Last week I reported on the July 16, 2008, temporary agreement between a major immigration law firm and the Department of Labor. The agreement contained stipulations regarding the role attorneys play in the recruitment procedure associated with PERM. This week, I will continue to analyze the attorneys role in PERM, based on the October 24, 2008, permanent settlement agreement between those same parties.
The temporary agreement in July stated that "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 process." The agreement adds, "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."
By contrast, the temporary agreement stated, "if an employer evaluates a U.S. worker and determines that the worker is minimally qualified, the attorney agent, or foreign worker may not thereafter consider the applicants' qualifications and attempt to substitute his or her own judgment for that of the employer."
The final agreement incorporates much of the temporary agreement, but states the following:
"employers may have agents or attorneys represent them throughout the labor certification process."
The employer, and not the attorney or agent must be the first to review applications for employment and determine whether job applicants' qualifications meet the minimum requirements for the position....."
Attorneys may, however, provide advice throughout the consideration process on any and all legal questions concerning compliance with governing statutes, regulations, and policies.This may include advice concerning requirements relating to whether an applicant is qualified, willing, able, and available U.S. worker, and the fact that such advice was south and/or given shall not itself be regarded as a bad faith deviation from the normal recruiting procedures followed by the employer for positions not involving a labor certification.
The conclusion to be drawn from the temporary and final agreements is that employers must be the first ones to review the requirements of job applicants and make a preliminary determination whether they appear qualified. This requirement logically places the burden on the employer to review all the applicants' qualifications and determine whether they are minimally qualified based on the requirements for the job as described on the PERM Form 9089. At this stage, attorneys should only forward resumes to employers and/or organize them for transmittal to employers.
Also true is the fact that Employers may then confer with attorneys regarding any legal points related to the determination of qualifications. Simply stated, employers determine the facts by reviewing the resumes and interviewing the job applicants, and attorneys review the law, and explain to the employer how to apply the law to the facts.
Unfortunately, there is often a gray line between fact and law. This occurs where there is a question which is mixed fact and law. When a question arises that is mixed fact and law, the employer can not determine the factual question without the intervention of the attorney to explain the legal ramifications.
A mixed question of fact and law might be one where the applicant's resume is not 100% clear whether the applicant is qualified for the job, and the employer might be required (as a matter of law) to inquire further to make a determination instead of relying on the face of the resume. For example, if a job requires a degree in biology, and the applicant does not have a degree in biology but does have 20 years experience performing the duties of a biologist, the DOL might take the position that the Employer cannot disqualify the job applicant on the basis of the fact that the resume does not show a Bachelor's Degree. Instead, the DOL would argue that the Employer must inquire further, by contacting the job applicant personally, by phone or by an in-person interview, to determine whether the 20 years experience might be deemed equivalent to a Bachelor's Degree. The DOL would conclude that the applicant might be able to perform the job duties, despite the fact that he or she does not have a bachelor's degree, based on many years experience performing those job duties. The determination of the applicant's qualifications requires the fact-finder (employer) to use legal guidelines during the probe for information. The factual question would be whether the applicant can perform the job duties based on experience alone, and the legal question would be whether the attainment of a bachelor's degree in itself is a valid legal requirement for that particular job, making further investigation of the applicant's qualifications unnecessary. The two questions cannot be separated but must be seen as one question, one issue to be resolved by using fact-finding and legal opinions at the same time.
The stated agreements are a valuable tool for stakeholders in the PERM process, because the DOL has publicly agreed that there is some level of attorney participation to determine legal issues, provided that the employer makes the initial determination of applicants' qualifications. This public acknowedgement of the attorney role in recruitment provides protection to the integrity of the PERM process, because the DOL can be assured that in the first instance, the Employers were the first ones to review the applicants, not the attorneys, and that the attorneys entered only reviewed the overall conclusions of the employers, to apply questions of law as well as mixed questions of law and fact.
Perhaps a better example of unsettled issues involving questions of law and fact is the large body of BALCA law where the ALJ panels have previously found improper attorney involvement merely because the attorneys were performing their duties and responsibilities to clients. One BALCA case even held that the attorney overstepped permissible bounds by supervising the complex procedure used to contact US workers, which requires the use of certified mail, return receipt requested. The documentation requirements do not end there. The Employer must keep a careful log, with all attempts to call the applicant, the numbers used to call, the dates and times of day, the name of the person and relationship to the applicant of the person who answered the phone, if any. Then, if certified mail was used to supplement phone calls, the employer must be able to determine not only that it sent a certified letter and that it was received and signed for, but that the letter was signed for by the applicant, and not by the applicant's room-mate, spouse or significant other.`
The message to employers and attorneys is that they should continue with caution. The clarification of the attorney's role has only begun and will be fleshed out in future cases and controversies.