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Bloggings: October 24, 2007

by Joel Stewart

Editor's note: Here are the latest entries from Joel Stewart's blog.

October 21, 2007

PERM Audit Checklist: 10 Important Points

At a recent conference of the Central Chapter of AILA, I was pleased to participate on the PERM panel with Deborah Townsend (Panel Leader), Robert Cohen, and Jennifer Roeper. Due to the large number of PERM audits now being initiated by DOL, Deborah decided to dedicate most of the Panel's time to discussing how to identify PERM questions and answers that may result in audits. Although audits may be purely random, one may assume, of course, that audits, like traffic stops, are prompted if not by a perceivable defect then by some kind of profiling technique.  Audits are usually issued in boiler-plate language, not always stating the purpose of the audit, and Employers can not always understand whether a specific defect needs to be addressed in the audit (such as a restrictive requirement requiring business necessity) or whether the audit is just intended to do a routine check of the Employer's PERM file.  Either way, one should draft PERM applications with careful attention paid to the most audit-prone issues. Here are the 10 most audit-sensitive issues:

(1) "C-9" asks whether the employer is a closely held corporation, partnership, or solo proprietorship in which the alien has an ownership interest, or is there a familial relationship between the owners, sotckholders, partners, corporate officers, incorporators, and the alien? Here the corporate relationship and alien relationship is easy to understand, but defining the "familial relationship" is another story. The PERM regulation does not define it! If the answer is "Yes," you should expect an audit.

(2) "H-9" asks, "Is a foreign educational equivalent acceptable?" Remember that this refers to an evaluation of a full diploma, and not to an evaluation based on a combination of education and experience.

(3) "H-12" inquires whether the job opportunity requirements are normal for the occupation. The issue here is how to reconcile diverse definitions and interpretations bearing on "normal requirements, such as date from the O*Net Job Zone Levels, SVP, Prevailing Wage Levels, FAQ's, Stakeholder Meeting Summaries, GAL's, Regulations and other sources of "law." The opinion of the Panel members varied on whether the answer would be "Yes" or "No" in the following hypo: (a) the job opportunity has a Job Zone Level of "4", (b) a Master's Degree is required as the primary requirement in "H-4", and (c) Bachelor's of Five Years Progressive Experience is required in "H-8." The determination of what is normal is an area of great controversy, with good arguments on all sides. The answer to "H-4" in this hypo would be  "Yes." However, there should be no additional experience requirement in "H-6." Since a Master's Degree would use up the a total of four years education, training or experience, and Job Zone Level Four allows only four years of SVP.

(4) In "H-13" a yes for foreign language requirement should result in an audit (about 99.9 % probability), unless the job itself requires the language to be used, such as the position of Translator. (Caveat: Don't take anything for granted. I had a case years ago in Region IV for a Translator, and the CO did ask for business necessity, even though the language was the business was to translate.)

5) The "Magic Language" should be placed in Item "H-14," but must only be used if (a) the alien is working for the employer and (b) the alien qualifies by virture of alternate requirements instead of the primary requirements. Thus, if the alien has a Bachelor's plus five years progressive experience, and the primary requirements are a Master's Degree, and the alien is working for the Employer (for example, with an H-1B), the Magic Language is Required:  "Any suitable combination of education, training and experience is acceptable."

(6) "H-15" inquires where the application involves a job opportunity that includes a combination of occupations. If you add the duty, "Ask clients if they want coffee or tea," to the position of secretary, the job would then contain a combination of job duties, since the O"Net (and the DOT before the O*Net) does not include serving beverages as part of the job description. Serving coffee and tea is the function of a waitress, not a secretary!

(7) Domestic positions, whether live-in or live-out, are likely to be audited. See "H-17"and "H-18". Live-in positions will not only be audited because they are domestic positions, but because they have a live-in requirement which is universally viewed as restrictive. Live-out positions will be audited simply because they are domestic positions, but will not be subject to a business necessity test.

(8) Payment of Fees. In "I-23" a "Yes" answer is required if the alien paid the out-of-pocket expenses for the PERM case (like newspaper recruiting). Only the Employer can pay the PERM expenses. Also, the alien also may not pay attorney fees for the Employer. This means that (a) the Employer may pay all the attorney fees, both for himself and for the alien or (b) the alien may pay for his own attorney fees, but in that case the employer may not pay for his own fees. The attorney who represents the alien may not represent the employer. In other words, the Employer and Alien may not divide payment of Attorney Fees. However, the alien may pay for his attorney fees, and the employer may proceed pro se. 

(9) Strikes, Lockouts and Layoffs. These are embodied in "I-24" through I-26". Clearly, a "Yes" answer to any of these should result in an audit.

(10) Finally, in "J-21" and "J-22" DOL inquires whether the alien gained experience with the employer or received payment for education from the employer. "Yes" answers will probably result in an audit, as the CO will need to see the details and circumstances, to determine if an approval is possible.