The DOL views the streamlined and efficient nature of PERM applications as a key aspect of the labor certification (LC) process. The DOL does not want a constant back-and-forth conversation between petitioner and CO over the validity of an application. Therefore, per regulation, the DOL severely limits the opportunities at which an LC petitioner may submit evidence (supporting documents and legal arguments) relevant to a PERM application.

In the event that a PERM application is audited or denied, there are strict time limits and procedural criteria to be followed in order that a petition for labor certification can be approved. In addition to having limited time to respond to audits and denials, the petitioner must also be aware of the restrictions for submittal of evidence.

Essentially, a petitioning employer has only one opportunity to effectively submit evidence supporting its LC petition. The DOL, in an attempt to maintain the efficiency of the PERM application system, will not allow a petitioning employer to continually submit new evidence. Even if the petitioning employer met the requirements set forth in PERM recruiting regulations, if they are not able to supply documentation of this fact when requested, their petition will be denied.

Timeframe for Audits and Appeals

After a LC petition is submitted to the Department of Labor (DOL) for review there are three possible outcomes: the petition will be approved and labor certification will be granted, the petition will be audited and supporting documentation for the petition will be requested before a decision is made, or the petition will be denied.

Not only PERM applications with noticeable deficiencies are subject to audit. Any PERM application may be audited due to the DOL’s policy of random selection for auditing. So, whether a PERM application is letter-perfect or lacking in some requirements there remains the possibility of it being audited.

If a petition is audited, the DOL Certifying Officer (CO) responsible for making LC determinations will inform the petitioner, by audit letter, of the reason for auditing and the specific additional documentation requested. The audit letter will also specify a date, 30 days from the date of the letter, by which time the petitioner will need to submit the requested documentation. Failure to submit documentation in a timely manner will result in a petition being denied (it may also result in required supervised recruitment for LCs filed by the petitioner for the next 2 years). In limited situations the CO may allow, at his/her own discretion, up to an additional 30 days for the receipt of supporting documents.

If a petition is denied, either with or without an audit, the petitioner may file either a motion to reconsider OR a request for review within 30 days after the date of the CO’s decision. Reconsideration appeals will be handled by the CO who denied the petition. Depending on previous audit procedures, the petitioner may be able to submit evidence during reconsideration. However, if the petitioner opts to bypass “reconsideration” by the CO and appeal directly to the Board of Alien Labor Certification Appeals (BALCA) for “review,” he/she will likewise bypass the opportunity to submit evidence for consideration.

“Motion to Reconsider” Appeals

“Reconsideration” is an opportunity for the petitioner to make an argument about the CO’s decision to deny a petition. If a motion to reconsider is filed in response to a denial without prior audit, the petitioner may submit new documents/evidence that they previously could not have submitted. However, if a motion to reconsider is in response to a denial based on an audit, any new evidence submitted will not be considered in the CO’s final determination.

The DOL lists two possibilities for motions to reconsider:

1. PERM application is filed -> CO audits the application -> Petitioner responds to the audit with relevant documents -> CO issues LC decision -> If the decision is a denial, the petitioner may file a motion to reconsider -> CO reconsiders the application based on evidence submitted in the audit response
2. PERM application is filed -> CO denies the application (without audit) -> Petitioner files a motion to reconsider with supporting evidence-> CO reconsiders the application based on evidence submitted by petitioner with the motion to reconsider

In both of these scenarios it is important to note that there is only one round of evidence submittal. As stated above, the DOL designed and implemented the PERM regulations to ensure processing efficiency. The DOL does not want to have a labor certification program in which there is a constant submittal and review of evidence. If the PERM petitioner had the opportunity to submit evidence earlier in the audit/appeal process, but did not, they have essentially lost their ability to do so.

If, after reconsidering the petition, the CO still denies the application the case will automatically be sent to BALCA for review.

