News & Insights

PERMs and Audits

PERM is an acronym for the “Program Electronic Review Management” system established under the Department of Labor (DOL) regulations.

It is by getting a PERM certified that a foreign national starts the process to become a lawful permanent resident through employment. This, consequently, launches the journey to U.S. citizenship. All employment-based permanent residency applications (green cards) require a PERM except for the employment-based first category (EB-1) and the employment-based second category (EB-2) with a National Interest Waiver.

The sponsoring employer is responsible for the entire PERM process from recruitment to the filing process. Before filing a PERM for an employee, an employer must conduct a recruitment campaign, which consists of advertising the position and making a good faith effort to hire a U.S. worker.

PERM is a long process that can take up to a year. For this reason, it is imperative to follow every step carefully and get the PERM certified as fast as possible.

Once the PERM is filed, an officer at the DOL, the certifying officer, will either audit or certify the PERM. If the PERM is certified, the immigration process can move forward: filing form I-140, Immigrant Petition for alien worker, then form I-485, Application to Register Permanence Residence (if a visa is available).

If, however, the PERM is audited, the employer will need to provide different documents to the certifying officer before a decision is made. Receiving an audit during the PERM process can cause significant delays.

There are two types of audits: random audits and targeted audits.

The DOL regularly conducts random audits to ensure compliance with the regulations. During a random audit, the certifying officer will request different documents and review them for compliance.

While a random audit cannot be avoided, a targeted audit can be. Targeted audits are triggered by some details during the PERM process that make the certifying officer request more information.

Understanding each audit trigger helps minimize the risk of audit and allows the employer to create a plan of action for each specific case.

Listed below are some factors that might trigger an audit and ways in which an employer can potentially avoid them:

  • A PERM recruitment that requires a degree (Bachelor’s or Master’s) but not necessarily work experience.
    • A certifying officer might want to examine the recruitment closely on the assumption that there should be some U.S. workers with at least the required degree.
  • A PERM filing in which the employer acknowledges a recent layoff.
    • The regulations provide that the employer must first offer the position to the U.S. worker(s) recently laid off. A certifying officer might want to review the recruitment closely and ensure compliance with the regulations.
  • An audit can also be triggered if the employee shares close familial ties with the employer’s representatives or if the employee holds an ownership interest in the company.
    • This will not automatically get the PERM denied. The certifying officer might want to closely examine the recruitment to ensure that the position is a bona fide job opportunity that was made available to all U.S. workers.
  • The PERM recruitment requires knowledge of a foreign language.
    • A certifying officer would want to see whether the foreign language requirement is justified by business necessity, i.e., whether the position would normally require a foreign language to perform the job.
  • Audits can also be triggered when:
    • The PERM recruitment requires certifications that are not typically required for a job.
    • The foreign national beneficiary got his or her training or experience with the petitioning employer or received payment for education from them.
    • The petitioning employer received some payment from the foreign national beneficiary for the PERM Labor application.
  • Sometimes the use of an employee referral program as an additional step of advertisement may trigger an audit.
    • When using an employee referral program, an employer needs to make sure that
      • The employee referral program offers incentives to employees for referral of candidates
      • The employee referral program was in effect during the recruitment effort the employer is relying on to support its labor certification
      • The employer’s employees were on notice of the job opening at issue.

If you are starting the PERM process, the best thing to do is cover all your bases and discuss your specific situation with a qualified immigration attorney.

If your PERM gets audited, there is no need to panic. PLG attorneys will help you provide the necessary documentation to help overcome the audit.

Contact us at mmutombo@patellegal.com and cprescott@patellegal.com

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