ILW.COM - the immigration portal Immigration Daily

Home Page


Immigration Daily

Archives

Processing times

Immigration forms

Discussion board

Resources

Blogs

Twitter feed

Immigrant Nation

Attorney2Attorney

CLE Workshops

Immigration books

Advertise on ILW

VIP Network

EB-5

移民日报

About ILW.COM

Connect to us

Make us Homepage

Questions/Comments


SUBSCRIBE

Immigration Daily


Chinese Immig. Daily




The leading
immigration law
publisher - over
50000 pages of
free information!
Copyright
© 1995-
ILW.COM,
American
Immigration LLC.

View RSS Feed

Joel Stewart on PERM Labor Certification

Delivery of PERM Audit Letters Must Be Proved

Rate this Entry
The DOL has issued a series of decisions explaining what happens when the national PERM office asserts it sent an audit letter that the employer says it never received.

In the US, since mail is reliable, there is usually a presumption that a letter mailed in the normal course of business was properly received by the addressee. The presumption of delivery, however, depends on proof provided by the sender that the letter was actually mailed. Disagreements about delivery abound.

In a string of administrative court cases on the subject, the Board of Alien Labor Certification Appeals has held in favor of employers, but only when two conditions are met. First, the employer has to assert, under oath, that it did not receive the audit letter. Second, the DOL has to provide documentation of its internal mailing process to “prove” that it sent the letter.

In the computer age, glitches have added to the likelihood that letters may not have actually been sent, even though the sender sincerely believes it took all the normal steps.

Printer malfunctions are often to blame, as when audit letters addressed to two different employers are accidentally inserted in the same mailing envelope. It is not uncommon for an employer or attorney to receive an audit letter that should have been sent to another person.

The most recent case decided by the Board is Jerhel Plastics, Inc., issued on July 26, 2016, and cited as 2016-PER-019. In its analysis, the administrative law judges noted that when audit letters are sent by certified mail, there is a strong presumption that they were probably received.

However, since the Department of Labor does not normally use certified mail, the Board upholds the employer when the Employer attests it has not received the letter, and the DOL has no real proof that the letter was actually sent.

In Jerhel, the employer had checked the on-line status of the application, which consistently showed that the PERM application was under review and, therefore, that an audit letter had not been issued. The court also believed that the Employer had no apparent motive to lie about not having received the audit letter.

Proving a negative is always a difficult task. In view of the difficulty in proving that an audit letter has not been received, employers should check PERM case status frequently at the Department of Labor's on-line iCERT portal (the same used to file the PERM application) and save on-line reports as proof in case of future disputes.

Submit "Delivery of PERM Audit Letters Must Be Proved" to Facebook Submit "Delivery of PERM Audit Letters Must Be Proved" to Twitter Submit "Delivery of PERM Audit Letters Must Be Proved" to Google Submit "Delivery of PERM Audit Letters Must Be Proved" to StumbleUpon Submit "Delivery of PERM Audit Letters Must Be Proved" to Reddit Submit "Delivery of PERM Audit Letters Must Be Proved" to Digg Submit "Delivery of PERM Audit Letters Must Be Proved" to del.icio.us

Tags: None Add / Edit Tags

Comments

Put Free Immigration Law Headlines On Your Website

Immigration Daily: the news source for legal professionals. Free! Join 35000+ readers Enter your email address here: