United States: What Employers Need to Know About the Government’s New PERM Investigations and Program Suspensions

The situation is evolving rapidly, and the scope, targets, and practical implications of the initiative may change as the government proceeds with its investigations. The Administration’s statements thus far have provided few details about the allegations and any evidence concerning the organizations named. Therefore, it is important to avoid drawing any conclusions from the announcement alone. Nevertheless, organizations need to continue monitoring the situation.

The ongoing investigations could be expanded to additional organizations. In addition, companies that have vendor relationships with the organizations under investigation could be approached by the government to provide information.

Under agency regulations, the Department of Labor has the authority to investigate suspected fraud or misrepresentation in an organization’s use of the PERM program. While investigations are underway, and even before there is any finding of wrongdoing, DOL may suspend an organization from participation in the labor certification program. Suspensions may initially last up to 180 days, but DOL can extend suspensions until the investigations or related court proceedings end; this means that a suspension could be lengthy depending on the circumstances.

As noted above, employers should avoid drawing any conclusions from the announcement alone. Participation in U.S. immigration programs remains lawful. Employers need to take steps to confirm their compliance with immigration program rules and ensure that they are able to demonstrate that compliance through complete and consistent records.

Organizations may be at higher risk of scrutiny if they have conducted or are planning layoffs or other workforce reductions, have a high volume of immigration filings, engage in or host offsite placements of sponsored foreign nationals, or are state or federal government contractors, among other factors. Those organizations should work with their immigration counsel and their internal counsel’s office to review current practices and sponsorship plans before submitting immigration filings. Even organizations at lower risk should review their procedures and consider strengthened controls where warranted.

Communications related to a government investigation – including subpoenas, document requests, legal-hold notices, or government notices of suspended processing – should be sent immediately to the company’s general counsel and Fragomen team. Company employees should not begin to prepare or provide a response before general counsel and Fragomen have reviewed the request. The organization should also preserve potentially relevant paper and electronic records and suspend routine deletion or destruction where appropriate.

If your organization has any questions about the government’s latest investigations or any issue related to immigration compliance, contact your Fragomen professional or the firm’s Government Strategies and Compliance Group.