The PERM process is first step in the employment-based green card process for many foreign nationals. In this process the sponsoring employer conducts an advertisement campaign as a test of the local labor market to determine if minimally-qualified U.S. workers are available to fill the position. The sponsoring employer can only file the PERM application with the U.S. Department of Labor (DOL) if the advertisement campaign does not uncover any minimally-qualified U.S. worker candidates who are willing to accept the sponsored position. This is a highly regulated process, with the DOL exercising influence over the amount of education and work experience an employer can require for a position, the wage that must be offered, the particulars of the advertisement campaign, and the reasons why a U.S. worker candidate can be disqualified for the position.

The PERM application is filed electronically with the DOL on form ETA-9089. Similar to the electronic filing of a federal tax return, no supporting document are initially submitted with the ETA-9089. Instead, the necessary supporting documents are required to be retained by the employer, and must be provided to the DOL in the event of an audit, which occurs in approximately 30% of cases nationwide.

When a PERM application is audited the DOL will ask for a standard set of documents, including copies of the advertisements run as part of the advertising campaign, resumes from all applicants for the position and the lawful, job-related reasons for disqualification, and signed declarations from both the employer and employee stating that the employee did not make any payments to anyone in connection to the PERM process.

The DOL has now begun requesting additional evidence as part of its standard audit language. Specifically, the DOL now expressly asks for:

  1. A “business necessity” justification for any requirements that exceed the minimum baselines identified by the O*Net; and
  2. Documentation explaining why any rejected U.S. applicant could not have obtained the skills necessary to perform the position during a reasonable period of on-the-job training with the sponsoring employer.

These requests had previously only been made on case-by-case instances and were not part of the standard audit language.

Employers only have 30 days to respond to a DOL audit, and it can take significant time for an employer to prepare the documents necessary to respond to these two points. Therefore, employers must ensure that, prior to filing the ETA-9089 with the DOL, the audit files are complete and any potential issues associated with business necessity justification for the requirements of the sponsored position and the reasons for rejection of candidates have been identified and fully addressed.