The Role of the Attorney in the PERM Process After the Fragomen Settlement

"AILA InfoNet Doc. No. 08110666 (posted Nov. 6, 2008)"

Practice Update

The Role of the Attorney in the PERM Process after the Fragomen Settlement

On June 2, 2008 the Department of Labor (DOL) issued a press release announcing it was auditing all of the PERM labor certification applications filed by the law firm Fragomen, Del Rey, Bernsen & Loewy LLP on behalf of its clients. The basis for the 100% audit was centered on what DOL perceived as "improper attorney involvement" in the consideration of U.S. worker applicants. On June 4, 2008 DOL issued an "Information Paper" providing FAQs regarding the audit. On June 13, DOL issued a "PERM Program Guidance Bulletin on the Clarification of Scope of Consideration Rule in 20 CFR §656.10(b)(2)." Fragomen filed a Motion for Preliminary Injunction against DOL challenging the audit on August 8, 2008. On August 29, 2008 DOL filed its Opposition to the Motion for Preliminary Injunction. On the same day, DOL issued a "Restatement of PERM Program Guidance Bulletin on the Clarification of Scope and Consideration Rule in 20 CFR §656.10(b)(2)." On September 17, DOL issued an unusual announcement that it had received evidence that many attorneys believed that 20 CFR §656.10(b)(2) did not apply to them unless they represented both the employer and the employee. That interpretation is incorrect, according to DOL, but DOL stated that because of that misunderstanding of the regulation, it would only apply the correct interpretation to recruitment initiated after August 29, 2008. DOL also stated that all audits in which the sole issue was the application of the consideration rule would be released.  
 
On October 24, 2008, DOL and the Fragomen firm filed a Joint Settlement Stipulation and Order with the U.S. District Court for the District of Columbia, setting forth terms for settlement of the lawsuit and case dismissal. The settlement of the Fragomen lawsuit brings to a conclusion a summer of confusion for attorneys with respect to DOL's views on attorney representation of employers during PERM. However, it leaves many questions unanswered. Does DOL still take the position that it has a role in regulating the attorney-client relationship in PERM?

The answers may lie in the documents that DOL filed as part of the lawsuit. Although the Memorandum of Points and Authorities in support of DOL's opposition to the Motion for Preliminary Injunction and related Declaration of William Carlson were filed as part of the specific Fragomen litigation, these documents and the August 29th Bulletin were unmistakably intended to go hand-in-hand. In the restated Guidance Bulletin, DOL pulled back from its prior restrictions on the right to counsel in labor certifications. Taken together, the restated Guidance Bulletin and the Carlson Declaration most likely provide us with DOL's current views on the proper role of attorneys in labor certifications and provide further guidance on who can participate in the consideration and/or interviewing of applicants. Although the Fragomen litigation appears to have come to an end, the current economic situation and rising unemployment figures may mean that DOL will continue to look closely at recruitment undertaken in conjunction with a PERM, in order to be satisfied that the recruitment is bona fide and no qualified U.S. worker was found. Clearly, DOL's views on the attorney role continue to be important for practitioners.

20 C.F.R. §656.10(b)(1) provides that employers may have agents or attorneys represent them throughout the labor certification process. In its August 29th Guidance Bulletin, DOL stated that it understands and appreciates the role attorneys play in assisting employers in the process. Nonetheless, the regulations provide a restriction to the assistance. 20 C.F.R. §656.10(b)(2)(ii) states that neither the alien, nor the alien's agent or attorney, may be involved in interviewing and considering U.S. workers for the job opportunity. 20 C.F.R. §656.10(b)(2)(i) states that it is contrary to the best interest of U.S. workers to have the alien and/or attorneys for either the employer or the alien participate in interviewing or considering U.S. workers for the job offered. The employer's agent or attorney may only be involved if he or she is the representative who normally interviews or considers applicants for positions that do not involve labor certification.

While there are still a number of areas where AILA attorneys may differ with DOL's current interpretation, below are some Do's and Don'ts based on the DOL's pleadings and the August 29, 2008 Bulletin.

