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.