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Bloggings On PERM Labor Certification

by Joel Stewart

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

June 08, 2009

About PERM Disbarment

The original PERM Rule included a provision for disbarment, which stated that disbarment would occur for purposes of PERM if a person was disbarred elsewhere, by another government organ, but PERM itself had no mechanism for disbarment.

 

The original Rule stated, "No person under suspension or disbarment from practice before any court or before the DHS or the United States Department of Justice's Executive Office for Immigration Review is permitted to act as an agent, representative or attorney for an employer and or alien under this part.

The original Rule went on to define the term Attorney. "Attorney means any person who is a member in good standing of the bar of the highest court of any state, possession, territory, or commonwealth of the United States, or the District of Columbia, and who is not under suspension or disbarment from practice before any court or before DHS or the United States Department of Justice's Executive Office for Immigration Review. Such a person is permitted to act as an agent, representative, or attorney for an employer and/or alien under this part.

Later, the PERM Rule was amended to include a new provision for disbarment by the PERM authorities. The PERM Rule now includes the following section on debarment:

Debarment: No later than six years after the date of filing of the labor certification application that is the basis for the finding, or if such basis requires a pattern or practice as provided in paragraphs (f)(l)(iii), (iv) and (v) of this section, no later than six years after the date of filing of the last last labor certification application which constitutes a part of the pattern or practice, the Administrator, Office of Foreign Labor Certification, may issue to an employer, attorney or any combination thereof a Notice of Debarment from the permanent labor certification program for a reasonable period of no more than three years, based upon any action that was prohibited at the time the action occurred, upon determining the employer, attorney, or agent has participated in or facilitated one or more of the following: (i) The sale, barter, or purchase of permanent labor applications or certifications, or any other action prohibited under Sec. 656.12; (ii) The willful provision or willful assistance in the provision of false or inaccurate information in applying for permanent labor certification; (iii) A pattern or practice of a failure to comply with the terms of the Form ETA 9089 or Form ETA 750; (iv) A pattern or practice of failure to comply in the audit process pursuant to Sec. 656.20; (v) A pattern or practice of failure to comply in the supervised recruitment process pursuant to Sec. 656.21; or (vi) Conduct resulting in a determination by a court, DHS, or the Department of State of fraud or willful misrepresentation involving a permanent labor certification application, as referenced in Sec. 656.31(e). (2) The Notice of Debarment shall be in writing, shall state the reason for the debarment finding, including a detailed explanation of how the employer, attorney or agent has participated in or facilitated one or more of the actions listed in paragraphs (f)(1)(i) through (v) of this section; shall state the start date and term of the debarment; and shall identify appeal opportunities under Sec. 656.26. The debarment shall take effect on the start date identified in the Notice of Debarment unless a request for review is filed within the time permitted by Sec. 656.26. DOL will notify DHS and the Department of State regarding any Notice of Debarment.

The regulation contains vague references that will need to be more clearly defined, however, for the time being there is only one debarment on the DOL debarment list, a hapless software company that conducted tests of its software reliability by filing hypothetical applications with DOL. This debarment does not appear to include the element of mens rea, since the company was just trying to practice with the system, and they perceived that the only way to do this was by filing test applications, or in other words, seasoning the soup until it was ready for consumption.

Note that the Debarment regulation applies to the entire PERM process and includes actions taken with the state workforce agencies as well as the federal department of labor.