• Do be prepared for DOL to audit how the employer received and reviewed the resumes if there is any hint this is an issue in the recruitment process. The Carlson Declaration at 20 states that DOL may review evidence, through the audit process, of how the employer received resumes. DOL's standard audit boilerplate does not include any questions about how the employer received the resumes. To avoid any issues concerning how the employer received the resume, it is best if the employer places its own address, website, or HR contacts on all advertising and recruitment. If any of the recruitment directs applicants to send their resumes to any location other than directly to the employer, the employer could be facing an audit asking for an explanation of how the resumes got to the employer.
• Do assist your clients without fear of DOL wrath when they have questions about whether an applicant is unqualified. The Carlson Declaration at 26 said that employers do require legal counsel if they believe U.S. applicants are not qualified. DOL clearly has no concerns about employers consulting with their attorneys when an employer thinks that a U.S. applicant is unqualified: this is "the circumstance in which the employer would be most likely to run afoul of program rules."

There are many situations when an employer's decision that a U.S. applicant is not qualified would not stand up to DOL scrutiny. For example, the employer's appraisal might be contradicted by the applicant's resume; the employer might reject a candidate due to lack of a skill that is not listed as a job requirement; the employer might rely on inappropriate subjective reasons to find a candidate unqualified; the employer might decide that a candidate is not suitable for a job because he or she is overqualified; or the employer might believe that the candidate would not accept the salary before the employer offers the job. Any of these reasons might be fine in recruitment performed in the non-labor certification context, but could derail a labor certification application. DOL now agrees that it is perfectly legitimate for an employer to seek legal advice before deeming a U.S. worker unqualified.

• Given DOL's position on pre-screening resumes for the employer, it may well be a "best practice" for the attorney not to pre-screen. Although some attorneys may have pre-screened resumes for their clients in the past, the Carlson Declaration at 35 said that no one, whether an attorney or not, should screen applications submitted by U.S. workers before those applications are reviewed by the employer's human resource staff, unless that person normally performs the same function for the employer in a non-labor certification hiring. This was reiterated in the August 29, 2008 Guidance Bulletin, which provided that although attorneys may receive resumes and applications of U.S. workers, an attorney may not conduct screening before the employer, other than routine clerical or ministerial organizing of the resumes without assessment or comment on the applicants' qualifications.

An open question is whether the employer may modify its normal screening processes by assigning a dedicated employee to screen resumes in the labor certification process. For example, is it permissible for a Hiring Manager to review resumes initially in lieu of an overworked HR Department, to ensure that no potentially qualified applicants are overlooked and that an applicant's qualifications are scrutinized vis-à-vis labor certification mandates? Reason would say that this practice is acceptable, even though this might be different from a standard HR or recruiting process. DOL did recognize in the August 29, 2008 Guidance Bulletin that the labor certification process imposes recruitment standards that "may deviate from the employer's normal standards of evaluation." This implies an understanding by the DOL that the resume evaluation process in the labor certification context could differ from the employer's normal practices.

• Be wary about the activities of paralegals at the worksite of an employer, acting as an agent of the attorney. DOL was particularly concerned when it learned that the Fragomen law firm had out-stationed employees, generally paralegals, at several of its clients. Carlson Declaration at 31. To avoid arousing suspicion that the attorney or the attorney's agent is impermissibly involved in consideration of U.S. applicants, do not allow out-stationed paralegals to be involved in the pre-screening of resumes for labor certification cases.

• Do continue to impose on the employer the overall requirement of good faith recruitment and evaluation of applicants. The key issue in a labor certification is whether the employer has found a U.S. worker who is qualified, able, willing, and available for the position. To make this evaluation, the employer must recruit and consider in good faith. In order to evaluate whether the employer acted in good faith, DOL will, through an audit and possibly subsequent supervised recruitment, scrutinize the manner in which employer reached its determination that there were no qualified, able, willing, and available U.S. workers. Therefore, throughout the recruitment and evaluation process, it is important to consider constantly whether the actions of the employer can reasonably be judged to have been taken in good faith.

Finally, note that DOL confirmed that the employer is not legally required to hire anyone recruited through labor certification recruitment. The Carlson Declaration at 28 states that it is legally permissible for an employer to conduct labor certification recruitment, find a qualified US worker, and not offer employment to that worker. The employer simply cannot file a labor certification application based on that recruitment. However, the employer may repeat the recruitment at some future time in the hopes that no qualified domestic worker responds. The DOL "agreed" that it is "legally permissible" to give "such advice." While none of us like to see DOL pronouncing what is or is not legally permissible advice by an attorney, it is helpful to see DOL confirm in writing that the labor certification is a test of the labor market and not a hiring program.