FGI News and Publications

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.