H1B Visa Lawyer Blog
It is the employer’s responsibility to maintain an audit file for every PERM application they file on behalf of their employees. As a practical matter, it is important to keep accurate and up-to-date records of all employee supporting documentation, especially when dealing with the PERM process. It is important that all steps in the process are followed precisely. Otherwise, consequences may occur that could ultimately result in supervised recruitment for two years, employer disbarment from the PERM system for two years, or even the closing of the employer’s business. Therefore, by maintaining an audit file for every PERM applicant, the employer is prepared to respond to an audit notice in a timely and efficient manner, and has the evidence to establish that they followed the required procedures correctly.
The key elements of an employer’s audit file should include the following:
1. A copy of the certified labor certification application (ETA FORM 9089)
An employer is required to maintain a copy of the certified application
2. Proof of permanent, full-time employment
An employer must be prepared to document the permanent and full-time nature of the position by furnishing job descriptions and payroll records for the job opportunity involved in the 9089 application– If the job does not exist, the employer must be prepared to show that a change in its business caused the job to be created
3. Notice to the bargaining representative (if applicable)
A copy of the letter and a copy of the 9089 Application form that was sent to the bargaining representative will suffice
4. Documentation of job posting notice
A copy of the posted notice and statement regarding where it was posted, and copies of all the in-house media that were used to distribute notice will be sufficient
5. Proof of job order placement
A copy of the State job order print document will be adequate
6. Documentation regarding bona fide job opportunity (if applicable)
Applies if the employer is a closely held corporation or partnership or if there is a familial relationship between management and the alien, or if the alien is one of a small number of employees
If applicable, documentation consisting of the Articles of Incorporation, partnership agreements, licenses, an organizational chart documenting all positions and relations between workers, the total investment of each individual, and the name of the human resources representative should all be kept within the file
7. Prevailing wage documentation
The State Workforce Agency (‘SWA’) prevailing wage determination printout will suffice; however, if the employer used an alternative wage source to obtain a prevailing wage determination, the employer should retain copies within the file
8. Recruitment documentation consisting of: (three different mediums must be utilized in addition to the two required print ads)
• Print Ads – copies of the newspaper pages in which the advertisements appeared will suffice
– if a professional journal was utilized, a copy of the page in which the advertisement appeared will be adequate
• Job Fairs – a copy of a brochure advertising the fair and/or newspaper advertisements in which the employer is named as a participant in the job fair will be sufficient
• Employer’s Web site – a dated copy of the page from the website that advertises the occupation involved will suffice
• Job Search Web site (other than employer’s)
– a dated copy of the page(s) from one or more website(s) that advertise the occupation involved will be adequate
• On-Campus recruiting – copies of the notification issued or posted by the university’s placement office naming the employer and the date it conducted interviews for employment in the occupation will be sufficient
• Trade or professional organization journals/newspapers – copies of pages of newsletters or trade journals containing advertisements for the occupation involved will suffice
• Private employment firms – copies of contracts between the employer and the private employment firm and copies of advertisements placed by the private employment firm for the occupation involved will be adequate
• Employee referral program with incentives – dated copies of employer notices or memoranda advertising the program and specifying the incentives offered will be sufficient
• Campus placement offices – a copy of the employer’s notice of the job opportunity provided to the campus placement office will suffice
• Ads in local and ethnic newspapers – copies of the newspaper pages in which the advertisements appeared will suffice
• Radio and Television advertisements – a copy of the text of the employer’s advertisement along with a written confirmation from the radio/television station stating when the advertisement was aired
9. Recruitment Report
The employer must sign a report describing the recruitment steps undertaken and the results achieved, the number of hires, and if applicable, the number of U.S. workers rejected, categorized by the lawful job-related reasons for such rejections
• Resumes, Job Applications, and job applicant record – A certifying officer may request U.S workers’ resumes or applications, therefore employers must retain resumes and/or job applications for each worker responding to the various recruitment steps
– The employer must provide lawful job-related reasons for rejecting each applicant
– The employer should complete a job applicant record for each worker who responded to the employer’s recruitment efforts, including workers who were never contacted because their resumes clearly indicated that they were unqualified
• Notice and consideration of recently laid-off workers (if applicable)
– copies of letters sent to the workers
– the employer’s recruitment report should also reflect that such workers were notified and considered and should state the lawful, job-related reasons for rejection
10. Business Necessity Documentation
More weight is given to “independent” documentation – as a result, business necessity letters should be supported by independent documentation, such as letters from clients, expert evaluations, etc, whenever possible
• Education and experience requirements – letters or other published materials from professional organizations in the field attesting to the fact that its members normally possess the education or experience being required by the employer, and/or…
– letters from members of the academic community or experts in the industry attesting to the fact that graduates of certain educational degree programs or persons with certain experience have acquired a certain type and level of knowledge and that knowledge relates directly to the job duties to be performed, and/or…
– copies of relevant pages from the employer’s personnel descriptions indicating that the special requirements are customarily required for the position offered within the company, and/or…
– evidence that it is the employer’s standard practice to require the relevant degree or experience accompanied by documentation establishing the number of individuals hired for the position offered or similar positions and how many had the degree required or the major field of study required
As a reminder, it is the employer’s responsibility to maintain an up-to-date accurate audit file for each PERM applicant. Additionally, employers are required to retain copies of applications for permanent employment certification filed with the Department of Labor and all supporting documentation for a period of five years. This requirement raises the possibility of revocation actions occurring after approval of the labor certification and even after admission of the foreign national to permanent residence. Presumably, such post-admission actions will occur only if there is evidence of possible fraud. Moreover, this is exactly why it is extremely important to follow the procedure for PERM applications accurately, and to keep an up-to-date audit file for each PERM applicant.