PERM: Delivery Of Audit Letter Must Be Proved
The Department of Labour has issued a series of decisions
explaining what happens when the national Programme Electronic
Review Management (PERM) office asserts that it sent an audit
letter which the employer says it never received.
In the United States, where mail is reliable, there is usually a
presumption that a letter mailed in the normal course of business
was properly received by the addressee. However, the presumption of
delivery 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 Labour Certification Appeals has held in favour of
employers, but only when two conditions are met:
- The employer must assert, under oath, that it did not receivethe audit letter.
- The Department of Labour must provide documentation of itsinternal 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 that it took all the normal steps. Printer
malfunctions are often to blame, such as when audit letters
addressed to two different employers may accidentally be inserted
in the same mailing envelope. In fact, 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 was Jerhel
Plastics, Inc (2016-PER-019, July
26 2016). In its analysis the administrative court
noted that when audit letters are sent by certified mail, there is
a strong presumption that they were probably received. Since the
Department of Labour does not normally use certified mail, the
board found in favour of the employer which attested that it had
not received the letter, because the Department of Labour had no
real proof that the letter had actually been sent.
In Jerhel the employer had checked the online
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 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 their PERM case status
frequently at the Department of Labour’s online iCERT portal
(the same portal as is used to file a PERM application) and save
online reports as proof in case of future disputes.
The Department of Labour has issued a series of decisions
explaining what happens when the national Programme Electronic
Review Management (PERM) office asserts that it sent an audit
letter which the employer says it never received.
In the United States, where mail is reliable, there is usually a
presumption that a letter mailed in the normal course of business
was properly received by the addressee. However, the presumption of
delivery 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 Labour Certification Appeals has held in favour of
employers, but only when two conditions are met:
- The employer must assert, under oath, that it did not receivethe audit letter.
- The Department of Labour must provide documentation of itsinternal 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 that it took all the normal steps. Printer
malfunctions are often to blame, such as when audit letters
addressed to two different employers may accidentally be inserted
in the same mailing envelope. In fact, 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 was Jerhel
Plastics, Inc (2016-PER-019, July
26 2016). In its analysis the administrative court
noted that when audit letters are sent by certified mail, there is
a strong presumption that they were probably received. Since the
Department of Labour does not normally use certified mail, the
board found in favour of the employer which attested that it had
not received the letter, because the Department of Labour had no
real proof that the letter had actually been sent.
In Jerhel the employer had checked the online
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 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 their PERM case status
frequently at the Department of Labour’s online iCERT portal
(the same portal as is used to file a PERM application) and save
online reports as proof in case of future disputes.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.