In light of the Fragomen audit, the Department of Labor (DOL) has recently issued many documents on the topic of attorney/agent consideration of U.S. workers under the permanent labor certification program . Attorneys/agents and foreign workers do not have a designated role in the PERM recruitment process. It is the responsibility of the DOL to ensure that no foreign worker obtains a certified labor application based on an employment offer if there are U.S. workers that are able, willing, qualified and available to fill the proffered position. Additionally, an employer must make an attestation that if admitted; the foreign workers will not adversely affect the working conditions of similarly situated U.S. workers.
The purposes of the documents issued by the DOL are to clearly define and regulate the role of an attorney/agent in the consideration of U.S. workers under the PERM program. The DOL has long held the view that good faith recruitment 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 situations, the normal hiring process does not involve a role for an attorney/agent in assessing the qualifications of the applicants. The DOL has clearly specified the types of actions prohibited by attorneys/agents under the regulations, which include: (1) receiving resumes and applications of U.S. workers who respond to the employer’s recruitment efforts; and (2) participation in the interviewing of U.S. worker applicants. However, if the attorney/agent is the representative of the employer who routinely performs this function for positions for which labor certifications are not filed, then the attorney/agent may act accordingly. In addition, the attorney/agent may provide advice throughout the consideration process on any and all legal questions concerning compliance with governing statutes, regulations and policies. It is the sole responsibility of the employer to conduct recruitment in good faith.
If the DOL finds evidence of improper attorney, agent or foreign worker involvement in the recruitment/consideration process, the DOL will audit and may subsequently require supervised recruitment to further investigate the employer’s recruitment efforts or potential debarment from immigration related programs.