6 November 2019

PERM Audit Triggers

Ever wonder why some PERM applications are audited? Although PERM audits can be issued at random, there are some audit triggers you should watch out for from case initiation.

When an employer files a PERM application on behalf of a beneficiary, the Department of Labor (DOL) will sometimes audit the case (About 30% of PERM applications are audited). The DOL typically requires evidence of advertisements placed and all recruitment efforts made for the job opportunity. If a case happens to be selected for Supervised Recruitment, this can add a considerable amount of time (and expense) to the PERM process. During Supervised Recruitment the DOL oversees the process directly and the employer is required to conduct additional recruitment efforts.

Even if your case is audited, there is no need to panic; as long as all documentation is in order from the time the PERM application is filed, the process should be smooth.

Although it is sometimes impossible to avoid an audit because of the DOL’s random selection process, there are certain audit triggers that we are aware of. Understanding each audit trigger helps minimize the risk of audit by allowing us to create a plan of action for your specific case.

Some triggers include:

  1. Trade related jobs
  2. The Employer is a public school
  3. 50% of cases where the job requires a degree but no experience (where the primary education required is a Masters or Bachelors degree): For example, where the job requires a Masters degree and no experience.
  4. 50% of cases where the employer has indicated that they have had 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
  5. Jobs that require less than a Bachelors degree

Triggers for both audits and Supervised Recruitment include:

  1. Re-submitted applications after denial within a year
  2. Re-submitted applications after withdrawal of an audited case within a year
  3. PERM applications submitted by mail: The majority of the time PERM applications will be submitted electronically and I have only seen a couple of cases myself mailed as a last minute resort

In addition to audit and Supervised Recruitment triggers, there are some “INACTIVE” triggers that the DOL is NO longer issuing audits for:

  1. H-1B Dependent employers
  2. Employers with a history of roving
  3. Employers who recently have had layoffs: Instead of auditing ALL cases where a layoff is involved, DOL has limited it to 50% as mentioned above

Some audit triggers that I have noticed through practice include:

  1. Positions involving a foreign language requirement- especially where it is unclear whether the position would normally require a foreign language to perform the job
  2. Positions requiring certifications that are not typically required for a job
  3. Employer use of an Employee Referral Program as an additional form of recruitment (advertising) – this is especially true where an employer does not have many employees. For example, if an employer only has 5 employees, the DOL will wonder if the use of an employee referral program was the best way to test the labor market for U.S. workers.
  4. Requirements not normal for the occupation- For instance, if an employer requires a Masters plus 5 years of experience for a Software Engineer position, the DOL may want to take a closer look at this case. In this instance, the DOL may ask for a business necessity explanation. In order to establish business necessity, an employer must demonstrate that the job duties and requirements (1) bear a reasonable relationship to the occupation in the context of the employer’s business and (2) are essential to perform the job in a reasonable manner. Basically, the DOL wants the employer to provide evidence to show the special business need for the requirements provided.

Audits can be issued at random for PERM applications, but understanding certain audit triggers can mitigate your risk of receiving an audit. If you are starting the PERM based green card process, the best thing to do is cover all your bases and discuss your specific situation with a qualified immigration attorney.

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