Exploring the PERM Audit Process: How to Prepare and Respond Effectively
While the majority of PERM applications are randomly selected for audit, it is essential to be prepared for the possibility of an audit and know how to respond effectively. In this article, we will explore the PERM audit process, including its purpose, triggers, and the steps involved. We will also provide valuable insights and tips on how employers can adequately prepare for a PERM audit and navigate the response process with confidence.
Understanding the PERM Audit Process
The PERM audit process is designed to ensure that employers comply with the regulations and requirements set forth by the Department of Labor (DOL). The DOL conducts audits to verify the accuracy and truthfulness of the information provided in the PERM application.
Triggers for a PERM Audit
While the majority of PERM applications are randomly selected for audit, there are certain audit triggers to watch out for. Please see below several cases which can trigger a PERM audit.
- Applications where the job requires a degree (Master’s or Bachelor’s) but no experience. 50% of these cases are audited.
- Applications where the job requires less than a Bachelor’s degree
- Applications where the employer has indicated having 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. 50% of these cases are audited.
- Applications that involve a trade related job
- Applications where the employer is a public school
- Applications with requirements that are not normal for the occupation (overstating requirements)
- Where there is a familial relationship between the foreign worker and the stockholders, corporate officers, incorporators, or partners
- Where the foreign worker is one of a small number of employees (10 or less employees)
- Where the employer is a closely held corporation or partnership in which the foreign worker has an ownership interest
- Applications involving a foreign language requirement where it is unclear whether the position would normally require a foreign language to perform the job
- Positions requiring certifications that are not typically required for the position
While audits can be initiated for various reasons, it is crucial to note that not all applications are audited.
Steps in the PERM Audit Process
- Audit Notification: If your application is selected for an audit, you will receive a notification from the DOL specifying the documents and information they require for review.
- Document Compilation: Gather all the requested documents, including evidence of all recruitment efforts undertaken, copies of applicants’ resumes and completed employment applications, and a recruitment report signed by the employer describing the recruitment steps undertaken and the results achieved.
- Submission: Compile the requested documents and submit them to the DOL within the specified timeframe (30 calendar days).
- Review and Determination: The DOL will thoroughly review the submitted documents and assess whether the employer has complied with the regulations and provided sufficient evidence.
- Outcome: Based on the review, the DOL will either approve the application or deny it.
Preparing for a PERM Audit
Being prepared for a PERM audit is crucial to ensure a smooth and successful process. Here are some important steps employers can take to prepare effectively:
- Maintain Accurate Documentation: Keep detailed records of the recruitment process, including job postings, resumes received, interview notes, and any other relevant documentation.
- Engage an Experienced Immigration Attorney: Working with an experienced immigration attorney can provide valuable guidance and support throughout the PERM application process. They can review your application, advise on potential weaknesses, and assist in compiling the necessary documentation.
- Stay Updated on Regulatory Changes: Immigration laws and regulations are subject to change. Stay informed about any updates or revisions that may impact the PERM process and ensure compliance with the latest requirements.
Responding to a PERM Audit
If your PERM application is audited, it is essential to respond effectively to address any concerns raised by the DOL. Here are some tips to help you navigate the response process:
- Review the Audit Notice Thoroughly: Carefully read through the audit notice to understand the specific issues raised by the DOL and the documents they require for further review.
- Seek Professional Guidance: Consult with your immigration attorney to formulate an appropriate response strategy. They can help you address the issues raised and provide guidance on presenting additional evidence if needed.
- Organize and Submit Supporting Documentation: Compile and submit all requested documents promptly.
Reddy & Neumann, P.C. is dedicated to helping our clients navigate the U.S. business immigration system. Because the U.S. business immigration system can be tricky, it is always best to contact a qualified immigration attorney to help come up with the proper solution for each individual case.
By: Camille Joson
Camille Joson is a Senior Associate Attorney in Reddy & Neumann, P.C.’s PERM Labor Certification Department, where she assists clients in the beginning stages of the green card process.