On June 2, the US Department of Labor (DOL) announced that it was auditing all PERM applications filed by a major immigration law firm. According to DOL, it had obtained:

information indicating that in at least some cases the firm improperly instructed clients who filed permanent labor certification applications to contact their attorney before hiring apparently qualified U.S. workers. The audits will determine which, if any, applications should be denied or placed into department-supervised recruitment because of improper attorney involvement in the consideration of U.S. worker applicants.

Following this announcement, on June 3, DOL released a follow-up FAQ, in which it provided more details regarding its actions:

The Department's regulations specifically prohibit an employer's immigration attorney or agent from participating in considering the qualifications of U.S. workers who apply for positions for which certification is sought, unless the attorney is normally involved in the employer's routine hiring process. Where an employer does not normally involve immigration attorneys in its hiring process, there is no legitimate reason to consult with immigration attorneys before hiring apparently qualified U.S. workers who have responded to recruitment required by the permanent labor certification program. The Department's rule safeguards against the use of attorneys to find reasons not to hire U.S. workers that the employer would, but for the attorney's involvement, deem qualified. The rule applies only to consideration of particular applicants, and does not bar employers from seeking general advice on the meaning of "qualified" in the context of a labor certification application.

DOL's public statements in this matter are unprecedented, and the American Immigration Lawyers Association (AILA) has issued a letter to DOL, expressing AILA's concerns that with these statements, DOL has presented allegations as fact, prior to any finding of actual wrongdoing. AILA further expressed concern that DOL's actions will interfere with an employer's right to counsel in the labor certification process:

Contrary to the implication in the [material] distributed by DOL yesterday, attorneys are permitted to do more than simply provide general information on the meaning of "qualified". An intrinsic part of the right to counsel is the right to receive advice on the application of the law to specific facts. DOL cannot change this right to counsel, ingrained through decades of practice in the presence of the same regulatory language, via press release.

Jackson & Hertogs shares AILA's concerns regarding the nature of the press statements, and that DOL's interpretation appears to interfere with an employer's legitimate right to counsel and legal advice in this highly complex area of immigration law.

Jackson & Hertogs takes very seriously the regulations governing the PERM recruitment process - and the regulatory prohibitions on attorney involvement in recruitment and consideration of applicants. Jackson & Hertogs regularly advises clients on how to conduct the PERM recruitment process, including what criteria may and may not be used as a lawful basis to reject applicants to the PERM recruitment. This guidance falls squarely within the DOL permitted activities of providing general guidance on the meaning of "qualified" in the labor certification context. However, we do not consult with employers before they hire apparently qualified U.S. workers who have responded to the PERM recruitment efforts, nor do we provide employers with an assessment of whether an individual applicant is or is not qualified for a position - any decision on an applicant's qualifications is made by the employer.

While Jackson & Hertogs has received no audits on PERM applications on this particular issue, we believe that the DOL's recent actions may evidence a new "enforcement-oriented" mindset and skeptical attitude at DOL in examining PERM applications. Generally speaking, PERM audits have been on the rise since late 2007, as DOL cleared the pre-PERM backlog of labor certification cases and became able to shift its full attention to review and scrutiny of PERM filings. More recently, on June 1, 2008, DOL consolidated all PERM processing in its Atlanta National Processing Center. DOL appears to be using this opportunity to focus its efforts on a more rigorous review of PERM cases. DOL has indicated that it has a goal to audit 20 percent of all PERM applications - this action appears to be a first step to meet this goal. This increase in audits is likely to slow processing times for all PERM cases.

Jackson & Hertogs is closely monitoring these developments, and will update clients as more information becomes available.

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