After sixteen years, the U.S. Department of Labor (DOL) proposed
a new PERM Form in the Federal Register. Employers,
foreign workers, attorneys, agents, and preparers may be parties to
a PERM application and are required to sign the form. Regrettably,
both the old and new forms fail to distinguish between the roles
played by agents and attorneys.
One peculiarity of the PERM Rule is that attorneys and agents
are treated equally. Both can represent clients before the agency,
because DOL does not limit representation to licensed attorneys.
DOL does not have a specific type of notice for attorneys at law to
declare their representation of a client.
DOL permits any person – physical or corporate, domestic, or
foreign – to represent employers throughout the PERM process and to
collect fees for their assistance. DOL does not question the
qualifications of non-attorneys who may engage in the unlawful
practice of law. If a person identified as an attorney is
guilty of misfeasance such as misrepresentation or fraud, however,
he or she will be 'disbarred' from acting as attorney or
agent for PERM applications.
According to the PERM Rule, agents are authorized to receive and
respond to communications from DOL, while attorneys are persons who
provide legal advice to employers but who may also act
simultaneously as their agents. Both the old and new PERM forms
treat agents and attorneys as one, so that there is no way to
determine on the face of the form if the attorney is acting solely
as an agent or as an attorney at law.
The attorney or agent's role is vital, since all
correspondence to and from DOL will go to the attorney/agent at the
physical or email address provided on the form. Attorney/agents
need to communicate with employers in order to forward
correspondence that may allow as few as fifteen days to
respond. On many occasions attorney/agents also ensure that
employers do not fail to provide information or documents requested
from DOL as a result of not seeing incoming emails or hard copies
delivered by mail. Electronic disputes are common, as emails often
go to junk mail folders. DOL uses forensic technicians to prove
that they have sent mail to employers on specific dates or to prove
that the employer received no mail.
Attorneys and agents may not interview US workers for job
opportunities unless they are employees who normally perform those
job duties. Employers take full responsibility for the
accuracy of any representations made by their attorneys or agents.
In signing the PERM form, employers acknowledge that to furnish
false information knowingly in the preparation of the application
form and any supplement thereto or to aid, abet, or counsel another
to do so is a federal offense punishable by a fine or imprisonment
up to five years or both under 18 U.S.C. §§ 2 and
Although the role of attorneys is trivialized by DOL, most
employers require substantial assistance from attorneys to
comprehend the complex regulations, recruitment procedures and
filing instructions for successful completion of a PERM
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.