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
Continue reading