PERM Audits and Trends with PERM Denials05 Aug 2015
After a PERM labor certification (LC) case is filed, the U.S. Department of Labor (DOL) is permitted to audit the case. The purpose of these audits is to verify that the petitioning employer is complying with the applicable legal requirements. These audits can either be targeted to specific issues, or can result from random selection.
Reasons for PERM LC Audits
The PERM LC is the first step in most employment-based, permanent residence (green card) cases. The PERM process is complex, with detailed requirements for recruiting and screening potentially qualified U.S. workers. The process is attestation-based, meaning that employers certify that they have completed all of the compulsory steps, but do not need to submit corresponding proof with the PERM filing. Hence, the DOL has the authority to audit PERM filings to verify compliance with all legal requirements.
Overview of PERM Audits
During a standard audit, the DOL will request a copy of the PERM application under audit, bearing the original signatures of the employer, employee, and attorney (if applicable). The standard request also asks for all advertisement documentation, as well as the mandatory notice of filing, recruitment report, and prevailing wage determination (PWD). Most audits also include case-specific requests. Examples of this type of request are set forth below.
The DOL is tasked with protecting the U.S. labor market. It therefore must verify that the petitioning employer has completed the necessary testing of the labor market for all able, willing, available, and qualified U.S. workers for the position for which a PERM LC is filed. To that end, in an audit, the DOL requests copies of all resumes for workers who applied for the position. The resumes must be accompanied by a recruitment report that identifies when and how the individual was contacted and/or interviewed and why the applicant was eliminated as a candidate for the position.
Declarations Regarding PERM Expenses
All PERM-related costs and expenses must be paid for by the employer. To verify compliance with this requirement, DOL audit asks for declarations from the employer and employee attesting that the employer paid for the entire PERM LC process. This includes legal fees and advertisement costs, and serves to prohibit wage deductions or concessions, in-kind payments, kickbacks, and indirect payments to third parties.
Employer Must Establish Business Necessity for Qualifications
The concept of “business necessity” is important in PERM filings, particularly for professional positions. The DOL often asks for this type of proof for positions wherein the employer requires a higher level of education and/or experience than the DOL deems normal for the position. Typically, establishing business necessity for the stated job requirements means providing documentation to show 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 within the industry, in general. Many cases filed in the employment-based, second preference (EB2) category for positions requiring a bachelor’s degree and five years of experience receive this type of audit request.
On-the-Job Training Not Feasible for U.S. Workers
If certain skills necessary to perform the required job duties could be acquired via a reasonable period of on-the-job training, the lack of such skills should not be used as a basis to disqualify a U.S. worker from the position. This is another point that may be raised by the DOL in a PERM LC audit.
Reasons for PERM Denials
The DOL can deny a case following a PERM LC audit if it is determined that the advertisements did not comport with requirements set forth in the regulations. Similarly, if the employer omits or fails to fully address any portion of the audit request, the DOL is likely to deny the PERM LC. These types of problems generally can be avoided by laying the proper groundwork initially in anticipation of common audit concerns and by being thorough in the audit response.
Recent Trends of PERM Denials
There is a trend toward increased scrutiny by the DOL regarding what is referred to as business necessity for a particular job requirement. As explained, the employer is obligated to ensure that the job duties and requirements bear a reasonable relationship to the occupation in context of the employer’s business and are essential to reasonably perform the job. Failure to adequately address this concern in an audit response will typically result in a denial.
Similarly, the DOL has begun to demonstrate increased skepticism regarding claims that required skills could not be imparted to a U.S. worker through a reasonable period of on-the-job training. Some skills can be learned on the job fairly easily by an otherwise qualified person. Other skills are not quickly acquired and the employer may not have the ability to wait for a worker to complete extensive training. In responding to such a request in an audit, the employer must be able to provide information and evidence specific to the job, the industry, and the employer that explains why such training is impractical.
Preparing a strong PERM LC case from the start of the process and through the filing is a key to success in this highly regimented area of employment-based immigration law. The Murthy Law Firm has extensive experience in all aspects of the PERM LC process, including audits. Our skillful team is available to provide assistance and representation with these matters.
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