PERM Update from DOL: Approximately 30% of PERM Petitions Being Audited
Author: Jian Joe Zhou
The American Immigration Lawyers Association (AILA) 2012 annual conference is being held in Nashville, TN, from June 13 to June 16. Zhang & Attorneys, L.P., sent a delegation consisting of attorneys Jerry Zhang, Jian Joe Zhou and Lynn Greening, to attend the largest annual event of AILA. AILA is a national association of more than 11,000 attorneys and law professors who practice and teach immigration law.
On June 14, 2012, certain statistics from the Department of Labor were reported at the conference. For example: within the last six months of the fiscal year of 2012 (starting on October 1, 2011), the Department of Labor has received 20,900 PERM petitions. Approximately 29% of all of those applications were randomly chosen for audit. Around 50%-55% of the audited petitions were denied after audit review. The Department of Labor has indicated that its long-term goal is to audit approximately 30% of petitions, in order to maintain the integrity of the PERM system.
When filing a PERM petition, the sponsoring employer is only required to fill out recruitment information through an online system—the employer does not need to provide any evidence of recruitment postings and application review. Therefore, there is the theoretical loophole that some petitioners may take a chance and file a PERM petition without conducting real postings and recruitment. In order to deter such possible fraud, the PERM system authorized DOL to randomly select PERM petitions for audit; once a petition is audited, the petitioning employer is required to submit all posting documents, and DOL may also require other documents. A petitioner must respond to an audit within 30 days. Failure to respond to an audit not only results in the denial of the petition, but also leads to DOL’s disbarment of the employer’s eligibility for filing future PERM petitions, or leads to supervised recruitment for future petitions. Since late 2011, DOL audit notices have not only requested standard evidence for postings and recruitment efforts, but have also required the employer to submit resumes of all US workers who applied for the position, as well as the employer’s reason for rejection, and records of the employer’s efforts to contact the applicants in a timely manner.
The Department of Labor is very stringent regarding the requirements for recruitment advertisements. Even very minor clerical errors, such as a typo or missed information in an advertisement, or submission of an incomplete newspaper tear-off page may result in the denial of a PERM petition. Moreover, if DOL finds that the employer failed to contact US workers in a timely manner, or they find that the employer rejected an applicant who possessed the required qualifications according to the resume submitted, but was then denied by the employer after a brief interview without detailed reasons, the PERM petition may be denied. Therefore, any audited cases are naturally exposed to higher risks; the increasingly higher percentage of audits increases the risks for all PERM petitions.
To successfully pass audit review, it is very important that throughout the entire process, the employer and attorney prepare a PERM petition as if it will be audited. For example, when designing job descriptions and requirements, an attorney needs to strike a balance between adding in special requirements (which may require documentation of business necessity in an audited case) and the employer’s burden to use legitimate reasons to reject an applicant (namely, in a position without special requirements, the employer will have less solid reasons to reject applicants). Also, when handling advertisements and postings, an attorney should carefully review each recruitment advertisement (there are a total of six recruitment advertisements for any professional position) to make sure that all content and postings comply with PERM regulations and DOL guidelines. When preparing recruitment documents, an employer will need to follow the attorney’s legal guidelines regarding the timeframe for conducting screening and interviewing, as well as lawful reasons for rejection. Further, an employer needs to carefully document all details of the process.
The PERM labor certification process is an extremely complicated procedure. Employers should seek competent professional assistance for this time-consuming and complex procedure, to avoid unnecessary mishaps.
About the Author:
Attorney Jian Joe Zhou is a Co-managing Attorney at Zhang & Attorneys L.P.. Joe is one of the leading practitioners in PERM and pre-PERM labor certification petitions, especially in assisting small and mid- sized businesses in PERM filings. With more than 12 years of experience in employment and business immigration law practice, Joe is an expert in PERM, EB-1, NIW, and EB-5 immigration petitions, as well as in H, L, and E worker visas. He can be reached at firstname.lastname@example.org.
Founded in 1996, Zhang & Attorneys, L.P. offers legal services to clients nationwide in all aspects of U.S immigration law. We have successfully handled thousands of immigration cases.
At Zhang & Attorneys, L.P., our attorneys and supporting professionals are committed to providing high-quality immigration and non-immigration visa services. We specialize in NIW, EB-1, PERM, and I-485 cases. In the past sixteen years, we have successfully helped thousands of clients get green cards. If you plan to apply for a green card, please send your CV to Attorney Jerry Zhang (email@example.com) for a free evaluation.
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