The DOL has stepped up its efforts in scrutinizing PERM filings and is auditing more cases pursuant to a goal of achieving “program integrity”. The DOL has specifically set a target to audit/or place in supervised recruitment 30% of PERM filings.
The American Immigration Lawyers Association (AILA) DOL liaison committee recently provided information on the most common trends in current PERM audits. (AILA Doc. No. 13012344) Employers need to be mindful of the additional scrutiny placed on PERM filings and these current red flag issues that may require more thorough documentation for a PERM filing.
* Issue: Whether or not qualified workers applied for the position. (20 CFR §656.17(g)(2))
* Issue: Whether or not a nexus between the employee referral program (ERP) and job opportunity for which the permanent labor certification is sought is established. (20 CFR §656.17(e)(1)(ii)(G))
* Issue: Whether to include a copy of the job order in response to the audit. (20 CFR §656.17(e)(1)(i)(A))
* Issue: Whether or not laid off workers have been adequately considered and notified of the job opportunity. (20 CFR §656.17(k))
* Issue: Whether or not the foreign worker gained qualifying experience in a substantially comparable position. (20 CFR §656.17(i)(5)(ii))
* Issue: Whether the alien or a third party paid for any part of the PERM process (20 CFR §656.12(b))
* Issue: Whether or not the recruitment indicates the geographic area of employment with enough specificity to apprise applicants of any travel requirements and where applicants will likely have to reside to perform the job opportunity. (20 CFR §656.17(f))
* Issue: Whether or not travel or telecommuting requirements are adequately described on the Form ETA 9089. (20 CFR §656.17(f))
I have avoided using employee referral programs for awhile now because they have become such a red flag for PERM cases. I think there are other ad campaign options that carry less of a risk for audit or denial.
I have also noticed the heightened review roving employees and telecommuting scenarios. Specific language identifying travel requirements and outlining any geographic restrictions for the position offered needs to be included in the ad and ETA 9089.
Andrew M. Wilson, Esq.