The U.S. Department of Labor (DOL) has indicated that it will further expand its use of “integrity” measures in the permanent labor certification program. These measures include the conduct of audit investigations and DOL-supervised recruitments of PERM cases submitted to the DOL.
Increased Processing Times and Denials
The DOL has a goal of conducting integrity checks on 30 percent of PERM labor certification cases, resulting in an increased number of audits and supervised recruitment in these cases. PERM cases subject to an audit take longer to be processed and are subject to stricter review. Cases placed in audit processing are now waiting in the queue for 224 days, on average, and have a 40 percent denial rate, while the processing time of PERM applications subject to supervised recruitment is approximately 300 days, with a denial rate of 67 percent.
The DOL justifies the impact of program integrity activities on overall case processing times and the concomitant generation of case backlogs by arguing that these two measures enhance program integrity and contribute to jobs being available to U.S. workers in a time of high unemployment.
Integrity Measures: Audits and Supervised Recruitment
- The PERM Audit
Often, an audit is merely a request by the DOL to the employer to provide documentary evidence to prove all the information to which the employer attested in the PERM application and confirm compliance with all statutory and regulatory requirements. The DOL has the authority to audit any PERM case to verify the accuracy of the employer’s statements and attestations in the filing and otherwise assess the merits of the case.
There are two types of audits performed by the DOL. Some audits are randomly issued, while others are targeted for specific concerns. Targeted audits are issued for known triggers (such as a language requirement) and also specific issues arising from particular cases.
- Supervised Recruitment
Another mechanism employed by the DOL to protect the integrity of the PERM program is supervised recruitment. This process essentially involves the DOL directing the sponsoring employer to engage in additional efforts to recruit qualified U.S. workers. Applications are then directed to the DOL rather than directly to the employer. Supervised recruitment could be ordered for one particular case or for all or some of the employer’s pending PERM cases.
Employers should be prepared to respond to a notice that a case has been chosen for supervised recruitment. A pattern or practice of failure to comply with supervised recruitment can debar an employer, attorney, or agent from filing PERM applications for up to three years.
Integrity Review: Triggering Factors
While some of the DOL red flag issues are known or can be determined, these are not the only applications being selected for post-filing integrity review, including both supervised recruitment or audits. However, understanding the current triggers and red flags can assist an employer in successfully navigating the process. For example, based on recent meetings with the DOL, below are just a few of the current red flags causing closer scrutiny of a case:
- The educational requirement is less than a bachelor’s degree;
- A high-salaried professional position with a low threshold of educational or experience requirements;
- The educational requirement is a bachelor’s degree, but no prior work experience is required;
- High-tech/computer industry positions, construction-type positions, automotive-related industry positions, and financial/banking industry positions;
- Lower-skilled positions;
- No applicants applied for the position; and
- Positions that require travel (roaming employees).
Given the DOL’s goal to increase audits and supervised recruitment, employers should arm themselves by understanding what is involved in an integrity review, taking steps to conduct a good faith recruitment, and proactively discussing compliance with PERM program requirements with experienced legal counsel.