What Triggers a PERM Audit?

When an employer submits a Labor Certification (ETA 9089) to the U.S. Department of Labor (DOL), the DOL can deny, certify or audit the Labor Certification. Audits are a normal part of the PERM process, however, they can greatly prolong the process so employers should take steps to reduce the risk of an audit where possible. Hiring an experienced immigration attorney can help employers navigate the complex process and reduce the likelihood of triggering an audit, however, some audits are random so there is no way to completely eliminate the risk of a PERM audit.

The PERM is an attestation-based system, meaning the Labor Certification (ETA 9089) contains attestations from the employer and is not submitted with supporting evidence. The PERM audit process allows the U.S. Department of Labor to periodically check to make sure that employers have actually completed all necessary steps required by the PERM process. If a PERM is audited, the employer will have 30 days to produce supporting documentation that is requested by the DOL or the case will be denied.

Below is a list of common audit triggers:

• Having job requirements that exceed what the DOL considers normal
• Having a foreign language requirement
• Having a job that involves a combination of occupations
• Having primary and alternate requirements where the employee only qualifies by meeting the alternate requirements
• If the company has had a layoff in the relevant occupation within the last 6 months
• If the employee gained any of the required experience with the sponsoring employer
• If the employee has a family relationship with an owner of the company
• If the employee has some sort of ownership stake in the company

Once the PERM is audited, the employer will have 30 days to respond. They can also request one 30-day extension if needed. Normally the employer’s attorney will have prepared an audit file as part of the PERM process. The employer and attorney should review the audit file to ensure it fully responds to the DOL’s document requests and submit the documentation to the DOL within the time frame. Audits can be targeted, meaning they are addressing a specific concern, as outlined above, or they may be random. Often the document requests from, the DOL are very expansive, so it can be difficult to tell whether it was a targeted or random audit.