Some employers have learned the hard way that the role of

representatives and attorneys is clearly separated in the PERM Rule

and that violation of that rule may result in harsh

consequences.

Employers are required to be totally involved in the recruitment

process of their PERM applications. Their attorneys cannot review

resumes, interview applicants, or take responsibility for rejection

of workers by signing recruitment reports. However,

representatives, if properly identified on the PERM form as persons

who work directly for the employer, are permitted to assist in or

conduct recruitment.

The prohibition against attorneys also applies to agents –

the latter being persons who are authorized to receive

correspondence and respond to DOL notices of audit, requests for

information, or notification of reconsideration or appeal.

Another peculiarity of the attorney/agent paradigm is that

foreign persons, including attorneys and agents, may sometimes act

as attorneys without violating the PERM regulation.

The Department of Labor has not issued regulations to determine

who may provide legal advice in the federal matter of labor

certification proceedings, as has its sister agency, the USCIS, in

immigration matters. Because each state defines the practice of

law, agents may or may not be authorized in some states to perform

duties that are tantamount to the practice of law.

The Board of Alien Labor Certification Appeals and the Office of

Foreign Labor Certification, branches of the US Department of

Labor, have vigorously defended the integrity of consideration of

US workers and their resumes by only permitting employers to engage

in these tasks and never those who may have an interest in

obtaining approvals rather than fairly evaluating job

applicants.

Violators will find their PERM applications denied or worse, as

there are several strategies to 'punish' employers who act

in bad faith. DOL can flat out deny applications, determine that

employers submit to supervised recruitment, a very strict DOL

scrutiny of the job search, or 'debar' employers and their

attorneys or agents for wrongdoing. After debarring, employers may

be prevented from filing PERM applications. Moreover, if there is

actual fraud or misrepresentation, criminal proceedings can be

commenced.

While employers usually get censured together with their

overreaching attorneys or agents, there are BALCA cases which held

in favor of employers whose cases ran afoul of the regulations

because they were victimized by attorneys or agents whose conduct

resulted in an outcome that is 'manifestly unjust' to the

employers.

Employers should take a close look at their relationships with

attorneys and agents to make certain that they do not participate

in PERM recruitment procedures. If there is any indication that

consideration of US workers is likely to be influenced by attorneys

or agents, then company procedures should be revised to conform to

the legal and ethical requirements of the law.

The content of this article is intended to provide a general

guide to the subject matter. Specialist advice should be sought

about your specific circumstances.

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