subjects, the DOL has begun issuing requests for declarations from the employer and foreign national regarding details of payment for the labor certification. Under current regulations, costs associated with PERM labor preparation and filing must be paid by the employer. There are limited exceptions for certain established third-party relationships. The payment-related audits require employers and sponsored workers to sign declarations, under penalty of perjury, verifying whether any payments were provided to the employer either by the employee or by any other third party related to obtaining the PERM.
The audit requests specify that such fees include the employer’s attorney’s fees, advertisement costs, administrative fees, and any other associated costs or fees. The audit further specifies that such payments include wage concessions, kickbacks, bribes or in-kind payments, as well as free labor and/or any other form of payment for services essential to the labor certification process.
Employers and sponsored employees should be aware of the possibility that they could receive a request for a sworn declaration regarding PERM-related payment matters. It is important to comply with the applicable regulation, and to be able to honestly attest to full compliance in response to an audit. Employers with concerns as to whether their current PERM related cost payment practices comply with the regulatory changes that went into effect on July 16, 2007 may wish to consult with us at the Murthy Law Firm.
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