Understanding the PERM process and its common issues and red flags
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The initial step on the path to obtaining a green card involves securing a PERM Labor Certification. The Department of Labor (DOL) administers the PERM program to ensure that employers are not using the immigration system to take jobs from U.S. workers. The employer shall undergo a recruitment process to sponsor an immigrant to verify that there are no qualified U.S. workers available for the position.
Once verified that there is no U.S. worker that is willing, able, available, and qualified to fill the position, the employer shall file the actual PERM ETA Form 9089 Application Page 6 for Permanent Employment Certification.
However, because this is an involved process that could result in the beneficiary not getting the position, many employers attempt to bypass the PERM process and give misleading results. To combat this, the DOL conducts audits to maintain the integrity of the program.
There are two types of audits that can occur during processing:
Random Audit: In some cases, the DOL may randomly select PERM applications for audit. These random audits are not triggered by any specific concerns or irregularities in the application but are part of the DOL’s effort to ensure program integrity and compliance with labor certification requirements. Employers should be prepared to respond to a random audit if their application is selected.
Targeted Audit: A targeted audit occurs when the DOL has specific concerns or suspicions about a particular PERM application. This type of audit is triggered by the DOL’s suspicion of potential violations, inaccuracies, or irregularities in the application. The DOL may request additional documentation and information from the employer to address these concerns during a targeted audit.
Common Issues and Red Flags
Each PERM audit applicant will receive a DOL Certifying Officer (CO). The CO can request an audit-based on suspicious responses or selection at random. In some cases, the application may spark an audit about the sponsored worker’s skills and attributes.
The following are some of the common issues that flag and audit:
- The prospective immigrant is related to the employer
- The prospective immigrant intends to own a company
- There are fewer than 10 employees working for the employer
- The position has a foreign language requirement
- The qualifications for the position are beyond what is normally required
- The prospective immigrant obtained professional experience or educational payments from the employer
- The U.S. employer has had protests or layoffs occurring in the specific field of interest
- The prospective immigrant’s professional experience is related to a separate field
- The position requires multiple occupations
- The prospective immigrant made a payment to the employer for filing the PERM application (I-23)
Responding to a PERM Audit Request
Employers are given 30 days to respond to a DOL audit. In general, the responses can be prepared quite quickly because the attorney or employer is required to create an audit file while going through the PERM process. The audit file must contain the following:
- All of the recruitment materials (i.e., dated screenshots of the advertisements from the day each went up and came down, including the state job order);
- The recruitment report;
- Resumes received from applicants;
- The prevailing wage determination used on the 9089;
- All notices and postings;
- Business necessity letters if necessary; and
- Evidence of any relevant layoffs that occurred prior to the recruitment.
It’s important to respond to a PERM audit request promptly and accurately to maximize your chances of a successful labor certification and green card application process. Consulting with an immigration attorney is highly recommended to navigate this complex process effectively. Schedule a consultation with our immigration attorney here.