AUDIT

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Labor Certification Audit

Immigration Officer certifying the labor certification can request an audit on either on suspicion or randomly. If selected for audit, the employer will receive an audit letter specifically stating the additional documentation to be submitted, establish a date of 30 days from the date of the audit letter for submission of required documentation, and advise that the application will be denied if the information is not received by the deadline. If the employer does not respond as required, this will be considered a refusal to comply with administrative remedies and no review is available either administratively or judicially.

At the discretion of the officer, the employer may also be required to conduct supervised recruitment for any future labor certification filings for up to 2 years. By May 2011, audit process time reduced to below 6 months. The CO may grant one extension up to 30 days from the initial 30 period in which to respond to the audit letter. After receipt of the response from the employer, the CO may also request additional information and/or documentation or require that the employer conduct supervised recruitment.

Denials of PERM

PERM applications can be denied for a variety of reasons, however, once a denial notice is received, there are important decisions to be made by the employer and employee.

Employer Options: Reconsideration or Review: After the issuance of a PERM denial notice by the DOL, the employer has thirty days to either: request reconsideration of the decision by the certifying officer (CO); or request review by the Board of Alien Labor Certification Appeals (BALCA). If the employer does not request either option within the thirty-day period, the decision will become final, and the employer will have no further opportunity to challenge the denial. Only the employer (not the foreign national beneficiary) is allowed to request review or reconsideration of the denied PERM. An attempt by the employee to request review will be rejected without further action. Additionally, the costs associated with the challenge to the denial must be paid by the employer, as this is part of the PERM process. Reconsideration by the DOL Certifying Officer: following denial of a PERM application, the employer may request reconsideration of the decision by the CO. This is essentially requesting that the individual who denied the case look at it again and reconsider the denial. The motion for reconsideration must be submitted in writing to the CO. The employer may not submit completely "new" evidence, but is allowed to submit: copies of documentation already submitted to DOL in response to a DOL request and/or submit documentation that existed at the time when the PERM application was filed and that the employer is required to maintain under PERM regulations. Review or Appeal with BALCA: The decision to request review directly by BALCA is only permitted to review documentation that has already been considered by the CO Motion for Reconsideration: If the employer files a motion for reconsideration of the denied PERM application, the CO has a choice. The CO can grant the motion for reconsideration and reopen the denied PERM application. Alternatively, the CO could deny the motion for reconsideration, and treat the motion as a request for a BALCA appeal / review. If the employer elects to proceed, the case is forwarded to BALCA for appellate review. Retention of PD and H1B Extensions: One of the driving forces behind the filing of BALCA appeals is the attempt to preserve the priority date. A BALCA reversal could save years of waiting time for a visa to be available. The waiting times for visa number availability can be many years. Thus, if there is no legal challenge to a denied PERM, the priority date (which may be several years old) will be lost. A new application will receive a new priority date. If the CO made a mistake, and the decision is challenged and approved, the earlier priority date will be preserved. A PERM application that is pending reconsideration or appeal is considered pending for purposes of obtaining extensions of H1B status beyond the six-year limit. A pending BALCA appeal allows the request for extension of H1B status Cannot Appeal and Re-File with Same Employer Another layer of complexity in this situation stems from a prohibition against the employer's filing a new PERM for the beneficiary while the reconsideration or BALCA appeal is pending. A new PERM application can be filed if the BALCA appeal is denied, or the employer may withdraw the BALCA appeal at any time in order to file a new application. BALCA's Options at Time of Review or Appeal: Once the appeal is docketed by BALCA, the employer and the DOL are allowed to submit a statement of position in support of their respective arguments. After receiving the position statements, BALCA has several options. It can uphold the CO's decision, denying the PERM application, or it can overrule the decision of the CO and order the approval of the PERM application. It can also remand the case to the CO to review again, under limited circumstances. Finally, it can order a full hearing on the application before BALCA, in Washington DC, with all parties given the opportunity to appear and argue their positions.

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