“Request for Review” Appeals

“Review” is a judicial review of the case by BALCA. BALCA reviews the legality and due process of a CO’s final determination based on regulation and previous case law. An important aspect of a BALCA review is that it is limited to the previously submitted evidence upon which the CO made his/her decision. This means that, once a case goes to BALCA for review, any new evidence submitted by the petitioner will NOT be considered in the appeal.

Appeals before BALCA usually last a long time before a decision is made. Therefore, it is not advised to forego the “reconsideration” step in the appeal process, although it is possible to do so. Experienced attorneys will be able to recognize the appropriate methods to approach a motion to reconsider, and thus make the need for a lengthy BALCA review process less likely. Not only does reconsideration take less time, but it may also present the petitioner with the opportunity to submit evidence, whereas the BALCA review does not.

Examples:

1. An employer at Company A files a PERM petition with the DOL. Upon submittal, the petition is selected for auditing. The CO sends an audit notification to Company A explaining why the petition is being audited and requesting proof of three documents used by Company A in the recruiting stage. Company A sends 2 of these documents to the CO, but fails to send the third. The CO denies the petition based on a lack of evidence that the employer carried out all steps of recruiting under consideration. After receiving the letter of denial from the CO, Company A sends a request for reconsideration along with evidence of the third document. The CO denies reconsideration because Company A had the opportunity to submit this document earlier. CO maintains the denial based on the fact that Company A did not submit adequate proof of the recruiting process when requested.
2. Employer Smith files a PERM petition with the DOL. Upon submittal, the petition is denied by the CO for listing the wrong date for one of the two mandatory Sunday newspaper ads. Employer Smith files a request for reconsideration and attaches with it copies of both Sunday newspaper ads as evidence that the employer did comply with the recruiting requirements. Employer Smith did not previously have the opportunity to submit this evidence so the CO considers it for the final determination. CO reconsiders based on the evidence and finds that the employer did comply with recruiting requirements and the reason for denial was typographical. CO reverses his/her decision and the petition is approved.
3. Company C files a PERM petition with the DOL. After being audited, sending in requested documentation, having certification denied by the CO, requesting reconsideration and still being denied, Company C’s case and supporting evidence are forwarded to BALCA for review. Company C sends BALCA new evidence from its recruitment file to support its case in the appeal. However, BALCA does not recognize this new evidence and does not use it in making its final ruling.
4. An employer’s PERM application is denied by the CO without audit. The employer files a request for review, and her case file is sent to BALCA. The employer submits supporting documents as evidence to BALCA for consideration. However, since the employer chose not to file for reconsideration, she has lost her chance to submit evidence. BALCA decides the case based only on evidence that was available at the time of the CO’s decision.

Conclusion

Any submitted PERM application may be subject to audit, either because of deficiencies in the application or due to random selection. In the event that a petition is audited, full understanding of the audit and appeals process is necessary to ensure that evidence is submitted at the appropriate time and stage of review. Thus, every petitioning employer must be prepared to deal effectively with an audit, since mistakes made after submitting a PERM application may be fatal to an otherwise sound petition.

Cases without responsible attorney representation may overlook the specificity of the DOL’s audit and appeal procedures. Even if the petitioning employer did follow the regulations exactly during recruiting, if evidence of such is not submitted during the appropriate moment in the audit or appeal process, a PERM case will almost assuredly be denied.

Any employer seeking to file a LC petition on behalf of an alien beneficiary should familiarize themselves with these specific DOL audit and appeal regulations. Having complied with all regulatory requirements in the recruiting process is no guarantee that a PERM application will be approved. Having an understanding of post-filing PERM regulations is necessary to ensure that an LC petition will be approved in the event of auditing.

It is highly recommended, considering the complexity of the regulations mentioned above, that petitioning employers or potential alien beneficiaries contact a responsible attorney with thorough understanding of LC regulations and extensive PERM experience. Auditing should not be taken to mean that a PERM application will be denied. But, without the counsel of an attorney with practical experience, mistakes during auditing could result in denial for an otherwise flawless application.

For more information on PERM Labor Certification, please visit our library on PERM Labor Certification and our recent PERM articles.