Update on PERM Approvals, Denials and Audit Letters
Posted by Jeff Xie on May 25, 2005 at 13:33:57
The May 24, 2005, AILA teleconference, "Open Forum-Discussion of PERM and Related Issues" included a discussion of the bases of denials and audit letters that have been received by AILA members to date, how DOL is dealing with the denials, and information on the issuance of approvals. For those who missed the teleconference, the highlights are summarized below: Approved Labor Certifications The Labor Department has advised AILA liaison that the first PERM approvals were sent from Chicago on May 23 and from Atlanta on May 24. Therefore, they should start arriving shortly. Denial Letters-What DOL Is Doing About Them While a number of members received status messages indicating that a case was "denied," but no letters as of yet explaining the denials, some had started to receive letters explaining the denials. Some of these denials seemed to be plainly in error, and AILA's liaison contacted DOL to get them addressed. DOL recognized that, in some of these cases, the denials were indeed in error, and were the result of the decision logic of their automated system. DOL therefore halted sending denial letters until it could get its system re-programmed. That system now has been re-programmed. All cases previously denied are now being run through the system again. Those that the system recognized as having been denied in error will be moved into the process for analyst review while those that the system still finds deniable will be sent new denial letters with a new 30-day period for appeal. Denial Letters-What Is Being Denied Denial letters that have been brought to the AILA liaison's attention fall into five categories, three of which DOL agrees were in error and hopes have been fixed by the change in the decision logic discussed above. The other two types of decisions are intentional in the system, and so should be addressed in the way that the application is drafted. Denials that were in error include: "The alien's qualifications listed on the application do not meet [the minimum requirements stated on the application]." In each of the cases brought to AILA's, and therefore DOL's, attention, the answer to question H.6 (Is experience in the job offered required for the job?) had been yes, as had been the answer to question H.10 (Is experience in an alternate occupation acceptable?). On those applications, question J.18 (Does the alien have the experience in the job offered required in H.6) was answered no, but question J.20 (Does the alien have the experience in the alternate occupation specified in H.10) was answered yes. DOL acknowledged that this combination of answers should be acceptable, but the system was kicking them out as denied.
For professional positions, "more than one additional recruitment step was conducted less than 30 days from the date the application was filed." On these applications, clearly only one step was conducted during that 30-day window. Apparently, the decision logic was kicking out all recruitment conducted within the past 30 days. This problem, too, should now be corrected.
For household domestic positions, failure to post the notice. This denial was issued notwithstanding 20 CFR section 610(d)(2), which says no posting is necessary for a worker in a household where there are no other U.S. workers.
Denials that DOL found not to be in error include:
Use of a P.O. Box as the employer's address. DOL insists on a physical address for the employer, presumably so it can check whether the employer actually exists. Fraud prevention is a major theme in the PERM program.
Inclusion of recruiting that took place outside the 180 day/30 day window (apart from the one step allowed within 30 days for professional positions). Even if recruiting was started before the 180 days and/or ended after the 30 days, it is advised that you draft your application to ONLY include the recruitment within the allowed window. Of course, that recruitment must meet all frequency and duration requirements of the regulation within that time window. Any additional recruitment before or after the window can and should be kept in the audit file to help show good faith in the case of an audit, but should not appear on the application.
Audit Letters
A handful of AILA members have reported receiving audit letters. These letters all include an attachment labeled "Audit Reasons", and each one that has been seen so far states the need for business necessity documentation. In all that have been seen so far, the attorney was fully expecting to need to justify business necessity (all but one had a foreign language requirement). In some, the attachment also requests documentation to prove that the employer exists. All of the audit letters themselves are boilerplate and include requests for a signed copy of the ETA 9089, the signed recruitment report, evidence of the conduct of the recruitment steps, and a copy of the prevailing wage determination. The deadline is that the response be postmarked thirty days from the date of the letter (which all appear to have been mailed on a timely basis). Cite as "Posted on AILA InfoNet at Doc. No. 05052560 (May 25, 2005) ."
[ Go Back ]
| 
