An audit in PERM cases is when a DOL Certifying Officer (CO) responsible for adjudicating a PERM application requests that the petitioner submit recruitment documents in support of their case. When a petitioner submits a PERM (ETA Form 9089) no additional evidentiary documents accompany it. So, it is possible that a PERM case is approved based on the facts of the application alone. An audit, however, is the process by which certain PERM applicants are required to submit proof of their recruitment activities. A CO can request an audit of any permanent labor certification application if he or she finds the application suspicious in its content, recruitment activities, or the authenticity of the job opportunity. The CO can also randomly select PERM applications for auditing as part of an integrity check to make sure the PERM process is functioning appropriately. Since any PERM application may be selected for auditing all employers are required to assume they themselves may be audited, and thus will comply with PERM regulations even if they do not get audited.
The following are the most commonly observed issues in non-random audits that are triggered by some issue in the application itself. The letters and numbers in parentheses indicated the part of ETA Form 9089 that the issue is related to:
If a PERM application is selected for audit, the employer will receive an audit letter that specifically states the additional documentation to be submitted, and establishes a date (30 days from the date of the audit letter) for submission of the required documentation, and advises that the application will be denied if the required information is not received by the deadline. One extension of the deadline by 30 days may be granted upon request at the CO’s discretion. The employer will have to submit all requested documents to the CO in a timely manner. If the employer does not respond to the audit request within the required time, this will be considered a refusal to comply with administrative remedies, the case will be deemed abandoned and denied, and no review will be available, either administratively or judicially. At the discretion of the CO, the employer may be required to conduct “supervised recruitment” for any future labor certification filings for up to two years if audit procedures are not followed by the employer.
After receipt of the response from the employer, if the CO determines that the documentation is complete and consistent with responses on the ETA 9089, then the application will be approved. If the documentation is deemed deficient by the CO, the application may be denied. Alternatively, the CO may request additional documentation or order that the employer conduct supervised recruitment.
The DOL has indicated that an application cannot be withdrawn once it has been selected for audit without an appropriate response from the employer. If an application is selected for audit, the employer cannot forego the audit by claiming the application is no longer valid or applicable. However, upon submittal of the required evidence an employer may withdraw a PERM application rather than wait for the lengthy audit procedure to finish. Employers MUST respond to an audit but may withdraw a petition once they have responded.
PERM labor certification is an extremely complicated and time-sensitive procedure. We recommend that you consult with an experienced and responsible immigration attorney. We have successfully represented many PERM cases. If you would like to contact us, please telephone us at (713) 771-8433 or visit us at one of our six locations. You can also contact us conveniently online by emailing us at firstname.lastname@example.org. Our attorneys will use their experience, expertise, and teamwork to ensure the highest quality of service.
(Updated 10/1/2012 by AD)
For more information on PERM Labor Certification, please refer to the following links:
PERM General Issues