Payment Irregularities Spark Increase in PERM Audits

Audits are an inherent part of the PERM (Program Electronic Review Management) labor process, which is attestation based. The United States Department of Labor (DOL) has the option to audit any PERM labor case to verify the accuracy of the statements in the PERM Labor Certification (LC) filing and otherwise assess the case. There are two different types of audits. Cases are sometimes selected for audit at random and in other cases, the DOL targets specific case concerns. A recent DOL trend in PERM audits is occurring that requires sworn statements pertaining to the exchange of certain improper payments between the employee (or any other third party) and the employer.

In addition to requests for documentation pertaining to recruitment efforts and related subjects, we have seen an increase in the number of audits where the DOL has begun issuing requests for declarations from the employer and foreign worker regarding details of payment for the labor certification. Under current regulations, all costs related to the PERM labor preparation and filing must be paid by the employer. There are limited exceptions for certain established third-party relationships. The payment-related audits require employers and the foreign worker to sign declarations, under penalty of perjury, stating whether the employer received payments of any kind by the foreign worker or a third party for any activity related to obtaining permanent labor certification.

The audit requests specify that such fees include the employer’s attorney’s fees, advertisement costs, administrative fees, and any other associated costs or fees. The audit further specifies that such payments include wage concessions, kickbacks, bribes or in-kind payments, as well as free labor and/or any other form of payment for services essential to the labor certification process.

As the issuance of these payment-related audits is on the rise, employers and sponsored employees should be aware of the possibility that they could receive a request for a sworn declaration regarding PERM-related payment matters. It is important to comply with the applicable regulation, and to be able to honestly attest to full compliance in response to an audit. Please be sure to consult MVP Law Group if you have concerns as to whether your PERM related cost payment practices comply with the regulatory changes that were put in place on July, 16, 2007.

~Article contributed by Stacey Bell, Senior Paralegal