Withdrawal of PERM Application May Bring Consequences for Employer

July 29, 2012 § Leave a comment

Department of Labor now has new policies for two different situations which involves in the withdrawal of PERM application. This might bring little unfavorable consequences to the employer.

First up, when the audit of the PERM application is under progress employer may be withdrawn, but the audit process will continue. DOL has requested in many audits and now subjected the employer for inspection. Employer might have not conducted advertising and recruitment correctly, so they fear to provide documentation and withdraw the PERM application.

PERM Audit Procedure

Certain PERM application randomly picked for the audit and quality control purposes.

1. If an application is selected for the audit process, the certifying officer shall issue an audit letter. The audit letter will include, what all documents must be submitted by the employer, date by when required documents must be submitted (30 days from the date of audit letter). If the required documents are not submitted with specified dates. Failure to provide the requested documents may exhaust available administrative remedies.

2. If the employer doesn’t submit the required documents under section 656.24 application will be denied. Certifying officer will ask the employer to conduct supervised recruitment under section 656.21 for next year before any other new filing of PERM process.

If a PERM application is selected for audit procedure, the employer cannot claim that application is no longer valid. In some cases employer might have a valid reason in withdrawing the application, such as lack of interest, cost consideration, unavailability of the alien worker and different business strategy. If the reason is not known for the withdrawal of the application or even refuse to cooperate with an audit process, employer shall be penalized.

In other case the Certifying officer can select for the supervised recruitment once selected employer must file all new applications for the same alien under supervised recruitment. Procedure involved in is by mailing PERM application to DOL and leaving the Part “I” in blank.

What if the employer wants to withdraw undergoing Supervised Recruitment?

OFLC/ANPC has the authority in granting employer’s withdrawal request while application is undergoing supervised recruitment. In future application for the same alien worker whose application was withdrawn it has to be filed under supervised recruitment pursuant to 20 CFR 656.21. OFLC/ANPC determines whether all the application for the same job opportunity and application for the same alien worker should be filed under supervised recruitment. Then the employer must use ETA Form 9089, except Section I, Recruitment Information for the same alien worker or for the same job opportunity. The employer must file the above referenced application by mail to the Atlanta National Processing Center at the following address:

U.S. Department of Labor

Employment and Training Administration

Office of Foreign Labor Certification

Attention: Supervised Recruitment Certifying Officer

P.O. Box 56625

Atlanta, Georgia 30343

If the application is withdrawn repeatedly from the employer which is undergoing supervised recruitment shall be review carefully and employer may be debarment from the permanent labor certification program for a reasonable period of more than 3 years pursuant to 20 CFR 656.31(f)(1)(v).

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