PERM: Employers, Representatives, And Agents
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.