DOL issued an FAQ this week offering much needed guidance for attorneys in PERM processing, where an ethical balance must be achieved among the Employer, Attorney and DOL regarding the attorney's scope of representation.
Spurred by concerns of attorney participation in the consideration of job applicants, DOL stated that DOL dos not prohibit attorneys and agents from performing analyses to counsel their clients on legal questions that may arise. The employer, not the attorney, must determine whether a U.S. applicant's credentials meet the minimum qualifications for the position, unless the attorney or agent is the representative of the employer who routinely performs this function.
After an employer evaluates a U.S. worker and concludes that the worker is unqualified, the employer may seek the advice of its attorney to ensure that its reasons for rejecting the U.S. worker are lawful, and the attorney or agent may review the qualifications of the U.S. worker to the extent necessary to provide that advice. By contrast, if an employer evaluates a U.S. worker and determines that the worker is minimally qualified, the attorney may not thereafter consider the applicant's qualifications and attempt to substitute his or her own judgment for that of the employer. An employer's determination that a U.S. worker is minimally qualified for a position constitutes clear evidence that there are U.S. workers who are able, willing, qualified and available for the work to be undertaken.
Attorneys and agents may receive resumes and applications from U.S. workers who respond to recruitment efforts, however, they may not conduct any preliminary screening of applications before the employer does. The attorney may not withhold from the employer any resumes or application received from U.S. workers.
After the evaluation of applications by the employer has been completed, the employer may consult with its attorney about the implications of its qualification determinations on the labor certification application. Employers may ask attorneys their opinions whether workers were rejected for lawful, job related reasons. Attorneys may not dissuade employers from initial decisions on minimal qualifications.
If DOL finds evidence of potentially improper consideration of U.S. worker applicants, the Department may audit applications to determine whether recruitment was done in good faith. The DOL does not distinguish between attorneys and agents, believing that agents, as well as attorneys, may provide legal advice to employers.
The FAQ reiterates the long standing rule that attorneys and agents may not participate in the interviewing of U.S. worker applicants, unless the attorney or agent is the representative of the employer who routinely performs this function for positions for which labor certifications are not filed. DOL stated, "Such involvement, because of its uniqueness, has resulted in an impermissible "chilling effect" on the interests of U.S. worker-applicants in the position.
The FAQ does not change this long-standing rule but clarifies that audits are appropriate to inquire into possible bad faith recruitment and upholds the attorney's role in advising employers about applicants whom they have determined are minimally qualified. Practitioners should set up a system where employers may consider job applicants, using the minimal requirements stated on the PERM application, and then forward the results for additional legal analysis. Such analysis might include whether an applicants is a U.S. Worker (a legal definition and term of art), whether the employer has a duty to inquire further to determine qualifications, how to interpret the Kellogg rule, how to define the rule requiring on-the-job-training, how to analyze experience, education and training in lieu of stated requirements, and legal implications of follow-up contact regarding references, diplomas, and further documentation. DOL has strict legal rules these and other issues.