Labor Certification Audits: What to Expect
As an employer contemplating labor certification for a foreign worker, you are looking at a significant investment of time and money. Thus, you have a stake in being able to predict how the process will go. A certain amount of uncertainty is inherent in the process, however. In order to assure that no qualified U.S. worker is available for the position to be certified, the U.S. Department of Labor (DOL) requires you to conduct an actual recruitment, and you can never know in advance who is out there in the labor pool. (For a description of the labor certification process, see Overview of PERM Process (Obtaining Labor Certification).)
By selecting a percentage of labor certification applications for extra scrutiny—a labor certification “audit”—DOL introduces an additional element of uncertainty into the labor certification process. And when it comes to the auditing, DOL actually cultivates uncertainty as a positive element. Making the audit process predictable, it once said, would defeat the purpose of the audits and undermine the PERM program's integrity.
Why would DOL want to add uncertainty to an inherently unpredictable process, and what has this got to do with integrity?
Why the Labor Department Favors Unpredictability in Audits
DOL’s concern for integrity stems from the nature of the electronic PERM system for labor certification, initiated in 2005. Essentially, PERM is an honor system: Employers electronically file applications reporting on the recruitment that they’ve conducted under the labor certification rules, and DOL routinely accepts employers’ word concerning the recruitment conducted, not requiring any actual proof. Electronic filing without documentary evidence enables faster processing and conservation of DOL resources.
To keep things honest, then, DOL audits a certain percentage of applications, some chosen randomly and some targeted for a particular reason. Apparently, DOL believes that the unpredictability of the audits serves to prevent the gaming of the system. Thus, DOL has put employers on notice that it has the authority at any time to increase the number of random audits it conducts and to change the criteria it uses for targeted audits.
Nevertheless, all labor certification audits do contain a predictable core, and some patterns do emerge over time as employers and their representatives share information about actual audits they have experienced.
What Every Audit Calls For
If you undergo a labor certification audit, whether random or targeted, you can expect to be asked to produce certain core documents. First, DOL will want to see a hard copy of the electronically filed labor certification application (ETA-9089) signed by the employer, the attorney representing the employer (if any), and the prospective employee.
In addition, you will be called on to document the posting of the required worksite notice, as well as all the recruitment you conducted—the two Sunday ads, the state workforce agency job posting, and, for professional positions, the three additional “optional” methods. (See Employer Recruitment Requirements Under PERM.)
Finally, the standard PERM audit also requires the employer to submit a detailed report on the recruitment, accounting for all resumes received and explaining why each U.S. applicant failed to meet the minimum requirements for the position to be certified. If DOL is not satisfied with the recruitment report, it will subsequently call for and examine the resumes themselves.
Because any labor certification application can draw an audit, every labor certification recruitment should be conducted as if in expectation of an audit. This means promptly contacting any job applicant who looks strong on paper and keeping careful records of all contacts and attempted contacts as well as any actual interviews.
Note, too, that even if no audit ultimately comes your way, you will not have wasted your time in keeping records and compiling a report: Employers are required to retain a record of recruitment for five years after filing for labor certification.
What Will Actually Trigger An Audit
Again, DOL regards the very unpredictability of the labor certification audit as essential to its function, ensuring the integrity of the program. Still, employers’ experience of audits over time suggests certain persistent concerns.
Before certifying a particular job for immigration purposes, DOL wants to make sure that the job has been genuinely held out to U.S. workers who possess the minimum qualifications to perform it. Thus, any job requirement that seems “tailored” to the background of the sponsored foreign worker may draw an audit.
Foreign language capability, in particular, will almost certainly require justification in an audit, unless it’s clearly intrinsic to the job. Likewise, an audit can be triggered by any job qualification that exceeds what DOL considers to be the “normal” requirements for the occupation in question, or by a combination of requirements that usually belong to separate occupations.
In any of these situations, DOL tends to look for a “business necessity” argument in the course of the audit: The employer must provide enough specific information about its business, along with supporting evidence, to create a context in which the questioned requirement becomes clearly reasonable.
Sometimes, it’s not the job requirements but the sponsored worker’s qualifications that will attract an audit. If the sponsored worker’s educational background and work history, as set forth in the application, do not make clear that he or she actually possesses all the requirements laid out for the position, DOL will call for proof of those qualifications through an audit.
In addition, since the labor certification rules require the employer to offer the job under the minimum qualifications, any experience the sponsored worker has acquired on the job doesn’t count. Experience with the same employer but in a substantially different position, however, can count. Thus, if the sponsored worker currently works for the sponsoring employer, as is often the case, DOL might audit to make sure that any of the sponsored worker’s qualifying work experience with the present employer was acquired in a position that was substantially different from the one to be certified.
Then, too, because DOL intends to certify only jobs that have genuinely been held open to U.S. workers, a sponsored worker’s ownership interest in the sponsoring company will almost certainly draw an audit, as will a close family relationship between an owner and a sponsored worker.
In truth, almost any aspect of the job offered or the sponsored employee’s background might come in for further scrutiny through an audit. New triggers could emerge as common at any time. In 2013, DOL released an audit plan document showing audit "tiers" that specify the types of cases that will be targeted for review.
Withdrawing the Labor Certification: No Way Out
Finally, although a labor certification application can always be withdrawn, withdrawing will not spare the employer from responding to an audit. DOL has made it plain that once it has issued an audit notice, the employer must respond. What DOL has not made plain, however, is what consequences would flow from not responding.