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What is PERM Audit?

The PERM process allows the employer to file the application to the Department of Labor without submitting any supporting documentation. The regulations guide the employer as to what is required for filing a PERM application, and instruct that all documentary evidence should be maintained by the company for a period of five years.

The PERM AUDIT is merely a request by the government agency to the employer to provide documentary evidence, which proves all information that the employer attested to in the PERM application. The audit determines that all statutory and regulatory requirements have been met for the PERM application. The DOL will determine the following when processing the PERM application:

  • Did the employer meet the procedural requirements of the regulations;
  • Was the U.S. labor force tested and no qualified U.S. workers were found;
  • Will the employment of the alien have a damaging effect on wages and working conditions for U.S. workers likewise employed.

Following are few examples of what a PERM audit may review:

  • Are the employer's job requirements too restrictive,
  • Does the wage offered by the employer meet the prevailing wage requirements,
  • Did the employer conducted proper recruitment and adequately test the U.S. labor market.

An employer should gather and organize all documentation into a comprehensive file prior to submitting the PERM application. This documentation should be kept readily available in the event of an audit by the DOL for a period of five years.

The DOL will no longer be issuing "Notice of Findings" (NOFs) as they had previously with the prior RIR and ROR systems. In the past, NOFs had allowed the employer to have an opportunity to correct any oversights that may have occurred in the application and resubmit the application for continued processing. The new PERM system will not issue NOFs, instead an audit letter will be sent to the employer requesting legal analyses and business necessity documentation in reference to the particular application under audit.

Why an audit might occur?

There are 2 types of audits performed by the DOL.

1. The "targeted" audit, which occurs when the DOL finds a specific fault with the application.

2. The "random" audit, which will assist the DOL in ensuring the integrity of the new PERM system and its' regulations.

There are several reasons audit may be trigger for your PERM application.

The DOL will attempt to verify whether or not the company is a bona fide business entity and how many employees are on the company payroll. Smaller businesses will be at a higher risk for these types of audits. The ETA 9089 (PERM application) includes questions regarding how many workers a business employs, and in what year the company started doing business. The answers to these questions may cause the auditors to research the employer's tax identfication number, verify the U.S. address of the employer, and ultimately send out an audit letter to the company to authenticate that the company is a verifiable business entity with the ability to employ the worker.

Another common audit may be the question of ability to pay. Usually the employer provides financial evidence at the I-140 stage of the Green Card process; however, the DOL may issue an audit letter to verify that the employer has the ability to pay the prevailing wage during the PERM review process. The employer will need to prove that the company has sufficient funds to pay the prevailing wage, and show that the company will be putting the alien on payroll on or before the alien's proposed arrival to the United States. The DOL may also audit to obtain a copy of the "Prevailing Wage Determination," that was issued to the employer by the State Workforce Agency (SWA). They will use the prevailing wage determination to verify that the wage listed on the PERM application is correct and valid for the position and location of the job.

Another "red flag," for the DOL auditors is substantial lay offs within 6 months prior to the filing of the application. The DOL is able to cross check databases to determine if the employer has had any lay offs, and would issue an audit requesting documentation that laid off workers were given notification and consideration for the position prior to the filing of the PERM application.

Audit Procedure

The audit letter may include the following information:

  • State the documentation that is to be submitted;
  • State the due date of the requested documentation;
  • Advise that the application will be denied if employer fails to submit the documentation within the alloted time frame, and that no administrative or judicial relief will be available.
  • Once the employer responds to the audit letter, a certifying officer at DOL service center will review the response and decides if the documentation is adequate hence certifying the applicant; additional supplemental information is needed before a decision is made; or that the case is denied and any future labor certifications will need to be prepared under DOL supervised recruitment.

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