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 1001.
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 application.
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.
