PERM or Department of Labor (DOL) Audits
PERM applications may be audited by the Department of Labor’s (DOL) Employment and Training Administration (ETA) in an effort to prevent fraud and assure compliance with the regulations. An audit can be triggered by a particular response or group of responses on the PERM application, though the ETA also issues random audits to a percentage of applications. Typically an employer will have 30 days from the date of the letter to respond to an audit letter from the ETA, but the amount of time will be clearly stated in the letter along with the required documentation the ETA is requesting. The ETA is very strict about their imposed deadlines and failure to respond in the given amount of time can have serious consequences which can affect not only the application in question, but any future PERM applications from that employer.
An audit is not only a costly prospect from the view point of the preparation of the response, but it can significantly delay the PERM process. For the past several years, a PERM audit could take more than 2 years to process thereby devastating the prospect to proceed to the subsequent stages in the green card process. The skilful immigration lawyer is one who can anticipate issues with the PERM case which could lead to an audit. Contact us if you wish to file for permanent residence based on PERM for yourself or for an employee of your organization. Our firm has processed thousands of permanent residence applications during the past two decades. Our success rate exceeds 98%. Our lawyers pride themselves on meticulousness and attention to detail. Contact us for a consultation.The Employer Must be Prepared for a Potential Audit
Since some of the audits are random, there is no way to predict when an employer might receive one, but there are ways to be prepared if an audit happens. The first way to prepare should be obvious: Be honest in the application process. This is not just to avoid audits, but knowingly and willingly furnishing false information (or counseling another to do so) is a federal offense, punishable by fine or imprisonment up to five years or both. Being candid during the application helps relieve the stress of an already stressful audit.
It is also extremely important to be thorough. The application itself is 10 pages long and requires numerous verifying documents that include market testing in addition to proof of education and qualifying experiences. Incomplete information can cause an application to be rejected outright. Even if it is not rejected, an audit triggered by a particular response or uncertainty about a response will not typically be satisfied by clarifying that specific answer. Instead the ETA requests certifying documents to prove all aspects of the PERM application. Providing additional documentation, even when it is available, can be very time consuming. Not having thorough documentation can not only lead to delays, but can cause the application to be rejected. This is why it is so important to have a PERM audit file before submitting the application to the ETA.Preparing and Maintaining the PERM Audit File
An employer is required to create a PERM audit file and to keep it for five years starting from the filing date. This audit file will show documentation of the company's recruiting process, copies of job notices and postings, and other evidence used to submit the PERM application. This information will be needed if the application is approved, it will be needed if there is an audit, and it will be needed if, at any time during the required five year maintenance, the ETA requests that information. Since there are so many chances to need that information, it is imperative to have the information ready from the beginning.
Of course, having the information ready from the beginning is a helpful time saver, but the greatest benefit might be the credibility that comes from having all the documentation at the time of the PERM application filing. An audit will require evidence that an employer has satisfied the many steps in completing the application, but the ETA wants to be assured that these steps were satisfied in the proper order. Creating a document that shows a business necessity after the fact might still be accepted by the auditor, but it will understandably be viewed less favorably and with more suspicion than if it had been completed at the time of filing. Having the evidence ready makes it much easier to see that the proper steps were taken at the proper time, and the employer may be required to have this evidence on hand anyway.Requesting an Extension of Time to Respond to an Audit
Again, the ETA is very strict about deadlines, and even though an employer may request a one-time 30 day extension, this can be accepted or denied at the ETA’s discretion. Since the initial 30 day time period begins on the date the audit letter was written, the actual amount of time an employer has to prepare the documentation will be less than 30 days depending on when the employer receives the letter. This further strengthens the rationale for preparing the information ahead of time. If an extension is being requested, it should be requested immediately so that if it is denied, it is not too late to respond by the initial deadline.
If the employer has not prepared an audit file and cannot locate required primary evidence, the ETA may allow secondary evidence as a substitute. Since this is completely at the discretion of the ETA, there is never a guarantee that the secondary evidence will suffice. If there is too much secondary evidence, the ETA might find the employer to be non-responsive, in spite of the employer’s delayed best efforts to respond. Being honest, thorough, and having a PERM audit file at the time the application is filed, can help an employer be prepared for the unpredictable possibility of an ETA audit and be able to get passed it as quickly as possible..How to Contact Us
If you have questions about a PERM audit, a DOL audit, an immigration visa or green card matter, and/or you need help in an immigration process, please contact our immigration attorneys or call The Law Firm of Shihab & Associates, Co., LPA at the nearest office close to you to consult with an attorney. Our law firm handles various matters including Green Cards and Permanent Residence, family immigration, immigrant visas, non-immigrant visas, employment visas and H1B visas, Investor Visas, PERM applications, and many more. Please contact us and experience how our law firm can assist you in your immigration matters. Whether you are an employer, an employee or a family member, The Law Firm of Shihab & Associates, Co., LPA has competent, responsive and innovative lawyers who can make your immigration experience pleasant and seamless.