Section 212(a)(5)(A) of the Immigration and Nationality Act requires the Secretary to certify the admissibility of a foreign national for employment only when the Secretary can certify that the employment of that foreign worker will not adversely impact the wages and working conditions of US workers similarly employed, and that there is a job opportunity for which a US worker is unavailable. As the regulated community knows, the Department of Labor’s Office of Foreign Labor Certification (OFLC) is responsible for maintaining the integrity and compliance of the primarily attestation-based PERM Program through the use of certain measures, including audit and supervised recruitment, under a broad integrity review authority. At the time of PERM’s implementation, the Department stated that OFLC would select certain applications for audit, employing “auditing techniques that can be adjusted as necessary to maintain program integrity”, as well as for quality control. 69 Fed. Reg. 77326, 77328 (Dec. 27, 2004). The Department noted at the time the need for changing audit criteria to focus integrity efforts on program abuse and adjust the audit mechanism as necessary as we gained program experience. 69 Fed. Reg. 77359. Finally, the Department reserved the process of supervised recruitment for a broad application “in any case in which the C[ertifying] O[fficer] deems it appropriate” as a reasonable quality control mechanism. 69 Fed. Reg. 77360, 77362.
In response to a recent Freedom of Information Act (FOIA) request, we are releasing and making available to all of the regulated community the following documentation regarding the areas in the PERM Program that have in the past warranted this closer examination. Click here to view the OFLC Audit Plan. These areas were deliberately chosen to ensure we are carrying out our statutory responsibilities while also recognizing the evolving nature of program integrity and quality control.
We hope the publication of this information assists filers, especially first-time filers, comply with the PERM Program’s various requirements.
TIER ONE: PERMs will be audited if the primary requirement in Section H, Field 4 of the ETA Form 9089 is less than a Bachelor’s degree, e.g. “none”, “Associates” or “High School” AND the position is not classified under SOC Code 45-2093.00 – Farmworkers, Farm, Ranch, and Aquacultural Animals in Section F on the ETA Form 9089.
TIER TWO: PERMs will be audited where the SOC Code in Section F, Field 2 on the ETA Form 9089 matches one or more of the trade related occupations contained in an attachment.
TIER FOUR: PERMs will be audited where the employer is a public school listed on an attachment entitled PUBLIC SCHOOLS TO AUDIT.
TIER FIVE: The DOL will audit 50% of PERMs where the offered position requires a degree but does not require any experience. This will be determined by the information presented in Section H, Field 4 and Section H, Field 6 of the ETA Form 9089.
TIER TWELVE: The DOL will audit 50% of cases where the employer has indicated on the ETA Form 9089 that they have had a layoff. Specifically, if the employer has answered “YES” in Section I, Field 26 which asks “Has the employer had a layoff in the area of intended employment in the occupation involved in this application or in a related occupation within the six months immediately preceding the filing of this application?”
TIER SEVEN: A PERM may be tagged for audit and supervised recruitment if it was submitted after a denial within the same calendar year. Specifically, if the employer’s name in Section C, Field 1 is equal to one or more of the employer names listed in the DOL’s “Denied _Cases table” AND the alien’s name in Section J, Field 1 is equal to one or more of the foreign worker names listed in the “Denied _ Cases table.”
TIER EIGHT: A PERM may be tagged for audit and supervised recruitment if it was re-submitted after it was withdrawn after audit. Specifically, if the Employer’s name in Section C, Field 1 is equal to one or more of the employer names listed in the DOL’s “Withdrawn_Cases table” AND the alien’s name in Section J, Field 1 is equal to one or more of the foreign worker names listed in the “Withdrawn_ Cases table” AND the “Audit Notification Date” in the “Withdrawn_ Cases table” is not null.
TIER ELEVEN: A PERM may be tagged for audit and supervised recruitment if it was not filed electronically and had to be manually entered by staff at the Atlanta National Processing Center.
TIER THREE: H-1B Dependent Employers.
TIER SIX: Requiring a degree and indicating that the alien’s Class of Admission as H-2A, H-2B or EWI (Entered Without Inspection).
TIER NINE: Employers who recently issued layoffs.
TIER TEN: Employer with a history of roving.