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Bloggings: July 02, 2008

by Joel Stewart

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

DOL Instruction to Attorneys

I'm sure the readers of this Blog know that most of the nation's immigration lawyers went to attend the AILA Conference in Vancouver, BC. While at the conference, many of the lawyers there were concerned about the recent instructions from DOL regarding the attorney's role in the labor certification process under PERM.

In a recent memorandum, the DOL clarified some points about attorney involvement in the process, but other points unclarified.

First, DOL stated that attorneys may receive resumes from job applicant referrals, however, the opinion does not state whether the resumes may be received directly or indirectly. Under GAL 1-98, DOL issued a statement to the then-SWA specialists regarding resumes received from workers. The GAL ordered the SWAs to discard all resumes of persons who appeared unqualified and to send the remaining resumes to the attorney. It is important to note that the workers, of course, had replied to the address of the SWA, and the SWA had acted as an intermediary to send the resumes to the attorneys. While attorneys may need to assist emploeyrs to maintain a complete and accurate list of referrals, and a documented time-line to show when and how workers were contacted, the DOL has often ruled that workers should not be discouraged from applying for any reason. Any and all actions should be carefully planned so as not to have a chilling effect on the workers. Therefore, employers should arrange for a more appropriate manner for attorneys to receive workers' resumes. For example, resumes could be sent to the Employer's address or to a special P.O. Box or Fax number. Presumably the attorney may assist to set up the P.O. Box or Fax number.  DOL needs to clarify whether resumes may be sent to a P.O. Box or Fax number under the control of the attorney. Receipt of resumes through a PO Box or Fax number assists the employer to treat referrals fairly. The attorney's role can monitor the date of receipt of each resume, the prompt contact with the workers by the employer, and the full content of the resume letters, including cover sheets, if any. The DOL requires minute attention to these details. Some lawyers have indicated that there may be nothing new in this opinion, i.e., receipt of resumes by attorneys, however, prior to GAL 98-1 (only the old-timers will remember), there was great controversy about this in some parts of the country, and some BALCA decisions held that attorneys should not have a role in the receipt and organization of resumes.

Second, DOL reiterated that attorneys may not interview US workers or consider US workers, unless it is their normal job to do so. I think everyone understands and agrees with this rule.

Third, DOL has stated that attorneys may review resumes of clients that the employer has found unqualified. The purpose of attorney oversight would be to determine if the employer disqualified any workers improperly and in error. For example, some employers in actuality will reject workers who are overqualified, while in the labor certification program this is impermissible. What the DOL did not clarify, however, is whether attorneys may review resumes of qualified workers to determine if the workers are legally qualified. This appears to be proper, since some workers are not legally qualified. For example, referrals who do not meet the PERM definition of US workers (citizens, residents, asylees, refugees and amnesty applicants) should be considered unqualified. This would occur if a worker has a temporary work permit, like an EAD through an application for adjustment or any kind of temporary work visa. To me, the DOL did clarify, indirectly, the attorney's role in considering whether US workers are qualified. The DOL maintains that only Employers may determine minimal qualifications. This would include consideration whether a worker possesses sufficient education, experience and training, and whether a worker might be trained in a reasonable period of time to work in the employer's environment. Aside from this, there are many other issues for attorneys to review summaries of qualified applicants, such as work status in the U.S., questions of unavailability, and other legal considerations that include issues of labor and employment law.

In summary, the recent DOL opinion has gone a long way to clarify the attorney's role in the recruitment process. The main point is that attorneys should not dissuade employers from hiring US workers whom the employers consider to be minimally qualified. This being the case, attorneys should proceed with caution so as not to do anything that may chill US workers in their job searches or to dissuade or influence employers from not hiring otherwise qualified applicants.