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Bloggings: June 11, 2008

by Joel Setwart

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

DOL Should Revisit the Attorney's Role in PERM

DOL has worked hard to create PERM, a streamlined process to apply for labor certification and is rightfully attempting to maintain integrity in the system, however, the do's and dont's of attorney participation in the PERM process need to be reviewed to determine a proper balance between right and wrong.

The PERM rule states, "The alien and/or the alien's agent and/or attorney may not interview or consider U.S. workers for the job offered to the alien, unless the agent and/or attorney is the employer's representative [who normally interviews or considers, on behalf of the employer, applicants for job opportunities such as that offered the alien, but which do not involve labor certifications.]" The section prohibits only interviewing or considering U.S. workers. It does not prohibit representation of the employer throughout the rest of the process. On the contrary, attorneys need to be involved in numerous ways, as long as they do not violate the prohibition to "consider" U.S. workers.

It appears that attorneys should assist their clients to review labor certification applications in their entirety, including analysis of the proposed job offer, comparison with DOL data on the O*Net, application for prevailing wage & review of legality of job offer with respect to federal, state and local law; advise employers on methods of notice & recruitment to comply with the PERM rule, including intricate rules and policy statements found in the PERM Rule, Frequently Asked Questions, Liaison Minutes, Stakeholder Statements, General Administrative Letters, warnings regarding typographical errors and computer glitches, and other official memoranda which may have the force of law. (See HealthAmerica, 2006-PER-1, July 18, 2006); Advise on the process of contacting U.S. workers, a process that requires regular, systematic and specific contact with workers that is not normal in most industries, such as combinations of telephone calls, certified letters, e-mails, telegrams and/or courier deliveries, and which imposes unusual burdens of proof, such as reasonable time frames to respond to workers (generally less than 14 days), documentation that must or should be requested (including when and how they may be requested), responsibility to inquire beyond the face of the resume, to determine whether a worker appears qualified by a combination of education, experience or training, to obtain references from third parties, and maintain of extensive documentation in case of an audit; Review of workers and their qualifications may impact on the wage offer.

The rules surrounding wage offers and ranges are extremely complicated, depending on the prevailing wage, the date the alien was hired (if already in the position), the current salary offer (which may be higher than the prevailing wage), and the possibility of earning a wage higher than the entry level wage based on years of service. The attorney would also determine whether the SWA selected the correct SOC code (and according to some observers, whether the code selected by the SWA has any legal effect on the PERM application), whether the OES wage is correct, up-to-date and properly applied, whether another method of determining prevailing wage may or should be used, whether the ambiguous standards for determining PW were properly applied by the SWA, including the proper application of Appendix A for Professional Positions, the proper use of the "worksheet" for adding points for licenses, supervision, foreign language or other special requirements, and interpretation and application of the guidelines for four wage levels, from entry level to fully trained.

Employers have to follow strict rules to determine qualifications of workers, including whether they are legal U.S workers, meet the minimum requirements, and are able, willing, qualified and available. Each of these words are terms of art that have special legal meaning. Decisions made by employers must meet requirements for objectivity under BALCA, whether tests and methods of evaluation are acceptable and fair, when and how the employer may contact the workers after the interview, whether the employer may ask the worker to provide references, and how to prepare the results of recruitment report to be retained for five years.

DOL decisions, including pre-PERM decisions by BALCA, regarding attorney involvement have not acknowledged the simple fact that attorneys must and should represent their clients throughout the labor certification process (except for the fact that attorneys may not consider or interview U.S. workers). Now is a good time for stakeholders to discuss these issues with DOL.