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Successful PERM Labor Certification Approval without Audit Despite Familial Relationship and No Sunday Newspaper

Our office recently received a straight approval of a PERM labor certification application where (1) a familial relationship exists between the foreign worker and owner of the company and (2) no Sunday newspaper exists in the area of intended employment. This remarkable case stands out, defying the usual complexities and delays associated with PERM applications.

Familial Relationship

Despite the existence of a familial relationship in our case, the PERM application was approved without triggering an audit, which is a typical measure undertaken by the Department of Labor (DOL).

PERM applications are filed electronically via the DOL’s Foreign Labor Application Gateway (FLAG) system. An employer is not required to submit supporting documentation when a PERM application is filed. Therefore, the DOL implements a quality control process in the form of audits to ensure compliance with all PERM regulations. In the event of an audit, the DOL typically requires:

  • Evidence of all recruitment efforts undertaken (copies of advertisements placed and Notice of Filing);
  • 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, the number of hires, and, if applicable, the number of U.S. applicants rejected, summarized by the specific lawful job-related reasons for such rejections.

There are 2 types of audits issued by the DOL: Random and Targeted. The DOL will randomly select approximately 30% of PERM applications for audit. The DOL can also issue targeted audits that are triggered by certain aspects of the PERM application. If a targeted audit is issued, the DOL may request additional information or documentation that is directly related to the issue that triggered the audit. One of the audit triggers includes cases where there is a familial relationship between the foreign worker and the owners, stockholders, partners, corporate officers, and/or incorporators.

The DOL takes a broad approach when defining familial relationships. A familial relationship includes “any relationship established by blood, marriage, or adoption, even if distant.” It continues by including “cousins of all degrees, aunts, uncles, grandparents and grandchildren” and even “relationships established through marriage, such as in-laws and step-families” in the definition. 

The DOL takes the position that the job opportunity and/or the company’s recruitment efforts could be called into question if the beneficiary has family within the sponsoring company. There is a presumption the recruitment efforts might not have been conducted in good faith, in a fair and open manner that ensures the offered permanent position is bona fide. In other words, the DOL is concerned the sponsoring employer may hold a favorable bias towards the family member and may be influenced by the relationship to the disadvantage of qualified U.S. workers.

Typically, the DOL will issue an audit to further inquire into the job opportunity to determine whether it is a bona fide job opportunity and good faith recruitment was actually conducted. The sponsoring employer must provide evidence “there has been no undue influence and control and that these job opportunities are available to U.S. workers.” The DOL will look into the “totality of the circumstances” to determine whether the job opportunity truly exists or if the sponsoring employer is merely attempting to circumvent the green card process for a family member.

In our client’s case, the recruitment process was exclusively conducted by an employee of the sponsoring company who had no familial relationship to the foreign worker. This was specifically noted on the PERM application, as well as the fact that the beneficiary had no involvement in the recruitment process.

No Sunday Newspaper in Area of Intended Employment

In order to file a PERM application, the employer must test the U.S. labor market through various recruitment methods for able, willing, qualified, and available U.S. workers. If no such U.S. worker is found through good faith recruitment, the employer can file a PERM application on behalf of the beneficiary. 

One of the mandatory recruitment steps is placing an advertisement on two different Sundays in the newspaper of general circulation in the area of intended employment most appropriate to the occupation and most likely to bring responses from able, willing, qualified, and available U.S. workers. 20 CFR 656.17(e)(1)(i)(B)(1).

However, not all areas of intended employment have a newspaper with a Sunday edition. This is especially true in some rural areas. The regulations state, if the job opportunity is located in a rural area of intended employment that does not have a newspaper with a Sunday edition, the employer may use the edition with the widest circulation in the area of intended employment. 20 CFR 656.17(e)(1)(i)(B)(2).

The DOL at the 2022 AILA Annual Conference addressed how employers should complete the mandatory Sunday newspaper advertisements when there is no Sunday newspaper of general circulation in the area of intended employment. For example, there are currently no Sunday newspapers in North Dakota as the state only has weekend editions released on Saturdays. The DOL indicated that employers should still use the weekend edition of the newspaper. However, when completing the relevant section in the PERM application, the employer should indicate “No,” there is no Sunday edition of the newspaper in the area of intended employment. Then after including the name of the newspaper in the relevant field, the employer should indicate “Weekend Edition – No Sunday edition available.”

In our client’s case, the area of intended employment was in a rural area that did not have a Sunday newspaper. This was confirmed through extensive research on each newspaper in the area of intended employment, as well newspapers right outside the area of intended employment. After conducting thorough research into which newspaper had the widest circulation, our client posted the advertisement on two different Wednesdays. In filling out the PERM application, we followed the guidance given at the 2022 AILA Annual Conference. Although the nonexistence of a Sunday newspaper in the area of intended employment is not an audit trigger per se, it can still pose a significant challenge to address considering the amount of research required to identify the best option for this mandatory recruitment step.

Unfortunately, PERM processing times have drastically increased over the last few years with no signs of improvement for the future. Currently, the DOL is taking almost 12 months to process PERM applications. If a PERM application is audited, this will add 5 more months to the total processing time. It is important to note that premium processing is not available for PERM applications so there is no way around these lengthy processing times.

In achieving a PERM labor certification approval without undergoing an audit, our office triumphed over the complexities posed by the existence of a familial relationship and navigated the challenge presented by the absence of a Sunday newspaper in the area of intended employment. Our meticulous approach, comprehensive documentation, and strategic handling of these hurdles paid off as we were able to successfully sidestep an audit. Successfully sidestepping an audit proved pivotal, sparing us from tacking on an additional 5 months to the already lengthy processing time for the PERM application.

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Reddy Neumann Brown PC. has been serving our clients for over 25 years. Our team is dedicated to helping our clients navigate the U.S. business immigration system by offering prompt, practical, and professional advice. 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 Brown PC’s PERM Labor Certification Department, where she assists clients in the beginning stages of the employment-based green card process. Camille guides clients through the PERM Labor Certification process from start to finish and has handled hundreds of PERM applications throughout her career.