DC Immigration Attorney: DOL Audit Criteria for PERM/Green Card Process

In response to a recent FOIA request, the Department of Labor has released an internal memo which outlines the eight criteria used to determine which PERM cases will be flagged for audits, and subject to the possibility of supervised recruitment.

After a foreign worker has obtained a job offer from a U.S. employer, the first step on the path to obtaining a green card is the labor certification, or “PERM” process.   This process involves several steps, including ensuring the U.S. government that the position offered will pay the prevailing U.S. wage, and conducting a thorough recruitment process in which the employer must demonstrate that no U.S. citizens or residents are available to fill the position. In order to meet the PERM requirements, employers must place advertisements with the state workforce agency in the intended state of employment, and place ads for the position in newspapers and at the work site location. Once the recruitment process has been implemented and the employer can show that no suitable U.S. workers were found to fill the position, the petition can move forward.

This recruitment step is critical to the approval of the petition. However, it would be impossible for the DOL to personally supervise the process for each applicant to ensure that it was being conducted in good faith. Instead, they conduct semi-random audits to ensure compliance. The auditing process is similar in objective and practice to an IRS audit. In other words, even if you’ve complied with each and every regulation perfectly, the process will be a time-consuming headache.

That’s why the release of this DOL memo is particularly useful to employers and immigration attorneys – it can take some of the guesswork out of advising our clients when to expect an audit. The memo sets forth criteria that the DOL will use in determining when an audit is warranted. While this list gives no guarantees, it will serve as a guideline as to when an audit should be expected.

Among the types of cases listed in the memo are positioned in which the minimum education requirement is less than a Bachelor’s Degree, where the job requires a degree with no experience, where the position stipulates that a “Bachelors or Masters” will be acceptable, and positions with companies who have experienced recent layoffs. Also included in the list are applications which have been re-submitted after a denial within the same calendar year or those which have been re-submitted after withdrawing the application when an audit was initiated.