In a recent communication from the Department of Labor regarding the role of the attorney in the PERM, Labor Certification process seems to be a reversal of prior recent policy on this matter. The Department of Labor outlined that in disposing of its responsibility for ensuring that no foreign worker is admitted for permanent residence based upon an offer of employment absent a finding that there are not sufficient U.S. workers who are able, willing, qualified and available for the work to be undertaken, it is outlining what attorneys can an can not do during the PERM process. The DOL stressed that employers must be able to show that the admission of foreign works will not adversely affect the wages and working conditions of U.S. workers similarly employed. 8. U.S.C. 1182(a)(5)(A)(i). The Department relies on employers filing labor certification applications to recruit and consider U.S. workers in good faith.

This good faith requirement requires that an employer's process for considering U.S. workers who respond to certification-related recruitment closely resemble the employer's normal consideration process. In most cases, that normal hiring process does not involve a role for an attorney or agent. However, since the permanent labor certification program imposes recruitment standards that may deviate from the employer's normal process, the advice of an attorney may be necessary to ensure compliance. Thus, attorneys and agents are frequently involved in the process.

An attorney or agent must take care to not exceed the scope of permissible activity. Specifically, an attorney or agent cannot interview or consider U.S. workers during the labor certification process, unless he or she is the person who normally interviews or considers, on behalf of the employer, when labor certification is not involved. 20 C.F.R. 656.10(b)(2)(i) and (ii). This section also prohibits an attorney from preliminary screening applications before the employer does so, and withholding resumes or applications from the employer.

If the Department of Labor finds evidence of potentially improper attorney, agent, or foreign worker involvement in considering U.S. worker applicants, the Department will audit, and may subsequently require supervised recruitment, for those applications to determine whether the employer's recruitment and hiring processes were conducted in good faith and to ensure adherence to all statutory and regulatory requirements.

For more information, go to http://www.foreignlaborcert.doleta.gov/pdf/PERM_Guidance_Final_082908.pdf.