December 2024 PERM Tip #2: When the CO Requests Documentation of an Employer’s Ability to Pay

BIB Daily presents bimonthly PERM practice tips from Ron Wada, member of the Editorial Board for Bender’s Immigration Bulletin and author of the 10+ year series of BALCA review articles, “Shaping the Future of PERM.” Questions or comments may be sent to Ron at ron.wada@tandslaw.com.

As part of an audit the Certifying Officer may request documentation from an employer that is not required to be maintained by an employer under the PERM regulations.  The requested documentation may relate to the employer’s business status, ability to pay, or potential familial relationship with the employee beneficiary.  The underlying principle is that the CO may suspect that the job described in the PERM application is not a bona fide job opportunity.  In this situation, the CO may issue a Request for Information (RFI) that borrows from the regulation at 20 CFR 656.17(l), which addresses the situation where the employer is “a closely held corporation or partnership in which the alien has an ownership interest, or if there is a familial relationship . . . or if the alien is one of a small number of employees.”  This request for supplemental documentation can be quite onerous.  It is much more far ranging and intrusive than a USCIS request for documentation of the employer’s ability to pay at the I-140 stage.  It is a mistake to take this type of request lightly.

Though it may feel like an unreasonable overreach by the CO, failing to provide a complete response can result in denial even where the documents that the employer submitted should have been more than sufficient to demonstrate ability to pay according to USCIS standards.  As an example, the employer in Matter of People Tech Group Inc. provided 17 of the 22 requested documents including income tax returns, quarterly tax returns and all employee W-2s and was denied for submitting an incomplete response.  BALCA has generally supported the Certifying Officer’s onerous documentation requests, with notable exceptions where the employer did not submit all requested documentation but demonstrated good faith in attempting to comply with the CO’s request (see Matter of Humble Investments LLC and Matter of Venturesoft Global Inc.).   In this situation, it is best to provide all documentation requested if possible, and where not possible provide an explanation for why it is not possible and offer alternative documentation to demonstrate good faith.

For further information, see:

Ron Wada, “Shaping the Future of PERM – BALCA Highlights 1Q & 2Q 2024,” 29 Bender’s Immigr. Bull. 1269, 1276 (Aug. 1, 2024); Ron Wada, “Shaping the Future of PERM – BALCA Highlights 2021,” 27 Bender’s Immigr. Bull. 613, 615 (April 15, 2022); Matter of Humble Investments LLC, 2024 BALCA LEXIS 156 (May 20, 2024); Matter of People Tech Group, Inc., 2021 BALCA LEXIS 386 (Nov. 30, 2021); Matter of Venturesoft Global, Inc., 2021 BALCA LEXIS 233 (July 29, 2021).