DOL Increases Audits Of PERM LC Cases
The U.S. Department of Labor (DOL) has audited a significant percentage of
PERM labor certification (LC or labor) cases since early 2012. The incidence
of PERM audits became noticeably higher around February 2012. As explained
here for the benefit of MurthyDotCom and MurthyBulletin
readers, many of these audits are randomly issued, while others are aimed at
more specific issues.
DOL Confirms Increase in Audits and Supervised
The DOL has confirmed that its focus has
been shifted from backlog reduction to integrity checks within the PERM
labor program. The DOL reports a goal of conducting integrity checks on 30
percent of PERM labor cases, resulting in an increased number of audits and
supervised recruitment in these cases.
Supervised recruitment essentially involves the DOL instructing the
petitioning employer to engage in additional efforts to recruit qualified
U.S. workers, with applications directed to the DOL Atlanta Processing
Center, rather than directly to the employer. While supervised recruitment
is not particularly uncommon, audits are far more commonplace, in our
Audit Does Not Indicate an Omission
Audits are an inherent
part of the PERM labor process, which is attestation based. Perm labor
applications are filed online without supporting documentation that
establishes the employer's recruitment efforts, the result of those efforts,
or any other such proof. The employer attests to the content of the filing,
including the completion of required recruitment, but has no mechanism to
provide proof with the filing.
The DOL has the option to audit any PERM labor case to verify the accuracy
of the statements in the PERM LC filing and otherwise assess the case. Thus,
an audit is simply another facet of the PERM process, which is why the
employer is required to retain certain case-related proof in an audit file,
should the DOL wish to review those documents. The audit does not mean that
a mistake was made or that the right proof was omitted from the filing. It
means that the particular case has been selected by the DOL for closer
Possible Reasons for Audits
A PERM labor audit typically is requested on a purely random basis. Random
audits generally request proof of all recruitment efforts, the results of
recruitment (resumes), and the employer's reasons for disqualification of
applicants. It is also mandatory for the employer to establish the business
necessity of any education and/or experience requirement that exceeds the
DOL's view of what is normal for the position.
Audits Focus on Travel Requirements
From time to time the DOL chooses to focus on certain issues. There is
currently a noticeable audit focus on PERM LCs filed for positions that
require travel and/or relocation. These positions, for roving employees, are
common within the IT consulting industry. Certainly, not all such cases are
audited. The DOL, in some instances, selects a case because the employee is
living and working outside of the employer's geographic area. In these
cases, the employer may be required to verify the requirement of travel for
the job, and establish that the advertisements included this information.
Employers may need to provide itineraries, contracts, client lists, and
other related proof of the travel requirement. The DOL generally reviews the
content of the advertisements to verify the wording, as related to the
The DOL confirmed that existing guidance on the procedures for PERM labor
cases for roving employees has not changed. In such cases, it is permissible
to conduct recruitment based upon the location of the company headquarters.
The job advertisements must include appropriate information regarding the
existence of a travel and relocation requirement.
Employers filing PERM LCs and employees for whom such cases have been filed
should not be unduly alarmed if the DOL chooses to audit their PERM labor
cases. While certainly such audits can disclose any flaws in cases, if
everything is in order, it should be possible to respond properly. Audits
are likely in many PERM cases, and required documentation should be readily
available. Questions or concerns about PERM cases and audits may be
discussed in a consultation with an experienced, knowledgeable attorney at
the Murthy Law Firm.
"This article originally appeared in Murthy Bullentin on www.Murthy.com. Reprinted with permission"
About The Author
Attorneys from the Murthy Law Firm. Sheela Murthy is the founder of the Murthy Law Firm, which consists of approximately 85 full time attorneys, paralegals, and support staff, who provide excellent service in the area of U.S. Immigration Law to clients worldwide. The Murthy Law Firm handles cases ranging from Fortune 500 companies, mid-sized and small companies, to individuals who are undergoing the U.S. immigration process. A graduate of Harvard Law School with an LL.M degree and herself an immigrant, Attorney Murthy understands the complexities of immigration and empathizes with those faced with its challenges
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.
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