4.1 What happens if there is an audit?

If an application is selected for audit, the employer will be notified and required to submit, within 30 days, documentation to verify the information stated in or attested to on the application. Note that responses must be sent within 30 days, though the DOL has indicated that they need not be received within 30 days, which would indicate that a postmark or other evidence of mailing by the 30th day should suffice. Further, Certifying Officers will have the discretion to grant extensions up to an additional 30 days.
If DOL determines that the documentation is complete and consistent with responses on the ETA 9089, it will certify the application. If the documentation is deemed deficient by the DOL, the certification may be denied. Alternatively, the Certifying Officer may request additional documentation or order supervised recruitment.

4.2 How will supervised recruitment work? Will it be like the current system?

The supervised recruitment that may be required is similar to the current process, which requires the placement of advertisements in conjunction with a 30-day job order. Unlike the current process, however, the recruitment will be supervised by DOL Certifying Officers rather than a state office. At the completion of supervised recruitment, the employer will have 30 days to document in a recruitment report the outcome of the effort, and the lawful job-related reasons for not hiring U.S. worker applicants. Upon receipt of the employer’s recruitment report, the Certifying Officer will either certify or deny the application.

4.3 Is it possible to appeal the denial of a labor certification?

Yes. The notification of denial should include a list of deficiencies and the employer will be able to seek an appeal of the denial by the Board of Alien Certification Appeals (BALCA). The employer will have 30 days to appeal. BALCA may affirm or overturn a denial, but may not remand a case to a Certifying Officer, as is the case under current practice.