DOL Tightens PERM Auditing and Supervision

Jian Joe Zhou, Attorney at Law

On July 8, 2008, the U.S. Department of Labor (DOL) made two announcements regarding the PERM labor certification process. The first press release involved the implementation of DOL-supervised recruitment for PERM cases filed by a Pittsburgh-based law firm. Supervised recruitment requires the employer to receive advanced approval from the department for all recruitment efforts to ensure that U.S. workers are fully considered for available positions. In addition, the applications submitted for the PERM position under advisement are directed first to DOL who will then forward them to the employer.  The employer has to make contact with each and every applicant referred by DOL in a timely manner and has to report the disposition of each and every application to DOL in the end of the recruitment process.  According to PERM regulations, the DOL may institute supervised recruitment when, among other reasons, it has concerns that an employer, attorney or agent may not have complied with department regulations or properly recruited or considered U.S. workers for available positions.

The other DOL press release stated that the DOL had debarred a California-based immigration software company from filing PERM applications for the next three years due to willful misrepresentations and failure to comply with DOL regulations.

These two announcements follow about one month after the DOL’s unprecedented decision to begin blanket audits of PERM applications filed by one of the largest immigration law firms in the US.

These three recent actions are part of a tightening by the DOL on the PERM labor certification process in its effort to ensure the integrity of the PERM system. The PERM process is a required first step in all EB-2(except NIW) and EB-3 employment-based immigration petitions cases. During the PERM process, the petitioning employer must show that it has tested the market in a good faith and unbiased manner and that there are no willing and qualified U.S. workers to fill the offered position. The goal of PERM is to protect U.S. worker’s access employment by ensuring that qualified U.S. workers have been given fair consideration for the proposed job offer.

The current PERM system relies on good faith recruitment by the employer.  In general, the employer will run a set of required postings and conduct a timely review and interview of any applicants.  If upon completing recruitment, the employer has not found a suitable US worker to take the position, the employer can file an Internet-based application.  The initial online filing only collects information; the employer is not required to send in any supporting documents at the initial filing. The DOL made this revolutionary change in the Labor Certification system in March of 2005 with the hope of increasing the efficiency and reducing the backlog of the labor certification process. 

Because the PERM regulations do not require supporting documents, some have predicted this will lead to possible violations or compromised integrity caused by some employers or attorneys taking advantage of the online filing system.  Therefore, these regulations have set in place safeguards, such as random audits, targeted audits, and sanctions for violations, to ensure the overall integrity of the system. In addition, DOL requests that the employer, not the individual alien beneficiary, cover all PERM-related legal fees and costs if attorney is involved in advising the employer or filing the case.  This requirement was implemented with the belief that it would reduce the alien’s control of the process, though there have been some assertions of unconstitutionality challenging this issue. Using these tools, the DOL has been continually attempting to improve, enhance, and reduce abuses of the PERM system.

Despite this, some interest groups advocating protection of job opportunities for US workers feel that it is too easy for employers to exploit the PERM process in order to pass-over U.S. workers and hire non-US worker. As the current U.S. economy continues to shrink the U.S. job market, opponents of the PERM system argue that foreign labor is placing U.S. workers out of work. They worry that, while the goal of the PERM process is to promote the hiring of qualified U.S. workers, employers enter the process hoping to retain their current foreign workers which may lead to issues during the recruitment portion of the PERM process.
           
Our firm holds the professional standing that while advocating the best interest of our clients, the employer should fully comply with the good faith recruitment requirements.  The employer, under the guidance of the attorney, should document the whole process down to the last detail as if the case were to be audited by the DOL.  In situations when the DOL issues an audit, the employer only has 30 days to submit all recruitment documents; further, the employer cannot withdraw the case without a response.  If employer fails to respond or the response has material flaws, the employer may be sanctioned.  Our experience has shown that detailed documentation and full compliance with procedures are the best ways to serve the interests of our clients in long term.  In all instances where the DOL has randomly audited PERM cases filed by our firm, we have submitted supporting documents within the required 30 days without any difficulty as it is our firm’s policy to have the whole package pre-prepared and ready even before we file the PERM online.  As a result, we have experienced very successful outcomes for our randomly audited cases.

Of course, our attorneys always apply the best lawful strategies to reduce the chances of being audited, as any audits will seriously delay the entire process even when the case is eventually approved.  With the assistance of an experienced attorney, a well prepared and efficiently filed PERM will dramatically reduce the red flags that may trigger an audit. 

In the past, we have heard complaints by employers or individuals of the inconvenience of the PERM processing and of our attorneys’ insistence of the full compliance with the regulations.  However, it usually turns out that such inconveniences will, in the long run, serve to better our clients’ situations as they not only provide a solid basis for smooth filing but also offer   reassurance if the case is eventually audited. 
           
In summary, we believe that it is important for employers and alien beneficiaries to understand the requirements of PERM and adopt a conservative approach to their recruitment process as this is ultimately in the best interest of the employer and its foreign employees.

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Attorney Jian Joe Zhou is the Co-managing attorney at Zhang & Associates, PC, with more than 8 years of experience in labor certification (PERM and pre-PERM system), and have helped employers and aliens in hundreds of Labor Certification cases.  Joe received his SJD, LLM, and MLI degrees from the University of Wisconsin Law School, and his LLB from East China University of Politics & Law. He may be reached at jzhou@hooyou.com

PERM labor certification is an extremely complicated procedure. Our attorneys’ experience and expertise can facilitate the whole application process. We have successfully assisted many clients in PERM cases for a wide range of positions, including computer professionals, university teachers, accountants, business managers, engineers, architects, technicians, and scientists. If you are considering filing a PERM case, please send your questions and a resume or CV to Attorney Zhou at jzhou@hooyou.com .

Zhang & Associates, PC.

Houston ∙ New York ∙ Chicago ∙ Austin
Tel：1-800-230-7040, 713-771-8433
Email: info@hooyou.com
website：http://www.hooyou.com

(07/14/2008)

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