The following is not legal advice and is only my opinion.  Please consult with a qualified immigration lawyer for  information relating to your unique case.

From our experience and that of other immigration lawyers we have spoken to, there has been an increase in the frequency of PERM application audits for cases filed with the Atlanta Processing Center.

I have a couple of theories on why this may be the case:  (1)  the backlog elimination centers have closed so there is additional available staff; (2)  audits of cases are occurring almost universally in cases where:  a.  the employer’s minimum job requirements exceed the lowest of the SVP code range attributed to the position, which is very frequently the case, b.  the alien has paid for his or her PERM application or a portion thereof (the regulations now require that the employer pay all such expenses in full, there are limited exceptions for cases for which an attorney was hired before the reg was implemented), or c.  there is a foreign-language requirement.  Add other reasons and random audits and one can see why many PERM applications have or will be audited.

The problem with auditing all of these cases is the delay.  Some cases have been pending for six or none months without adjudication.  If such cases are denied, most cannot simply be re-filed because the recruitment efforts will be stale by the time the decision is received.

It seems that most applications that have been audited for the employer’s minimum requirements exceeding the SVP are being especially held up while the DOL determines whether business necessity letters provided in response to the audits are satisfactory, and whether cases where the employer stated that the requirements were “normal” in the application and the certifying officer disagrees according to their odd reading of the regulation and the preamble stating essentially that a position with an SVP of      7 > 8 = 7.

Author: Bradley Maged

I'm Brad Maged, an immigration lawyer in Boston, Massachusetts. I help people who want to live and work in the United States and companies that wish to employ them. This blog provides opinion and information on developments in immigration law. Thanks for reading!

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