Audits: Causes and Procedures

An audit during labor certification cases occurs when a U.S. Department of Labor (DOL) Certifying Officer (CO) responsible for adjudicating a PERM application requests that the petitioning employer submit recruitment documents in support of its case. When a petitioner submits a labor certification application via ETA Form 9089, DOL does not require any evidentiary documents to accompany the filing. Accordingly, it is possible for a PERM case to be approved on the basis of the facts presented in the application alone.

When is an Audit Triggered?

An audit seeks to verify certain aspects of a labor certification application. A CO has the authority to request an audit if he or she finds a PERM application suspicious in terms of its content, recruitment activities, or the authenticity of the job position. A CO can also randomly select PERM applications for auditing as part of an integrity check to ensure the PERM process is functioning appropriately system-wide.

Since any PERM application may be selected for auditing, employers should assume they themselves will be audited, and thus be prepared to comply with all associated requirements and regulations, even if their applications aren’t selected for auditing in the end.

What Triggers an Audit?

The issues we’ve found to occur most frequently in non-random audits reflect a specific part of the PERM application itself. These triggers include (the letters and numbers in parentheses indicate the part of ETA Form 9089 to which the issue refers):

  • The alien employee beneficiary has an ownership interest in the employer or a familial relationship with the employer (C9).
  • The job requirements include a foreign language requirement (H13).
  • The job requirements for the occupation are beyond what is considered “normal” for the same or related occupations (H12).
  • The alien employee beneficiary accrued his or her training or experience with the petitioning employer (J21) or received payment for education from the employer (J22).
  • There are strikes, lockouts, and/or layoffs involving the employer in the same or related occupation in the area of intended employment (N6 and I26).
  • The alien has work experience in an alternate occupation (H10).
  • The job opportunity is a combination of occupations, i.e. not just a singular job, as determined by O*Net (H15).
  • The sponsoring employer received some kind of payment from the alien employee beneficiary for the PERM application (I-23).

Audit Process

If a PERM application is selected for an audit, the employer will receive an audit letter that explicitly lists the additional documentation to be submitted; establishes a deadline for submission of the required documentation, which is 30 days from the date of the audit letter; and advises that the application will be denied if the required information is not received by the deadline.

COs have the discretion to grant a maximum of one extension of 30 additional days. Failure to respond to the audit within the stipulated timeframe is considered a refusal to comply with administrative remedies, which will result in the application being deemed abandoned and therefore denied. If this occurs, no recourse is available for the employer, whether administratively or judicially. Further, COs have the authority to thereafter require the employer to conduct supervised recruitment for any future labor certification filings for a period of up to two years.

After receiving the employer’s audit response and reviewing the evidence provided, the CO can conclude that the documentation is complete and consistent with responses on the original ETA Form 9089, and then approve the application. Conversely, if the CO deems the documentation to be deficient or the response to be unsatisfactory, then the application may be denied. A third possible result is that the CO may request even more documentation, or order that the employer undergo supervised recruitment.

DOL has stipulated that an employer cannot withdraw an application under audit without providing a response. In other words, if DOL requests an audit of your PERM application, then you can’t escape the audit by simply claiming the application is no longer valid or applicable. However, after submitting the required response and evidence, an employer is permitted to withdraw its PERM application rather than wait for the lengthy audit procedure to conclude.

Overall, PERM labor certification is an extremely complicated and time-sensitive procedure. We recommend that you consult with an experienced immigration attorney. Over the years, Zhang & Associates has successfully handled hundreds of PERM cases. If you would like to contact us, we’re available by phone at (713) 771-8433, or you can visit us at one of our eight U.S. locations. We’re also conveniently available by e-mail at info@hooyou.com. Our attorneys will use their experience, expertise, and teamwork to ensure the highest quality of service for your PERM case.

For more detailed information on PERM labor certification, including minimum requirements and USCIS policies, refer to the following links:

Updated 04/14/2017