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 receive

    the audit letter.

  • The Department of Labour must provide documentation of its

    internal 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 receive

    the audit letter.

  • The Department of Labour must provide documentation of its

    internal 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.

Scroll to Top