Alarming Trend in Labor Certification Processing

There is an alarming trend in the processing of labor certification applications under the Program Electronic Review Management (PERM) system.

On July 8, 2008, the U.S. Department of Labor (DOL) initiated supervised recruitment for pending labor certification cases filed by Cohen and Grigsby, a Pittsburgh-based law firm.

A month earlier, the DOL had announced the audit of all the permanent labor certification applications filed by the nation’s largest immigration law firm Fragomen, Del Rey, Bernsen and Loewy, LLP.

In taking these actions against these big law firms, the DOL claimed that during its routine audits, they discovered indications that the employer-clients were improperly instructed to contact the lawyers first if a U.S. job applicant appeared potentially qualified for the job opening during the recruitment process.

The DOL has also debarred the LawLogix Group Inc., a California-based software company for “willfully providing false or inaccurate information” and “failing to comply” with the terms of the application. It determined that the company did not exercise good faith when it filed more than 100 applications for the sole purpose of testing the department’s PERM electronic processing system. The debarment is in effect for three years.

PERM labor certification is a complicated process. It is required as a preliminary step in filing most employment-based (EB-2 and EB-3) immigration petitions to secure green cards. During this process, the employer must show that it has tested the U.S. market in good faith and that there are no willing and qualified U.S. workers to fill the offered position.

The labor market must be tested in a manner that is open, fair and not biased.

The DOL routinely audits cases for compliance with these regulations. Normally, if the recruitment and selection process is satisfactory, the case is certified and the employer can proceed with the green card petition for the alien worker. When the DOL has concerns that the employer has not properly recruited or considered U.S. applicants for the available position, it will institute a supervised recruitment.

Supervised recruitment requires the employer to receive prior approval from the DOL before undertaking mandatory recruitment steps. The timing and draft of the advertisement have to be approved and all resumes of job applicants have to be sent directly to the DOL. The employer has to contact the applicants referred by the DOL in a timely manner and submit a recruitment report to the DOL. Lawyers are prohibited from participating in the consideration of the qualifications of the U.S. job applicants, unless they are normally involved in the employer’s routine hiring process.

According to the DOL, the tightening of the DOL oversight of the PERM labor certification process is an effort “to safeguard the integrity of the process and to protect job opportunities for American workers” so that they are fairly considered for job openings.

In a letter criticizing the DOL action and supporting the Fragomen law firm, the American Immigration Lawyers Association (AILA) contended that employers have the right to seek legal counsel during the PERM recruitment considering that this is a highly complex process governed by detailed regulations and complicated laws. They added that immigration lawyers traditionally participated in guiding their clients during the labor certification process even prior to the implementation of the PERM. They assert that this is a permissible rendering of legal advice and not an “improper attorney participation” as declared by the DOL.

Despite the spate of audits, supervised recruitments and sanctions undertaken by the DOL, employers need not shy away from sponsoring qualified alien workers for PERM labor certification, as long as they fully comply with the DOL’s good faith recruitment requirements, file proper PERM applications and keep detailed documentation of the recruitment and reporting requirements.