The Role of Counsel in PERM / Labor Certification Processing
Published September 5, 2008
Foreign nationals seeking to obtain permanent resident status in the U.S. by way of a job offer are usually subject to a process wherein the employer must document the unavailability of ready, willing and qualified U.S. workers to fill the position at issue. The process is initiated by way of an online application, known as PERM, submitted by the employer to the U.S. Department of Labor (DOL). The application is straightforward in its language and lay out, yet complex in its regulatory underpinnings. At the heart of the application is the employer’s attestation that good faith efforts to recruit for the position have been made (e.g., newspaper ads, internet postings, etc) in the previous 6 month period – an attestation that is subject to U.S. Department of Labor audit. And it is in this context where the role of legal counsel becomes so vital, where an employer must feel secure – in case of audit – that their recruiting records fall within regulatory requirements outlining what constitutes a good faith effort at recruitment.
In recent months the U.S. Department of Labor launched well publicized audits of clients of several high profile law firms across the U.S. and most recently issued a “restatement” of their view of the role of counsel in the PERM process. The DOL initiative involves audits of all applications filed by the various law firms due to suspicions that these law firms played too large a role in the recruitment process and in scrutinizing the job applications and resumes received in response to the employer’s recruitment efforts.
At least one of the firms fought back and sued the Department of Labor for what it saw as the unfair singling out of their firm and clients since the actions of their attorneys, according to the lawsuit, were entirely within the realm of permissible and appropriate counsel in the PERM context.
It appears that what was at the root of the DOL’s concern was law firm activity in playing a significant role in the preliminary review of job applicants seeking to fill the job that was the subject of the PERM application. Such a prominent role by an attorney at that early stage of the process was thought to be improper and too great a departure from how an employer would ordinarily go about recruiting for a position. As the restatement sets forth: ” the employer, and not the attorney or agent, must be the first to review an application for employment and must determine whether a U.S. applicant’s qualifications meet the minimum requirements for the position, unless the attorney or agent is the representative of the employer who routinely performs this function for the positions for which labor certifications are not file”.
In response to the lawsuit, the Department of Labor looks to have softened their stand a bit. In their “restatement”, the DOL takes a step at formally recognizing that the rules governing the PERM process are anything but simple, and that the procedures used by an employer to comply with the PERM rules in carrying out their recruitment and scrutiny of applicants are not necessarily “normal” or typical. Thus, according to DOL, it would not be unreasonable to seek legal counsel in addressing certain legal questions such as, what would constitute a lawful basis to reject a particular candidate for a position that is the subject of a PERM application. The DOL, in that regard states, “attorneys may … provide advice throughout the consideration process on any and all legal questions concerning compliance with governing statutes, regulations and policies”.
For the complete text of the DOL’s policy statement, see http://www.foreignlaborcert.doleta.gov/pdf/PERM_Guidance_Final_082908.pdf
PUBLISHED September 5, 2008 – “IMMIGRATION LAW FORUM”
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