Update on PERM Approvals, Denials and Audit Letters
May 31, 2005
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 the Department of Labor (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
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 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. Most notably, employers must have a physical address (not just a Post Office Box), and must not include recruiting that took place outside of the appropriate time frame (more than 30 days, but less than 180 days prior to filing).
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 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 response must be postmarked within thirty days from the date of the letter (which all appear to have been mailed on a timely basis).
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