DOL Audit Letters
Posted Jun 10, 2005
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Some members of the American Immigration Lawyers Association (AILA) have reported receiving audit letters from the U.S. Department of Labor (DOL) for their pending PERM labor certification cases. This information has been shared for the benefit of others. Since PERM itself is a new process, these audit letters are among the earliest issued by the DOL under PERM.
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One of the concerns under PERM has been the fact the DOL can conduct audits to verify the authenticity of the PERM process and the documentation maintained by the employer in filing a PERM case. The PERM regulations specify that, when a PERM application is filed, the DOL initially may issue an audit letter, require supervised recruitment, deny the case, or approve the case. By properly maintaining the necessary documentation and submitting it when required, the employer and employee will minimize the risk of a PERM denial and the employer will be able to avoid DOL imposed sanctions or penalties.
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Business Necessity Justification
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Each of the audit letters reported requested the employer's reasons for requiring certain qualifications of the employee filling the offered position. When the employer shows that the education and/or experience necessary for a particular job exceed the DOL standards, the employer is required to justify the requirements by submitting evidence and satisfying the DOL that the particular prerequisites are a business necessity. The DOL's concern is that the employer's excessive posting for qualifications is solely to exclude U.S. workers. The DOL, therefore, wants to audit the case to ensure that the employer's need for the additional requirements indeed is justifiable as a business necessity.
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All but one of the reported DOL audit letters have been for positions that require fluency in a foreign language. Foreign language requirements historically have been carefully scrutinized in labor certification cases. All of the attorneys who have received the audit letters reported that they anticipated the likelihood of receiving an audit letter.
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Evidence of the Employer's Existence
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Some of the DOL audit letters also asked for proof of the employer's existence. The DOL is dedicated to eliminating the ability of an individual to commit fraud by fabricating an employer / sponsor or filing in the name of a genuine business, but without the knowledge or consent of that business. Several people have been indicted and / or imprisoned for such unethical and illegal behavior. Unfortunately, this wrongdoing has created the need for additional efforts and safeguards both by DOL and by legitimate employers seeking to file under PERM.
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Documents Required to Respond to Audit
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The audit letters that have been issued to date include requests for a signed PERM labor certification form (ETA Form 9089), a signed recruitment report, evidence of how the recruitment steps were conducted, and a copy of the prevailing wage determination obtained from the State Workforce Agency (SWA). These documents should be readily available in the employer's audit file if the employer and the attorney properly documented the PERM file as required by law.
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Deadline to Submit Response to Audit
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The audit letters have a 30-day deadline for response. This is consistent with the regulations. To date, the letters have been received in a timely manner by the attorneys, thus allowing most of the 30-day period to respond to the audit.
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Conclusion
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The PERM regulations require the employer to maintain an audit file for 5 years from the date that the PERM application is filed with the DOL. The materials currently requested are the standard documents that should be included in every audit file. An employer is well advised to seek assistance from a qualified immigration attorney regarding case-specific audit files.