Why Would a PERM Application Be Audited?

If you are seeking an employment-based green card, one of the first steps will be having your sponsoring employer go through the process of obtaining a PERM labor certification. The PERM process is in place in order for the U.S. Department of Labor to help ensure that U.S. workers are not missing out on qualifying job opportunities by being replaced by foreign workers. The PERM process is complex and specific. The DOL is committed to maximizing the efficacy of the PERM process which means that, after an employer navigates the entire PERM process, the employer may still be subject to an audit.

Reasons for a PERM Application to be Audited

There are two central reasons a PERM application would be audited. The audit may be random or it may be targeted due to certain application red flags. Random audits of PERM applications are conducted by the DOL in order to inject a level of uncertainty into the process. The DOL finds this element of uncertainty works to avoid the PERM process from becoming predictable and easy to take advantage of. With random audits, the DOL people will avoid trying to game the system. The DOL lets employers know that it not only has the power to increase the number of random audits it conducts, but that it also has the authority to change criteria it uses for targeted audits.

There are several reasons an employer would be subjected to a targeted audit. Most relate to an employer failing to genuinely hold out the job opportunity to all U.S. workers who are qualified, willing, and able. A targeted audit may be triggered by something such as a job description that seems specifically tailored to the background of the foreign worker looking to obtain a green card. More specifically, an example of this would be inserting a foreign language requirement for the job opportunity when it is clear that this type of requirement is not essential to performing the job.

Alternatively, a job description including requirements that go beyond what would be considered normal for the occupation at issue may trigger a targeted audit. The employer must be prepared to support the requirements and the fact that they are actually necessary to the business. This will involve the employer providing specific information and evidence about the business itself. The employer must be able to prove that the extra job requirements are actually essential to support the mission of the business and it is reasonable to require a prospective employee to meet the additional qualifications.

A targeted audit may also be triggered should it be unclear as to whether the foreign worker seeking green card sponsorship is actually qualified for the job position at issue. Sometimes, the educational background and work experience of the sponsored worker will not look like it falls in line with the prospective employment opportunity. This can trigger an audit. The DOL is likely to need to see proof that the worker actually possesses the qualifications necessary for the prospective job.

In addition to the above, a targeted audit may be triggered by the foreign worker having a familial relationship with the owner. The foreign worker may also have something like an ownership interest in the company and that would possibly trigger an audit. A work history between the employer and foreign worker may also trigger an audit. Furthermore, if it appears that the sponsoring employer may have received any form of payment from the foreign worker for filing the PERM application, this is also likely to raise a red flag for DOL.

Immigration Law Attorneys

The PERM path to an employment-based green card is filled with hurdles that must be overcome. The team of trusted immigration attorneys at Nachman, Phulwani, Zimovcak Law Group, P.C. is here to help you through it all. Contact us today.