DOL Conducting Frequent PERM Audits

What Employers Need To BE Aware Of?

In the past one week, the U.S. Department of Labor (DOL) has conducted more then the normal number of targeted audits of PERM labor certification applications at the Atlanta and Chicago National Processing Centers (NPCs). The audits were specifically targeted on the correctness of the requirements laid down by the employers for the specialty occupation.

The targeted audits indicate that DOL has either found or suspects some discrepancy regarding the issue of requirements that have been set forth by the employers. Since more then one application has been audited, it is a possibility that this is more a random audit conducted just to maintain the integrity of the PERM process.

What are PERM Audits?

PERM or Program Electronic Review Management allows employers to file Labor Certification Applications entirely electronically and no documents are needed unless DOL requests an audit. A PERM audit is a request by the DOL for the employer to provide documents that support the information filled provided in the PERM application.

The audit helps the DOL determine issues such as whether the job requirements are too restrictive, if the wage offered is at par with the prevailing wage, if the employer’s recruitment efforts adequately tested the U.S. labor market.

Even though an audit is not general practice, an employer should keep all the documented evidence regarding the issues we mentioned readily available in the event of an audit request.

PERM Audits are generally of two types –

  1. Random audits, that require the employer to send in all the supporting documentation to verify every bit of information mentioned in the application. This is done to periodically maintain the integrity of the process.
  2. Targeted audits request for documented proof of some particular information provided in the application.

Employers take note: As the audit requests are not indicated in the PERM system, the employers are advised to keep tabs on their incoming mail, as they will have only 30 days from the date on the audit letter to respond. It is possible to request an extension under special circumstances e.g. the information is not available immediately or needs to be mailed from abroad etc.

Targeted Issue- Job Requirements

With the DOL focusing on job requirement issue, employers will be wise to look into the information being filed in for future applications. The requirements of a certain position should not at any way exceed or disagree with the experience standards set by DOL for that position. IF there is any discrepancy, the employer will be required to justify it.

Recruitment Standards as Set by DOL for professional level occupations

  • Job Order to be placed with State Workforce Agency (SWA) for 30 days
  • Two (2) Sunday print ads must be placed in a newspaper of general circulation in the geographic area of the proposed place of employment between 30 days and 180 days prior to application filing
  1. The employer’s name must appear in the ad
  2. The ad must apprise applicants of the job opportunity
  3. A descriptive job title, name of the employer, and the means to contact the employer may be sufficient
  4. Job site identification required where the job site is unclear (e.g., company headquarters is elsewhere, or employer has multiple job sites)
  5. Additional information permitted provided the same requirements also appear on the Form ETA 9089
  6. Employers may substitute one national journal ad for one Sunday newspaper ad where the position requires experience and/or an advanced degree
  7. Three additional recruitment steps required – employers may submit documentation of any 3 of the following types of recruitment activities:a.      Job fairs

    b.      Employer’s website ads

    c.       Job search website

    d.      On-campus recruiting

    e.      Trade or professional organizations

    f.        Private employment firms

    g.      Employee referral program with incentives

    h.      Campus placement offices

    i.         Local and ethnic newspapers

    j.        Radio and television ads

*If the employer has in-house media for recruitment, the employer must utilize this medium also.

Incase the employer mentions any specific skill requirements, which varies from the standard requirements as set by DOL, the employer will need to verify the need for them by presenting it as business necessity.

Also, while the beneficiary needs to conform to this experience standard, he or she cannot include the experience gained working with the sponsoring employer.  Such experienced can only be submitted incase the work was done with a subsidy, affiliate or sister concern of the employer which has a different corporate tax ID number.

NOTE: “A U.S. worker is able and qualified for the job opportunity if the worker can acquire the skills necessary to perform the duties involved in the occupation during a reasonable period of on-the-job training”

Recruitment Standards for non-professional occupations

Pre-filing recruitment requirements do not apply to applications for Schedule A (non-professional) occupations, college or university teachers, and sheepherders

Recruitment Report

After the recruitment efforts are over, the employer will to prepare a signed Recruitment Report. This report is only given to DOL in the event of an audit.
Report of recruitment results must contain:
1.      Description of recruitment steps undertaken and results achieved
2.      Number of applicants hired
3.      Number of U.S. workers rejected, categorized by the lawful job related reasons for rejection

If the audit requests the actual resumes of all applicants, the employer must provide that too. Therefore, the employer should keep the Recruitment Report along with supporting documentation for five years from filing PERM.