PERM Audits

The Employer Must Be Prepared for a Potential Audit

Since some audits are random, there is no way to predict when an employer might receive one, but there are ways to be prepared if an audit happens. The first way to prepare should be obvious: Be honest in the application process. This is not just to avoid audits, but knowingly and willingly furnishing false information (or counseling another to do so) is a federal offense, punishable by fine or imprisonment up to five years or both. Being candid during the application helps relieve the stress of an already stressful audit.

It is also extremely important to be thorough. The application itself is 10 pages long and requires numerous verifying documents that include market testing in addition to proof of education and qualifying experiences. Incomplete information can cause an application to be rejected outright. Even if it is not rejected, an audit triggered by a particular response or uncertainty about a response will not typically be satisfied by clarifying that specific answer. Instead, the ETA requests certifying documents to prove all aspects of the PERM application. Providing additional documentation, even when it is available, can be very time-consuming. Not having thorough documentation can not only lead to delays but can cause the application to be rejected. This is why it is so important to have a PERM audit file before submitting the application to the ETA.

Preparing & Maintaining the PERM Audit File

An employer is required to create a PERM audit file and to keep it for five years starting from the filing date. This audit file will show documentation of the company's recruiting process, copies of job notices and postings, and other evidence used to submit the PERM application.

This information will be needed if:

• The application is approved
• There is an audit
• The ETA requests that information at any time during the required five-year maintenance

Since there are so many chances to need that information, it is imperative to have the information ready from the beginning.

Of course, having the information ready from the beginning is a helpful time-saver, but the greatest benefit might be the credibility that comes from having all the documentation at the time of the PERM application filing. An audit will require evidence that an employer has satisfied the many steps in completing the application, but the ETA wants to be assured that these steps were satisfied in the proper order. Creating a document that shows a business necessity after the fact might still be accepted by the auditor, but it will understandably be viewed less favorably and with more suspicion than if it had been completed at the time of filing. Having the evidence ready makes it much easier to see that the proper steps were taken at the proper time, and the employer may be required to have this evidence on hand anyway.

Requesting an Extension of Time to Respond to an Audit

Again, the ETA is very strict about deadlines, and even though an employer may request a one-time 30-day extension, this can be accepted or denied at the ETA’s discretion. Since the initial 30-day time period begins on the date the audit letter was written, the actual amount of time an employer has to prepare the documentation will be less than 30 days depending on when the employer receives the letter. This further strengthens the rationale for preparing the information ahead of time. If an extension is being requested, it should be requested immediately so that if it is denied, it is not too late to respond by the initial deadline.

If the employer has not prepared an audit file and cannot locate required primary evidence, the ETA may allow secondary evidence as a substitute. Since this is completely at the discretion of the ETA, there is never a guarantee that the secondary evidence will suffice. If there is too much secondary evidence, the ETA might find the employer to be non-responsive in spite of the employer’s delayed best efforts to respond. Being honest, being thorough, and having a PERM audit file at the time the application is filed can help an employer be prepared for the unpredictable possibility of an ETA audit and be able to get past it as quickly as possible.

Get Started

If you have questions about a PERM audit, a DOL audit, an immigration visa or green card matter, and/or you need help in an immigration process, count on the Columbus immigration attorneys at The Law Firm of Shihab & Associates. Our law firm competent, responsive, and innovative lawyers who can make your immigration experience pleasant and seamless.

Get in touch with us by calling (888) 915-5057.