If the number of employees is small then the company may be required to submit copies
of the articles of organization, list of shareholders, their relationship to the foreign
national (if any) and their investment amounts in the event of an audit by DOL. The
burden will be on the employer to prove that the job is truly open and available to all U.S.
workers. The number is not specified, but the rule does state that if the employer has
fewer than 11 employees, and an audit requests documentation of lack of alien influence
and control over the job opportunity, then the employer must document any family
relationship between the alien and employees.
• This question is a possible trigger point for an audit, but to date practitioners have not
noticed any pattern of audits focused on smaller firms.
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• Where the number of employees is below 11, and there are part-time employees, one
should count part-time employees and not just report full-time equivalents. Although the
PERM regulatory definitions provide that only full-time employment qualifies one for a
labor certification, no such requirement is delineated in the instructions to item C#5.
Note that the draft form in the Federal Register asks for the “number of employees in the
area,” but the actual form asks for the number of employees without requiring the
employer to count only employees in the local area.
• On the other hand, if the number of employees is above 10, then it may be advisable not
to count part-time employees or to only count full-time equivalents so that the payroll
cost listed on tax returns does not seem to be low for the stated number of employees.
The USCIS may review this information when the I-140 is filed.
• The question does not ask for current number of employees, but the instructions and
online help do specify the current number.