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PERM Labor Certification Complicated Audit issues: Whether or not qualified workers applied for the position?

PERM Audits have become more routine in recent years, our blog readers were sending questions about various aspects of that process. An audit, is the process by which certain PERM applicants are required to submit proof of their recruitment activities. A Certifying Officer can request an audit of any permanent labor certification application if he or she finds the application concerning in its content, recruitment activities, or the authenticity of the job opportunity. The Officer can also randomly select PERM applications for auditing.

AILA recently provided some tips regarding major Audit issues, one of the issue how do we respond to the issue of Qualified US Workers applying for the PERM job.

The Typical Audit question is as follows:

The U.S. Department of Labor is unable to determine if potentially qualified U.S. workers who applied for the job opportunity were rejected for lawful, job-related reasons. The Code of Federal Regulations (CFR) at 20 CFR §656.24(b)(2)(i) requires the Office of Foreign Labor Certification Certifying Officer to make a determination to grant or deny the labor certification based on whether there are able, willing, qualified and available U.S. workers to perform the job opportunity.

PERM Tips:
• DOL has acknowledged during several stakeholder meetings that employers are not required to inform a U.S. worker of why she or he was not qualified. Providing such notice to U.S. workers is not required by the regulations. BALCA has also confirmed that employers are not required to contact a U.S. worker who is facially unqualified. See Matter of Kennametal, 2010-PER-01512 (BALCA March 27, 2012), citing Matter of Dearborn Public Schools, 1991-INA-222 (BALCA Dec. 7, 1993) (en banc) and Matter of Gorchev & Gorchev Graphic Design, 1989-INA-118 (BALCA Nov. 29, 1990) (en banc).

DOL has indicated that it would revise the audit language to clarify that contacting all applicants is not required, but there is no estimate as to when this will be done.

• Before filing the ETA 9089, ensure that the employer has prepared a recruitment report that includes details on when and how applicants were contacted and the reason(s) U.S. workers were rejected. The recruitment report may be a spreadsheet or report, but should provide specific reasons why each U.S. applicant was found not to be qualified, willing, and/or able.

Before filing the ETA 9089, ensure that the employer understands the need to maintain all resumes and documentation of contact with applicants. Employers may wish to designate a person to maintain resumes and other documents concerning the evaluation and interview process. If the employer contacted applicants by telephone, e-mail, or mail, retain a telephone log and copies of these communications and any applicant responses in the compliance file.

• Before filing the ETA 9089, if U.S. workers were rejected for lacking the skills required to perform the job, the employer should prepare a detailed statement explaining why the worker is unable to perform the job duties and why the worker cannot acquire the necessary skills during a reasonable period of on-the-job training.

The employer should describe any training the company offers and explain why that training is insufficient to enable to the U.S. worker to acquire the necessary skills. Attach relevant documentation to support the statement.

• In the audit response, attach the recruitment report, any supporting documents, the U.S. worker resumes, and information about the rejected applicants. The recruitment report must specify the lawful job-related reasons each worker was found not to be qualified, willing and/or able for the job opportunity.

It may be helpful for the report to also explain the employer’s evaluation and review protocol.

Careful documentation of the recruitment report is key to the success of the PERM case and being able to overcome any Audit.