Asian Journal- The Filipino-American Community Newspaper

EARLIER this year, the US Department of Labor (DOL) determined that there had been "improper attorney involvement" in the recruitment process in a PERM labor certification application filed by the national immigration law firm of Fragomen, Del Rey, Bernsen & Loewy. As a result, on June 2, 2008, the DOL announced its intent to automatically audit 100% of all PERM Labor Certifications the firm had filed and will file. In response to this harsh sanction, Fragomen sued the USDOL and on October 24, 2008 the case was dismissed by joint stipulation of the parties, brought about in part by DOL’s recognition that many immigration attorneys believed that the rule prohibiting the beneficiary of the PERM application or his attorney from "interviewing or considering any applicants for the job opportunity" did not apply to attorneys who only represented the Employer only. Due to this confusion, the DOL will release cases subject to audits on the basis of this rule and will only apply the "correct interpretation" of the rule to PERM applications in which the recruitment for the job opportunity was commenced after August 29, 2008.

Since March 2005, the DOL has been processing Permanent Labor Certification applications under the Program Electronic Review Management system, or PERM. PERM was designed to allow employers to continue to sponsor foreign workers to fill open positions in a streamlined manner, while still requiring employers to show that they could not find available "qualified, willing and able" US workers before filing an Immigrant Petition with the USCIS. While PERM has proved to be a much speedier and more manageable process, Employers must adhere to the strict rules and conduct recruitment of potential applicants in a fair and unbiased manner, without an immigration attorney’s undue influence or trying to take any "short-cuts" in the process.

Most jobs for which a US employer wishes to hire a foreign national, through which the worker will seek permanent resident status in the United States, require that the employer first obtain a "labor certification" from the DOL. The labor certification process is designed to establish that there are no "qualified, willing and able" U.S. workers available in the area of intended employment, which protects wages and working conditions in the United States.

Under PERM, the employer is required to undertake recruitment efforts during the sixth month period preceding the filing of the LC. In recruiting, the employer must place at least two Sunday print ads in a newspaper of general circulation at least 30 days, but not more than 180, prior to filing, and use any "in-house" media the employer utilizes in accordance with normal recruitment procedures in the organization. The employer must also place a "job order" with the State unemployment agency for 30 days and post printed notice at the job location for a period of ten days. Professional jobs and jobs requiring advanced degrees require at least three additional types of recruitment efforts.

Employers must timely interview any potentially qualified applicants and accurately memorialize all recruitment efforts and outcomes of interviews. The employer does not identify the individual rejected workers in filing the initial application. Since the PERM system relies on attestations and audits for accuracy and truthfulness in the LC process, however, employers must maintain records of the recruitment and detailed reasons for rejecting US workers. The DOL could audit the records, request additional information, or call for supervised recruitment after filing.

The DOL rule at issue in the Fragomen case, 20 CFR Section 656.20(b)(2), states that "neither the alien, nor the alien’s attorney or agent, may be involved in interviewing and considering US workers for the job opportunity." The reason for this rule is clear; the alien beneficiary and his attorney both desire that any applicant for the job would be deemed unqualified, such that allowing them to conduct any interviews would be a blatant conflict of interest. In the Fragomen case, the DOL was concerned that the law firm had stationed paralegals at some of its employer client work sites, who may have been involved in the recruiting process for their PERM labor certification applications. Since Fragomen was not representing the worker beneficiaries in the PERM cases, it believed that 20 CFR §656.10(b)(2) did NOT apply to the firm. Indeed, a plain meaning of the rule supports this interpretation, as it refers to the "alien’s attorney" only.

The case has now been resolved, and the parties are in agreement that the rule applies to parties representing the alien, the employer or both. Nonetheless, there remain lingering questions as to what an attorney’s role is with respect to the recruitment process. Prior to even commencing recruitment, the Attorney should advise the employer if certain requirements will be deemed restrictive and thus hurt the chances of success, while encouraging the employer to include requirements that are necessary to the job and will enhance the chances for success. The Attorney, however, should not and cannot intermeddle with the recruitment process or attempt to steer the employer toward taking any "shortcuts" which would taint the entire recruitment effort. In such a case, receipt of an audit will likely be fatal to the application. A properly advised employer should not fret upon receipt of an audit, as audits are issued regularly and perhaps randomly in many cases, in order to preserve the accuracy and effectiveness of the whole system.

Attorneys should not be involved with the direct receipt of resumes and/or job applications and should avoid being present when job interviews are conducted. Attorneys should also continue to advise employers of their duty to recruit for the job opportunity in good faith and only reject US workers who are not "qualified, interested, able and available" for the position. The Attorney must advise the employer at all steps along the way why certain procedures are undertaken and how to avoid pitfalls in the process; not leave management of the case up to an assistant of paralegal.

In all, the employer should understand exactly why things are being done and not settle for vague explanations. The outcome of the case should not be left to the Attorney’s "paralegal" or some recent law school graduate. Far too much is at stake for the employer, the alien worker and his family to rely on less than bona fide professional assistance.

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Daniel P. Hanlon is a California State Bar Certified Specialist in Immigration and Nationality Law and a principal of Hanlon & Greene, a Professional Corporation, located at 225 S. Lake Ave., 11th Floor in Pasadena, California; tel. No. (626) 585-8005. Hanlon & Greene is an immigration and full-service law firm. E-mail: This e-mail address is being protected from spambots. You need JavaScript enabled to view it and www.hanlon-greene.com

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