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Bloggings: December 12, 2007

by Joel Stewart

Editor's note: Here are the latest entries from Joel Stewart's blog.

December 11, 2007

Attorney's Role: Lawyer or Scribe?

The issue of attorney fees (by now everyone knows that aliens cannot pay their employers'  attorney fees for PERM) is a source of great confusion, because the role of the attorney has been turned upside down by the PERM Rule.

Prior to the PERM rule, applications for labor certification required the signature of the employer and the alien. Both the employer and the alien could appoint an agent. Furthermore, if an attorney was involved, the attorney had to provide from G-28 signed by the parties whom he represented. Some attorneys opted to be agent and attorney, thus obfuscating the difference between the two.

The role of agent can be defined in different ways (by Common Law, Statute, Regulations, etc.), but under the PERM Rule the agent is defined as the one who receives correspondence from the DOL. This appears to be the only function of the agent. In addition, in Item " M " the person who completed or prepared the application is named, although the Employer takes responsibility for the person named in item " M ".

The line between representation and agency is not fully clarified in PERM process, and the role of the attorney who represents the employer and/or the alien is compromised, because one can not determine what actions constitute legal representation or even what actions constitute agency. Viewed against the background of the PERM rule's prohibition on attorney representation of alien and employer, the distinctions become essential to practice in this field.

The PERM Rule prohibits the attorney for the alien to take any action to prepare, process or file and application on behalf of the Employer, unless the Employer pays the fees for himself and for the alien. If the alien pays the fees, the Employer for he alien may not take any of these actions. The Rule says that the attorney may represent the alien, so long as the attorney does not have anything to do with preparing processing or filing the application for the Employer.

The fuzzy line in these definitions leaves the parties without any reliable guidance how to proceed. For example, I recently encountered a case where an educational institutional authorized an employee to seek her own attorney. According to the institution, the employee/alien could not be represented by the University, only by her own lawyer. A lawyer was selected, and the institution required the lawyer to accept the rules and regulations of the university. The lawyer was then authorized by the university to represent the alien. So far, it appears that the lawyer represents the alien and not the employer....

After representation of the alien was established, the institution sent the job requirements and job description to the alien's attorney. The alien's attorney filled out a PERM form, typing into the form the information about the job opportunity provided by the institution as well as the alien's qulaifications, however, the parts of the form regarding the institution itself were filled in by the institution, and not by the alien's attorney.

Although the alien's attorney filled in a rought draft of the form, the institution then changed the form to suit itself, without conferring with the alien's attorney. Items that were changed included language in the posting, 30-day job order and advertisements. The institution then proceeded to orchestrate the entire recruitment process, again, without any communication or intervention by the alien's attorney.

At the day's end, the institution then required the alien's attorney to be listed as agent and prepare on the form, although the alien's attorney had nothing to do with the preparation of the form other than to act as a scribe for the institution.

Is this prohibited by the PERM Rule? May an attorney act as agent and preparer to an Employer and be paid by the alien? Does the rule bar only legal representation or even representation as scribe? It appears that the alien's attorney really did nothing to further this PERM case except to act on instructions received from the Institution. By the way, the Institution has its own attorneys who are overseeing this.

One can see from the above example that if the Employer has its own attorney, and the alien her own attorney, and the Employer is responsible for filing the PERM application, determining the minimum requirements, conducting the recruitment, and overseeing the finalization and completion of the form, there is virtually nothing left for the alien's attorney to do as attorney, except to act as agent or scribe for the Employer's attorney. In this regard, the PERM rule goes to far, and the role as attorney for the alien is then relegated to a fiction.