PERM Audits: Triggers, Audit Process, and Processing Time

What is PERM?

PERM (Program Electronic Review Management) is a program that certifies there are no suitable US Workers for the position to be employed for some employment-based immigrant visas.

What is a PERM Audit?

“Audit” means that the Department of Labor requests more detailed information and documentation regarding your PERM application. Audits may be due to specific details in your file, or they may be completely random. On average, 30% of applications encounter random audits.

What are the Different Types of PERM Audits?

• Random Audits: Random audits are conducted to ensure fairness in PERM applications.
• Targeted Audits: Targeted audits are sent to clarify certain details about applications that seem unclear.

PERM Audit Reasons and Triggers: What Can Trigger a PERM Audit?

• A familial relationship between the foreign worker and the owners, stockholders, partners, corporate officers, and/or incorporators.
• The employer being a closely held corporation, partnership, or sole proprietorship in which the foreign worker has an ownership interest.
• The employer relying solely on the experience the foreign worker gained while working for the employer.
• The requirement of proficiency in a foreign language for the position.
• The requirement of certifications that aren’t typically required for a job.
• Payment received by the employer from the foreign national beneficiary for the PERM application.
• Layoffs within the past six months for the position or in a related occupation.
• The primary requirement for the foreign worker’s offered job being less than a bachelor’s degree.
• The offered position being related to trade.
• Very specific job requirements or no requirements at all.

How Can You Reduce the Risk of a PERM Audit?

• Avoid the audit triggers listed above as much as possible.
• Do not tailor the requirements of the position to suit only the foreign worker.
• Try to decide the job description broadly. Define the duties and requirements based on what is typically common to that job.
• If any application is received through the advertisements; compile a report that includes the candidates, their eligibility status, details of the interviews held, and results.
• Make sure that the recruitment process is carried out following the Department of Labor’s guide.

How Should You Respond To a PERM Audit?

First of all, examine the audit notice carefully to understand the issues expected to be disclosed and the requested documents.

Compile and submit all requested documents appropriately and in a timely manner.

When responding to a PERM audit, the supportive documents should include:

• The audit request
• The dated and signed ETA form 9089
• The completed Notice of Filing, and the evidence of the posting and removal dates.
• The prevailing wage determination
• Documents of all advertisements placed
• Receipts of purchase of the ads
• All resumes received during the recruitment process
• Signed declarations

How Can You Prepare for a PERM Audit?

The most important way to prepare for a PERM Audit is to maintain all relevant documents from the beginning of the process in a systematic and organized manner.

It would be beneficial to conduct the entire process with an immigration lawyer.

PERM Audit Processing Time: How Long Does a PERM Audit Take?

According to data shared by the Department of Labor, the processing time for a PERM application is 12-13 months on average as of today. If the PERM application is audited, the processing time for the audit review takes about 3-6 months. Exact processing times for each employer’s PERM application may differ from the average depending on material facts and individual situations of the case. 

How Can You Check the Status of Your PERM Audit?

• Step 1 – Find Your Priority Date.

Your priority date is the date that your PERM application is submitted to the DOL.

• Step 2 – Go to https://flag.dol.gov/processingtimes

• Step 3 – Scroll down and look for PERM Processing Times

• Step 4 – Find Analyst Review (or Audit Review if your case has been audited)

These dates reflect the month and year in which cases were filed and are currently being adjudicated. 

What Happens After a PERM Audit?

After a PERM Audit, the processing time for your application could be significantly extended. This extra review might lead to your application being denied if the Department of Labor finds any problems. If the audit uncovers the issues, you might have to go through supervised recruitment for future certification processes. This means that the Department of Labor will closely monitor and control any future applications from you, making the process stricter and longer. It’s important to be well-prepared and follow all the rules to avoid negative outcomes from a PERM audit.

What Happens If PERM is Denied After an Audit?

If the certifying officer denies the PERM application after reviewing the employer audit file, the employer will receive a determination by email, including the grounds for the denial.

The employer then has 30 days to ask for reconsideration by the certifying officer or a review of the denial with the Board of Alien Labor Certification Appeals (BALCA). The employer also has the opportunity to file a new application, however, a new application cannot be submitted for the same job while a request for review is pending with BALCA.

Work with Oguz Law’s Immigration Attorneys

PERM processes and audits are subject to very strict regulatory rules. Mistakes may cause you to lose a long time or cause your application to be denied. That’s why we have a specialized team to guide you through the process and make sure your application has the best chance of success.

Frequently Asked Questions About PERM Audits

What Happens When PERM is Approved?

You can proceed to the next step and submit form I-140.

Why Does a PERM Get Audited?

Your application may be audited completely randomly or due to certain audit-triggering reasons.

How Do I Know If My PERM is Audited?

If the application is flagged for an audit, the employer will receive a notice from the DOL setting the documents and information they require for review.

Can I Stay in the U.S. While Waiting For My PERM Approval?

The PERM application is about the labor shortage in the United States. It is not a visa or immigration application. Therefore, if the foreign worker specified in the PERM is waiting for the process in the US, he or she must have another status and maintain it until the final stage.