The DOL has issued a series of decisions explaining what happens when the national PERM office asserts it sent an audit letter that the employer says it never received.

In the US, since mail is reliable, there is usually a presumption that a letter mailed in the normal course of business was properly received by the addressee. The presumption of delivery, however, 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 Labor Certification Appeals has held in favor of employers, but only when two conditions are met. First, the employer has to assert, under oath, that it did not receive the audit letter. Second, the DOL has to 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 it took all the normal steps.

Printer malfunctions are often to blame, as when audit letters addressed to two different employers are accidentally inserted in the same mailing envelope. 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 is Jerhel Plastics, Inc., issued on July 26, 2016, and cited as 2016-PER-019. In its analysis, the administrative law judges noted that when audit letters are sent by certified mail, there is a strong presumption that they were probably received.

However, since the Department of Labor does not normally use certified mail, the Board upholds the employer when the Employer attests it has not received the letter, and the DOL has no real proof that the letter was actually sent.

In Jerhel, the employer had checked the on-line 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 apparent 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 PERM case status frequently at the Department of Labor's on-line iCERT portal (the same used to file the PERM application) and save on-line reports as proof in case of future disputes.