You waited patiently for almost 8 months for the golden ticket: your PERM labor certification, only to be met with a dreadful PERM audit. What made your case be randomly selected for the audit? Between 25% to 33% of all PERM cases are audited. If your case is audited, don’t panic! As long as all recruitment documentation is in order, the process should be painless.
Although it is sometimes impossible to avoid because of the Department of Labor’s (DOL) random selection process, there are certain triggers that can help you avoid falling victim to an audit.
Common audit triggers:
- Jobs requiring a degree but no experience.
- Re-submitted applications after denial within a year.
- Re-submitted applications after the withdrawal of an audited case within a year.
- PERM applications submitted by mail: The majority of the time, PERM applications will be submitted electronically, and I have only seen a couple of cases myself mailed as a last-minute resort.
During a typical audit, the DOL will request evidence of all recruitment efforts made for the job opportunity as required by the regulations. Your legal team should have all newspaper tearsheets, posted notice, and copies of the State Work Force Agency where the job was advertised, along with all applicants’ resumes that inquired about the job opening. This documentation must be clearly labeled. It must be accompanied by a detailed recruitment report from the employer explaining why these applicants were not a good fit. Ensuring all paperwork is properly organized prior to filing your PERM application is essential to the labor certification process.
Targeted audit triggers include:
- Jobs requiring a foreign language.
- Cases where the employer has indicated they had a layoff in the area of intended employment and for the position involved in the application within the last 6 months of filing the PERM application.
- Cases where there is a family relationship between the foreign worker and the owners, stockholders, corporate officers, incorporators, or partners.
- Where the foreign worker has an ownership interest in the business.
In addition to all recruitment efforts, in a targeted audit, the DOL may request several more documents from your employer in order to satisfy a particular prong of their analysis. Common requests will include an organization chart of all corporate/company officers, copies of federal tax returns for the previous years, copies of business licenses, and a statement from the employer addressing issues related to the four prongs listed above.
For example, if the job requires a foreign language, the DOL will likely have your employer address the business necessity prong and explain the unique structure of the business and the need to have an employee with foreign language skills. Depending on the job, this can be a simple explanation. For example, a job requiring an interpreter for a translating company will be translating documents as part of the duties’ main function.
This is not meant to be an exhaustive list, by any means. But we hope it may serve as a guide to help you feel more confident, should your case be audited. While audits can be issued at random, understanding certain audit triggers can mitigate your risk of receiving one.
The PERM Team at Purdy Law
If you are starting a PERM-based green card process, the PERM team at Purdy Law is prepared to address all issues that are specific to your needs and your employer’s specifications. By creating a plan that is unique to your occupation, we will ensure your case makes it through the DOL with ease and success.
