UNITED STATES – Navigating PERM audits: A comprehensive guide.

December 3, 2024

By Justin Kadich, Senior Immigration Attorney, Go Global Immigration

The Program Electronic Review Management (PERM) is extremely important for employers that want to sponsor foreign workers for Employment Based Green Cards. Administered by the Department of Labor (DOL), the PERM process requires employers to establish that there were no able, willing, qualified, and available U.S. workers before they submit the PERM on behalf of the employee.

Logistically, this is done through the employer advertising the job in the area of employment and then reviewing the resumes of any applicants to determine if they meet the requirements listed in the postings. This is done to ensure that the hiring of a foreign worker does not adversely affect the job opportunities, wages, or working conditions of U.S. workers. It establishes that the employer made genuine efforts to recruit U.S. workers for the role but could not find a suitable candidate. For most employers and foreign nationals, the PERM process serves as the foundation of employment-based immigration, representing the first step toward securing a Green Card.

Employers must carefully follow the specific steps required to meet the DOL’s PERM requirements. These include conducting a robust recruitment process, documenting all related efforts, and submitting an application that accurately reflects the job’s requirements and the recruitment outcomes. The recruitment process itself may also include screening qualified candidates, and clearly documenting the legal reasons for disqualifying any applicants. Proper adherence to these steps is vital, as even minor errors or inconsistencies in the application can trigger closer scrutiny or an audit.

The DOL uses PERM Audits as a significant enforcement mechanism to ensure the employer’s full compliance with the PERM regulations. Audits allow the DOL to verify that employers have genuinely attempted to hire U.S. workers and followed all procedural requirements. While many audits are conducted randomly, others may result from specific triggers such as unusual job requirements or industry-specific patterns.

The purpose and mechanics of PERM audits.

When employers file a PERM application, they attest that they have made genuine efforts to recruit U.S. workers and have followed all procedural guidelines. A PERM audit involves a detailed review of an employer’s documentation to verify these claims. This process often includes a request for recruitment records, candidate resumes, and a report outlining reasons for rejecting U.S. applicants. Audits serve to maintain the integrity of the PERM process, ensuring that foreign workers are only hired when no qualified U.S. worker is available.

The DOL conducts audits with clear objectives: to identify and address instances of non-compliance and to deter employers from bypassing legal requirements. These audits play a dual role in enforcing labor certification regulations and protecting the U.S. workforce from unfair competition. While some audits are triggered by specific factors, such as inconsistencies in the application or unusual job requirements, a significant portion is randomly selected. This randomization ensures fairness in enforcement and helps the DOL maintain a baseline level of compliance across industries.

The likelihood of a PERM application being audited is considerable. The DOL has stated its goal to conduct integrity checks on approximately 30% of PERM cases. This statistic underscores the importance of preparing for the possibility of an audit, regardless of how straightforward an application might seem.

Reasons your PERM application may be audited.

Applicants and their employers are often curious to know whenever their PERM was selected for audit while others are approved without audit. While the DOL is not typically transparent about their reasons, based on our experience, the following are the most likely reasons for a PERM audit:

• Random selection
• A foreign language requirement for the position
• A family relationship between the employer and the applicant
• An applicant with ownership interest in the employer
• Layoffs in the same or related occupation
• The worker will work remotely
• The employer utilized an employee referral program
• Inconsistent or missing information in the PERM application

It should also be noted that audits may be triggered not only by the job or applicant characteristics, but also based on the industry, employer, or occupation, especially if the company has a history of compliance issues in the PERM process.

Steps to take when a PERM audit is notified.

Receiving a PERM audit notification can be daunting, but prompt and organized action is essential to ensure a smooth resolution. The first step is to thoroughly review the audit notice issued by the DOL. This notice will outline the specific documentation and information the DOL requires, as well as the deadlines for submission. Both the employer and, if applicable, their legal counsel will receive the notice. Carefully understanding the request and adhering to the deadlines are critical, as late or incomplete submissions can lead to denial of the PERM application.

The following are the most-requested items by the DOL as part of a PERM audit:

• Copies of all recruitment advertisements;
• Copies of applicant resumes and applications (for all candidates that apply for the position); and
• A recruitment report that describes the recruitment steps, number of applicants and the legal reason(s) for their disqualification (since a PERM cannot legally be filed if there is a qualified and willing US worker).

Once the notice has been reviewed, employers should gather all relevant documentation to support their application. Employers should review these materials to ensure they clearly demonstrate compliance with the PERM requirements. For example, the recruitment report must provide legitimate, job-related reasons for disqualifying U.S. candidates. Compiling this information in an organized and comprehensive manner strengthens the audit response.

Finally, employers should focus on crafting a detailed and well-structured response to the DOL. The response should address every point raised in the audit notice and provide evidence of compliance with the PERM regulations. It is advisable to work closely with legal counsel during this process to ensure accuracy and thoroughness. Timely submission of the response is paramount, as delays can jeopardize the application. Employers should also prepare for potential outcomes, which may include approval, denial, or a request for additional information. If your application is denied, you may need to explore options for appeal or resubmission. Based upon experience, it is expected to take around 3-5 months for a final decision regarding the PERM from the DOL. During this period, the PERM will remain pending.

The impact of PERM audits on employers.

PERM audits can have significant implications for employers, particularly surrounding the timelines and logistics of their hiring processes. One of the most immediate impacts is the delay in processing the PERM application. While the typical processing time for a PERM application ranges from several months to over a year, an audit can extend this timeline by several additional months. These delays can create challenges for employers trying to maintain workforce continuity, especially when a foreign worker’s legal status or work authorization depends on timely approval.

Beyond delays, audits can strain an employer’s administrative and financial resources. The documentation requests from the DOL often require companies to dedicate considerable time and effort to compile and verify records. For smaller organizations or those unfamiliar with the PERM process, this can divert attention from core business operations. Additionally, errors or omissions in the audit response can lead to application denial, requiring employers to restart the PERM process from scratch, incurring further expenses and time losses.

The long-term impact of PERM audits extends to the employer’s reputation and compliance history with the DOL. A pattern of audits or findings of non-compliance can result in heightened scrutiny of future applications, increasing the likelihood of additional audits. This can also affect the company’s ability to attract and retain foreign talent, as prospective employees may view delays or complications in the Green Card process as a risk. However, employers who approach audits as opportunities to refine their recruitment practices and improve compliance can enhance their ability to navigate the PERM process more efficiently in the future. By doing so, they can minimize disruptions and maintain a strong position in the competitive landscape for global talent.

Conclusion

By understanding the audit reasons and process, you can navigate the complexities of a PERM audit with confidence. While most audits appear to be randomly issued, it is vital to explore other possible reasons for PERM audits and address those issues to ensure that your company is fully compliant with the PERM requirements and regulations. Taking this step to view a PERM Audit as an opportunity to analyze your PERM program will make sure that the PERMs have the highest likelihood of success and can decrease the number of PERM audits in the long-term.

Finally, it should be noted that if a PERM is audited, it is expected to increase processing by several months. Therefore, this consideration should be considered by the employer to minimize the likelihood of a foreign worker in the US maxing out of legal status or work authorization in the United States since sometimes an applicant will need the PERM certification and I-140 approval to renew their H-1B visa in the US.

Newland Chase and Go Global Immigration have extensive experience in supporting clients with PERM applications and audits. Reach out to us if we can help.

This immigration update is for informational purposes only and is not a substitute for legal or scenario-specific advice. Furthermore, it is important to note that immigration announcements are subject to sudden and unexpected changes. Readers are encouraged to reach out to Newland Chase for any case- or company-specific assessments.