PERM Labor Certification Audit On the Rise

When the labor certification process known as PERM (Program Electronic Review Management) was introduced in 2005, the Department of Labor (DOL) stated that the application should be approved within 45 to 60 days.

This was welcome news because under the old system, processing took years.

In the first two years of PERM, labor certification processing indeed took a quick pace. Our office filed applications for different jobs and on behalf of employers in different industries without any problem.

We received approvals even way before the 45-day period was over.

Recently, however, things have changed. The DOL has started to carefully scrutinize labor certification applications. It has issued audit letters in many cases. This has delayed the processing for an indefinite period.

We are not sure if this change in policy has something to do with the closing on December 21 of the Backlog Elimination Centers (BEC). The BECs were established in Dallas and Philadelphia to process the old pre-PERM cases.

Audit is a request for the petitioner’s employer to provide documentary evidence to show that the DOL requirements have been met.

Under the old system, the employer was required to submit newspaper advertisement tear sheets and other documents in support of the application. Under PERM, the employer may submit the ETA 9089 form electronically or by mail. The supporting documents are not included in the filing.

The PERM regulations, however, obligate the employer to maintain for five years all supporting documents including the prevailing wage determination, job postings, business necessity letter, newspaper or internet advertisements, resumes, interview questions and a comprehensive report of its recruitment efforts.

There are issues that are raised in the audit request and which must be answered satisfactorily. Some of these issues refer to job requirements such as education and experience, wage offer, proper recruitment procedure and employer’s ability to pay the wage offer.

In our first audit case, for instance, we were requested to justify why a pre-school teacher needed a Bachelor’s degree plus two years experience. In response to the audit, we submitted copies of all advertisements to test the labor market, notification to the collective bargaining agent of the filing of a permanent employment certification, the recruitment report, the prevailing wage determination that was based on the existing collective bargaining agreement and an explanation of business necessity for our clients’ education and experience requirements.

The employer’s audit response must be submitted within 30 days. The certifying officer will review all the documents and if satisfied, he/she will approve the labor certification application. A labor certification is a necessary step in most employment-based immigrant visa petitions.