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< Back to current issue of Immigration Daily

Bloggings on PERM Labor Certification

by Joel Stewart

The DOL now has policies covering two different situations involving withdrawal of PERM application which may bring unfavorable consequences to the Employer.

First, if a PERM application is undergoing an audit, the Employer may withdraw the application, but the audit will continue.  Presumably the DOL would suspect that the application was withdrawn because the Employer feared the need to provide documentation.  A situation that might choose to be prejudicial after an audit would be one in which the advertising and recruitment were not conducted correctly. The DOL has opted to request resumes in many audits and now subjects them to great scrutiny.

To review the regulation, see the following:

 656.20   Audit procedures.

(a) Review of the labor certification application may lead to an audit of the application. Additionally, certain applications may be selected randomly for audit and quality control purposes. If an application is selected for audit, the Certifying Officer shall issue an audit letter. The audit letter will:

(1) State the documentation that must be submitted by the employer;

(2) Specify a date, 30 days from the date of the audit letter, by which the required documentation must be submitted; and

(3) Advise that if the required documentation has not been sent by the date specified the application will be denied.

(i) Failure to provide documentation in a timely manner constitutes a refusal to exhaust available administrative remedies; and

(ii) The administrative-judicial review procedure provided in 656.26 is not available.

(b) A substantial failure by the employer to provide required documentation will result in that application being denied under 656.24 and may result in a determination by the Certifying Officer pursuant to 656.24 to require the employer to conduct supervised recruitment under 656.21 in future filings of labor certification applications for up to 2 years.

(c) The Certifying Officer may in his or her discretion provide one extension, of up to 30 days, to the 30 days specified in paragraph (a)(2) of this section.

(d) Before making a final determination in accordance with the standards in 656.24, whether in course of an audit or otherwise, the Certifying Officer may:

(1) Request supplemental information and/or documentation; or

(2) Require the employer to conduct supervised recruitment under 656.21.

An FAQ further explains that the withdrawal will not stop the audit:

In the event of an audit, can an application be withdrawn?

An application can not be withdrawn once it has been selected for audit. If circumstances have changed such that the application is no longer valid or applicable, the application must be withdrawn. If an application is selected for audit, the employer can not forego the audit by claiming the application is no longer valid or applicable. The employer will be held to the audit provision standards and possible resulting consequences.
 

It is not known what, if any, would be the penalty for an employer to refuse  to cooperate with an audit. For one thing, an Employer may have perfectly valid reasons, such as lack of interest, cost considerations, unavailability of the alien worker and changed business plans.

Second, if an Employer withdraws an application after being selected for supervised recruitment, the employer must then file all new applications for the same alien under supervised recruitment.  This is done by mailing the PERM application to DOL and leaving Part I in blank.

A recent FAQ explains how this works:

What are the consequences of an employer requesting to withdraw an application undergoing Supervised Recruitment?

While OFLC/ANPC may grant an employer's request to withdraw an application undergoing supervised recruitment and the employer then files a new application meeting all regulatory requirements, the future application for the same foreign worker as in the withdrawn application will be subject to supervised recruitment pursuant to 20 CFR 656.21. Additionally, where the OFLC/ANPC determines it appropriate, all other applications filed by the employer for any foreign worker or job opportunity may also be subject to supervised recruitment. An employer that wishes to file a future application for the same foreign worker as in an application withdrawn while undergoing supervised recruitment must do so by completing the ETA Form 9089, except Section I, Recruitment Information, which will be completed after submission at the instruction of the OFLC/ANPC. The employer must file the above referenced application by mail to the Atlanta National Processing Center at the following address:

U.S. Department of Labor
Employment and Training Administration
Office of Foreign Labor Certification
Attention: Supervised Recruitment Certifying Officer
P.O. Box 56625
Atlanta, Georgia 30343

Repeated requests to withdraw different applications undergoing supervised recruitment will be carefully reviewed and may evidence a pattern or practice of the employer's failure to comply with the supervised recruitment process, and may subject the employer to debarment from the permanent labor certification program for a reasonable period of no more than three years pursuant to 20 CFR 656.31(f)(1)(v). 

Attorneys have explained that when a notice of audit or supervised recruitment is issued, and the employer does not wish to continue to pursue certification for valid reasons, the employer may notify the certifying office and provide documentation, if appropriate, regarding the withdrawal.

12. What are the consequences of an employer requesting to withdraw an application undergoing Supervised Recruitment? While OFLC/ANPC may grant an employer's request to withdraw an application undergoing supervised recruitment and the employer then files a new application meeting all regulatory requirements, the future application for the same foreign worker as in the withdrawn application will be subject to supervised recruitment pursuant to 20 CFR 656.21. Additionally, where the OFLC/ANPC determines it appropriate, all other applications filed by the employer for any foreign worker or job opportunity may also be subject to supervised recruitment. An employer that wishes to file a future application for the same foreign worker as in an application withdrawn while undergoing supervised recruitment must do so by completing the ETA Form 9089, except Section I, Recruitment Information, which will be completed after submission at the instruction of the OFLC/ANPC. The employer must file the above referenced application by mail to the Atlanta National Processing Center at the following address:

 

U.S. Department of Labor Employment and Training Administration Office of Foreign Labor Certification Attention: Supervised Recruitment Certifying Officer P.O. Box 56625 Atlanta, Georgia 30343 Repeated requests to withdraw different applications undergoing supervised recruitment will be carefully reviewed and may evidence a pattern or practice of the employer's failure to comply with the supervised recruitment process, and may subject the employer to debarment from the permanent labor certification program for a reasonable period of no more than three years pursuant to 20 CFR 656.31(f)(1)(v).

U.S. Department of Labor Employment and Training Administration Office of Foreign Labor Certification Attention: Supervised Recruitment Certifying Officer P.O. Box 56625 Atlanta, Georgia 30343 Repeated requests to withdraw different applications undergoing supervised recruitment will be carefully reviewed and may evidence a pattern or practice of the employer's failure to comply with the supervised recruitment process, and may subject the employer to debarment from the permanent labor certification program for a reasonable period of no more than three years pursuant to 20 CFR 656.31(f)(1)(v). 

 


About The Author

Joel Stewart works exclusively in the area of immigration law. Joel Stewart has joined the Immigration Practice Group of the law firm of Fowler White Boggs as Of Counsel in the Firm's Fort Lauderdale office. Joel Stewart is the editor and author of THE PERM BOOK. He is Past President of the South Florida Chapter of the American Immigration Lawyers Association (AILA) and is a nationally recognized authority on employment-based immigration matters and a popular speaker at immigration seminars for national and local bar associations throughout the United States. Mr. Stewart has been writing the BALCA Case Summaries for AILA and Immigration Law Today since 1987 and authors official AILA articles and publications such as the Visa Processing Guide for Procedures at U.S. Consulates and Embassies in Brazil and Portugal. Mr. Stewart writes weekly columns Brazilian newspapers and serves as in-house Counsel for the Brazilian Consulate in Miami, Florida.


The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.


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