The Role of the Attorney in the PERM Process After the Fragomen Settlement

Since the Department of Labor (DOL) issued a press release in June 2008 announcing it was auditing all of the PERM labor certification applications filed by the Fragomen law firm there has been much confusion for attorneys in regards to the PERM process. While there are still a number of areas left questionable, below are some Do’s and Don’ts based on the DOL’s pleadings.

• Do be prepared for DOL to audit how the employer received and reviewed the resumes if there is any hint this is an issue in the recruitment process.

• Do assist your clients without fear of DOL wrath when they have questions about whether an applicant is unqualified.

• Given DOL’s position on pre-screening resumes for the employer, it may well be a “best practice” for the attorney not to pre-screen.

• Be wary about the activities of paralegals at the worksite of an employer, acting as an agent of the attorney.

• Do continue to impose on the employer the overall requirement of good faith recruitment and evaluation of applicants.

It is important to note that the DOL confirmed in writing that the employer is not legally required to hire anyone recruited through labor certification recruitment. In other words, the labor certification is a test of the labor market and not a hiring program.