What should I do when my PERM is audited?
Abstract: As it is widely known, once the PERM application is audited, the employer will have to comply with all the requested documents by the designated time to submit to the DOL, otherwise, the application will be automatically denied. Many applicants would ask, “What is the cause that leads to my PERM audit? How should I respond to it?” This article will target specific situations when the PERM has been selected for an audit to further help you understand the overall procedure of the PERM audit.
1. Why is the PERM audited?
There are two types of PERM audits:
Random audit: Out of tens of thousands of applications, the DOL randomly selects a minority proportion of the applications to be audited. Unfortunately, the random audit selection is inevitable for everyone, those who have been selected will just have to do their best to meet all the requirements.
Targeted audit: Precautionary measures can usually be taken in response to this type of audit. In response to red flags that might incur audit, the attorney and client should try at all costs to avoid the red flags in the initial preparation stage. For example, if there is a requirement for speaking mandarin for the position such as market research, the petition will likely be audited by the DOL.
2. What are the inducing factors that lead to the PERM audit?
As we all know, a random audit is inevitable. However, what are the factors that may induce a targeted audit? Below, we list out a list of the frequent factors that lead to the targeted audit:
The position description is too general: If the position description is too general, it will likely be targeted audited by the DOL. An example: if the description reads “computer-related position” for a position related to computer programming, it will likely trigger a targeted audit. But if the description for the position is clear and explicit, then the chance for targeted audit is low. An example of a clear position description: Design and develop internet applications using ASP, JAVA, HTML, ACCESS, SQL Server 7.0, Oracle 7.0, C/C++ in windows environment and compile C program to format ASCll data files.”
Involving sensitive factors: If there are sensitive factors involved in the PERM applications (such as the sponsoring employer had recently laid-off employees, etc.), factors as such will likely lead to the petition being audited. For example, if the employer selects “yes” in section 1, column 26 of the submitted 9089 form (there are layoffs in the same or related positions), then the PERM application will likely be audited.
If an employee’s PERM application has been denied before, or the PERM application has been audited and withdrawn, the application submitted within one year in relevance to the denial and withdraw is likely to be audited by the DOL. In this case, the PERM application is likely to be audited in which DOL may recall and review the previous petition file.
Language requirement: A PERM application with a special requirement for language in the position is likely to be audited. Unless people can easily infer that language is an essential part of the position according to the characteristics of the position. For example, Chinese teachers are required to speak Chinese, therefore, PERM application as such will not be audited based on the language requirement. However, the requirement to speak Chinese for the position of a market analyst will likely trigger a targeted audit.
The job duties and the obtained certificates do not correspond: For example, an attorney license requirement for the position of a software engineer, PERM application as such is likely to be audited.
The company has submitted multiple PERMs for the same position: For example, if a computer software company submits the PERM for multiple computer programmer positions, then DOL may randomly select one of the PERM for audit. The DOL will issue an audit notice to one of the PERM applications and at the same time audit other PERMs with similar positions, to confirm whether the PERM applications for these similar positions meet the required job advertisement of PERM.
The requirement for the proffered position: If the “Job requirements for the occupation are beyond “normal” in same or related occupation”, for the PERM position and according to the DOL OES system poses a disadvantage for the U.S. workers, in this case, it is likely to be audited by the DOL.
Small size company: The latest audit trend of DOL is its skepticism toward recruitment by small size companies. If the employer is a company with less than 10 employees, then it will likely receive an audit notice from the DOL.
Family members/ shareholders: Family-based relationship between the employer and the employee, or employee holding shares in the company such as ownership interest. For example, if an employee owns 40% of the shares in the company of the sponsoring employer, a PERM application as such is likely to be audited.
A position that contains a collection of multiple jobs: If the position the employer has submitted on behalf of the employee in the PERM application reveals a collection of multiple jobs, such a PERM is likely to be audited by the DOL. For example, the accountant position submitted by the employer not only contains the job responsibilities of an accountant but also include secretarial responsibilities, PERM application as such is likely to be audited.
Employee Referral Program is used as a recruiting channel by the employer: For some PERM applications, the employer would use the Employee Referral Program as a recruiting channel. PERM application as such is likely to be audited. For more information on green card recruitment, please see “PERM Labor Certification- what are the recruitment requirements?”
The degree requirement for the employee is set too low: If the degree requirement indicates the required degree for the position is to be lower than a bachelor’s degree, associate degree, or no degree requirement, as corresponding to the degree requirement in section H, column 4 of form 9089, PERM application as such is likely to be audited by the DOL. Also, to avoid an audit, when selecting the occupation for section F in form 9089, do not choose the position of “farmworkers, farm, ranch, and aquacultural animals” under SOC Code 45-2093-00.
Trade-related positions: If the SOC code in section F of form 9089 submitted by the employer is found to be consistent with any trade positions listed by the DOL, a PERM application as such is likely to be audited. Trade-related positions that might be found consistent include plumber, electrician, helpers-carpenters, or helpers-painters.
The employer is a public institution: If the employer’s EIN in section C, column 7 of form 9089 submitted is found to be consistent with the EINs of any public institutions listed by the DOL, the PERM application as such is likely to be audited.
Degree and work experience requirement: Position in which the employer has set the requirement for a degree but not for work, 50% of the PERM applications as such are likely to be audited.
The employee has received training or accumulated relevant experience from the employer: If the employee has received relevant training or experience from the employer, PERM application as such is likely to be audited.
The employer has paid tuition fees for the employee: PERM applications in which the employer has paid the tuition fees for the employee has a high chance of being audited.
It is important to note down, as the PERM audit is in process, it is critical that the employer provide reasonable explanations in response rather than withdraw the petitions, also, if the employer is found to behave or operate illegally in its PERM application, such behaviors will lead to the employer being put on the DOL’s blacklist system. The DOL will increase its scrutiny on all PERMs submitted by this employer for a very long time, and all future recruitment activities by the employer can only be conducted under the supervision of the DOL.
3. What materials should the employer prepare in response to the PERM audit by the DOL?
If the PERM application is “unfortunately” selected by the DOL for audit, the employer has 30 days to respond by submitting all relevant and corresponding materials, which include:
Proof of the recruitment report: If applicants are applying for the advertised position during the process of the petition submitted by the employer on behalf of the employee, by the end of the recruitment, the employer should complete a recruitment report summarizing the process including the applicants’ resumes, interview schedules and the reasons for not hiring the applicants.
Proof of application fees: The employer is responsible for all fees involved in the PERM application process. The fees include attorney fees, job advertisement fees, etc. For things that the employer should know before applying for the EB-2/EB-3 green card, please see “What should my employer know before applying for an EB-2/EB-3 employment-based green card?”
Proof of necessity for the employer’s business: If needed, the employer has to provide materials proving the necessity of its business.
The PERM application is a complicated process. If you receive a PERM audit notice, do not worry but be confident that with the assistance of our experienced attorneys, green card approval is not unattainable. Once again, we wish all of you the best of luck with your green card applications!
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Attorney Hui Zeng is a senior partner of Zeng Law Group, PLLC in New York. Attorney Zeng was named as the annual Rising Star for three consecutive years in 2017, 2018, and 2019 by Super Lawyers magazine of Reuters. Only about 2.5% of practicing lawyers in the U.S received this honor. Attorney Zeng was also selected as 2018 Leading Women Lawyers in NYC by Crain's New York magazine.
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