The Department of Labor’s (DOL) Office of Foreign Labor Certification has increasingly utilized Requests for Information (RFIs) in lieu of formal audit notices during the PERM labor certification process. This shift intends to enhance processing efficiency and reduce case processing times. However, it also raises important questions about procedural protections that employers should understand.

Improving Processing Efficiency

The DOL’s expanded use of RFIs demonstrates a thoughtful approach to streamlining the PERM process. Rather than initiating formal audits for every case requiring additional information, DOL can now use RFIs to efficiently resolve factual clarifications and administrative issues. This targeted approach impacts both employers and the DOL by reducing administrative burden while maintaining thoroughness in case adjudication.

For employers, RFIs typically focus on specific clarifications such as job duty specifications, travel requirements, or other factual matters that can be resolved without the comprehensive documentation submission required for formal audits. This more surgical approach to information gathering represents an evolution in PERM processing.

Understanding the Current Landscape: RFIs vs. Formal Audits

The distinction between RFIs and formal audit notices carries implications for employers.

Formal audit notices involve a well-established process with clearly defined parameters:

1. Triggered by compliance concerns, application inconsistencies, or random selection
2. Require submission of complete recruitment files
3. Carry formal denial risk if documentation is incomplete or inconsistent
4. Include specific response timelines (typically 30 calendar days)
5. Provide established rights to seek reconsideration and appeal to the Board of Alien Labor Certification Appeals (BALCA)
6. Create audit responses that become part of the administrative record for potential appellate review

RFIs, by contrast, operate as discretionary tools that are not specifically defined within the PERM regulations at 20 CFR Part 656. While both formal audits and RFIs are used to clarify factual issues, RFIs generally:

1. Focus on specific factual clarifications rather than comprehensive compliance review
2. Do not typically request full recruitment evidence
3. Invoke fewer formal documentation requirements
4. Operate under a less clearly defined procedural framework

The Procedural Protection Gap

Below are several areas where procedural clarity surrounding this shift toward RFIs might benefit both employers and the DOL’s objectives.

Response Rights and Obligations: Unlike formal audits, the procedural framework for RFI responses lacks clear regulatory definition. This creates uncertainty about response standards, documentation requirements, and timeline expectations.

Appeal and Reconsideration Rights: It remains unclear whether employers retain the same due process protections when a PERM application is denied following an RFI response. The availability of reconsideration requests and BALCA appeals following RFI-based denials has not been clearly established.

Administrative Record Development: The integration of RFI responses into the administrative record for potential appellate proceedings represents another area requiring clarification.

Standards of Review: Questions remain about whether BALCA would apply the same standards of review to denials following RFIs as it does to denials following formal audits, particularly regarding the evaluation of whether employers had adequate opportunity to address identified deficiencies.

Addressing these procedural questions may help strengthen the PERM process by providing clarity that supports both due process and administrative efficiency.

Clear guidance on RFI procedures may affect stakeholders by:

1. Providing certainty to employers about their rights and obligations
2. Supporting DOL’s efficiency objectives through clear procedural expectations
3. Maintaining the integrity of the PERM process through preserved due process protections
4. Reducing potential confusion and inconsistent application

Such guidance could take the form of updated regulations, policy memoranda, or stakeholder guidance documents.

Practical Implications for Employers

Until formal guidance emerges, employers should consider:

1. Treating RFI responses with the same care and attention as formal audit responses
2. Maintaining comprehensive documentation of RFI communications and responses
3. Requesting clarification of response expectations when RFI requirements are unclear
4. Preserving arguments regarding procedural protections in case of denial

With appropriate procedural clarity, the expanded use of RFIs in PERM processing may achieve its efficiency objectives while maintaining the due process protections that ensure program integrity.

As this practice continues to develop, DOL may provide additional guidance that clarifies these procedural questions.