PERM Audits on EB-2 and Other Applications on the Rise January 31, 2008
The implementation of the Program Electronic Review Management (PERM) procedure in March 2005 was eagerly heralded as a revolutionary method for expeditiously processing labor certifications.Prior to PERM, labor certifications would often take several years to process.Under PERM, however, the processing time is now as little as a few days to a couple of months.
In the first few years after implementation, the Department of Labor (DOL) focused its attention on resolving the numerous systematic technological problems of the internet-based PERM program.For example, users had problems logging on, creating accounts, and completely erroneous decisions were issued due to programming glitches. Now that the DOL seems to have resolved those technological glitches, a much more scrutinized analysis of the content in PERM applications is being conducted.Consequently, applications that may have been swiftly approved in the past without any question by the DOL are now subjected to a DOL audit. One type of application that is now commonly audited involved those seeking certification under the EB-2 Advanced Degree category.Many seek to process a labor certification for qualification under the EB-2 category due to the speed in which they thereafter qualify for a work permit and permanent residency.Since there is no visa backlog under the EB-2 category, an individual can immediately proceed with the applications for a work permit and permanent residency immediately after the labor certification is approved.Those who do not qualify under the EB-2 category must instead wait several years after labor certification approval before applying for a work permit and permanent residency. To qualify under the EB-2 Advanced Degree category, it must be proven that the position listed on the application can only be performed by an individual who has acquired at least a Master’s degree or the equivalent, which is a Bachelor’s degree plus 5 years of progressive post-baccalaureate experience, and that the individual being sponsored has attained that requirement. The laws, however, impose limits as to what can be indicated for the education and experience requirements.Most often, such as with accountants and engineers, the requirement of a Master’s degree or equivalent exceeds the allowable limit, which is usually a Bachelor’s degree plus 2 years experience.When an application exceeds the allowable limit by requiring a Master’s degree or its equivalent, the DOL will now in all likelihood audit the application. To be successful, the applicants must be able to prove that the Master’s degree or its equivalent is a business necessity for that particular position.To prove business necessity, it must be shown that the job duties and requirements bear a reasonable relationship to the occupation in the context of the employer’s business and are essential to perform the job in a reasonable manner.This standard is quite often difficult to prove.Accordingly, before proceeding with a labor certification seeking to qualify under the EB-2 category, a full assessment as to the ability to successfully justify business necessity for the intended position must be conducted.Otherwise, what appeared to be the faster route toward a work permit and permanent residency may actually result in delay and additional expense. Another cause for issuance of an audit is when there is a family relationship between the sponsor and the beneficiary.Since the basis of a labor certification is that there are no qualified and willing US workers who can perform the position on the application, the DOL questions whether a sponsor has truly and legitimately searched for a US worker when there is a familial relationship.To be successful in an audit, the parties must be able to show that no preferential treatment was provided to the sponsored beneficiary and that a recruitment campaign searching for a US worker was legitimately conducted. While these are the more common bases for an audit, there are several more reasons why an audit is conducted, included random selection.With the rise of audits, it is imperative that individuals are represented by an attorney knowledgeable with all of the intricacies involved in the processing of a PERM labor certification to ensure that all requirements can be fulfilled. Aquino & Aquino, A Professional Law Corporation, also handles family law, personal injury, criminal defense, employment discrimination, and unlawful termination.