Business Workshop: Increased scrutiny for foreign nationals

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The Department of Labor is making it harder for companies to employ foreign nationals on a permanent basis.

Over the past few years, the department has increased audits of applications for permanent employment of foreign nationals, called PERM Labor Certifications.

The Department of Labor is now auditing about 30 percent of the applications filed; it denies about half of the applications it audits. While PERM audits are conducted on a random basis, some factors may trigger audits:

• Positions that have had many layoffs.

• Positions that require frequent travel.

• Computer- and information-technology-related positions.

• Positions with low educational or experience requirements, but a high salary.

Because of the increased scrutiny of PERM applications, employers should properly document the recruitment process and contact they have with all job candidates. Recent audits have included requests for copies of the resumes submitted for the position along with documentation of contact with the candidates.

The federal auditor may also request that the employer establish the business necessity of educational or experience requirements if they exceed what the department considers as normal for the position.

Employers must pay for the labor certification process and are forbidden from taking any of the fees from foreign workers. Audits have requested sworn declarations from the employer and the foreign worker that the employer did not receive any payments of any kind from the foreign worker for activities related to obtaining the permanent labor certification.

Because of the increased chance for an audit, employers should carefully document the labor certification process, engage in a good-faith recruitment effort and seek assistance of legal counsel to ensure compliance with the technical requirements of employing foreign nationals.

-- Elaina Smiley, Meyer, Unkovic & Scott, es@muslaw.com

legalnews

Business Workshop is a weekly feature from local experts offering tidbits on matters affecting business. To contribute, contact Business Editor Brian Hyslop at bhyslop@post-gazette.com.


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