How to Respond to a PERM Audit
The Certifying Officer (CO) at the PERM Processing Center can request an audit of any permanent labor certification application, either based on flagged answers or a random selection.
The following common issues in flagged answer audits:
- Alien has an ownership interest in the employer or a family relationship with the employer (C9)
- Employer has less than 10 employees (C5)
- The job requirements have a foreign language requirement (H13)
- Job requirements for the occupation are beyond what is considered “normal” for the same or related occupations (H12)
- Alien gained his experience with the petitioning employer or received payment for education from the employer (J21 and J22)
- There are strikes, lockouts and/or layoffs in the same or related occupation (I-24 through I-26)
- The alien has experience in an alternate occupation (H10)
- The job opportunity includes a combination of occupations (H15)
- Employer received payment of any kind for the PERM application from alien (I-23)
If a PERM application is selected for audit, the employer will receive an audit letter that specifically states the additional documentation to be submitted, and establishes a date (30 days from the date of the audit letter) for submission of the required documentation, and advises that the application will be denied if the required information is not received by the deadline.
The employer is required to submit all requested documents to the CO by mail or commercial delivery service (FedEx (UPS) prior to the deadline.
If the employer does not respond to the audit request prior to the deadline, the petition will be denied.
As a consequence of not responding, the employer may be required to conduct “supervised recruitment” for any future labor certification filings for up to two years.
The CO may grant the employer one extension of up to 30 days after the initial 30 day period in which to respond to the audit letter.
After receipt of the response from the employer, if the CO determines that the documentation is complete and consistent with responses on the ETA 9089, then the PERM petition will be certified (approved).
If the documentation is deemed deficient by the CO, the PERM petition will be denied.
The CO may also request additional documentation or order that the employer conduct supervised recruitment.
The DOL regulations state that an application cannot be withdrawn once it has been selected for audit.
A normal audit response will include:
- The Audit request.
- The signed and dated ETA 9089 (post filing version with the case # on the bottom).
- The Prevailing Wage Determination.
- The completed and signed Notice of Filing.
- The completed and signed Recruitment Report.
- Copies of all resumes from applicants referenced in the recruitment report.
- Clear copies of each advertisement referenced in the ETA 9089.
We normally recommend that the employer use a commercial service such as FedEx or UPS so that you have proof of receipt by the DOL.
From PERM FAQ’s 10:
Can the employer submit alternative evidence in the absence of primary evidence in response to an audit request?
Under the procedures outlined in 20 CFR 656.20, in response to an audit, employers must present the required documentation.
The documentary evidence the regulations require the employer to maintain in its compliance file is what is sought in an audit request.
For example, the use of an employer’s web site is to be documented by dated copies of pages from that site advertising the occupation involved in the application.
However, if the employer does not have the primary evidence suggested by the regulation, it may attempt to satisfy the request through the use of alternative evidence not specifically listed in 656.17.
In the case of the employer’s web site, in the absence of a copy of the posting, the employer may provide an affidavit from the official within the employer’s organization responsible for the posting of such occupations on the web site attesting, under penalty of perjury, to the posting of the job.
Whether such evidence will be accepted depends upon the nature of the submission and the presence of other primary documentation.
The more primary evidence is not provided, the more likely the audit response will be found to be non-responsive.