Fragomen Files Lawsuit Against DOL Over Special Audit; DOL Releases Guidance
On August 8, 2008, Fragomen, Del Rey, Bernsen & Loewy, LLP (Fragomen) filed a lawsuit in federal district court in Washington, D.C., seeking an injunction against the U.S. Department of Labor’s (DOL’s) special audit of labor certification applications filed by the firm.
Fragomen said it believes that “it was necessary to file a lawsuit because DOL’s actions have been unlawful and unconstitutional. The Department has sought to deny our clients’ right to counsel under the Constitution, and is retroactively applying a new interpretation of its own regulations.”
The firm has moved for a preliminary injunction that would prevent the DOL from enforcing its new interpretation of the law and has asked the court to order the agency to abide by its own regulations and the Constitution. The relief requested includes an order cancelling the special audit component of pending PERM cases so that those cases could return to the regular review queue.
The Department of Labor posted on its Web site related guidance released in June regarding labor certifications. A new “restatement” issued on August 29, 2008, supersedes the earlier guidance in response to the agency’s receipt of “considerable feedback” from employers. The earlier guidance noted, among other things, that:
Where the Department finds evidence of potentially improper attorney, agent, or foreign worker involvement in considering U.S. worker applicants, the Department may audit applications to determine whether the employer’ recruitment and hiring processes were conducted in good faith and to ensure adherence to all statutory and regulatory requirements.
The earlier guidance outlined (PDF) the following prohibitions:
- Attorneys and agents may receive resumes and applications from U.S. workers who respond to the employer’s recruitment efforts. They may not conduct any preliminary screening of applications before the employer does so, however, 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. The attorney or agent may not withhold from the employer any resumes or applications that it receives from U.S. workers.
- 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. Such involvement, because of its uniqueness, has resulted in an impermissible “chilling effect” on the interests of U.S. worker-applicants in the position.
- After the evaluation of applications by the employer has been completed, the employer may consult with its attorney or agent about the implications of its qualification determinations on the labor certification application. Those consultations can encompass the question of whether applicants who were found by the employer to be unqualified were rejected for lawful, job-related reasons. Under no circumstances, however, should an attorney or agent seek to dissuade an employer from its initial determination that a particular applicant is minimally qualified, able, willing and available for the position in question.
The August 29 restatement notes that:
- [G]iven that the permanent labor certification program imposes recruitment standards on the employer that may deviate from the employer’s normal standards of evaluation, the Department understands and appreciates the legitimate role attorneys and agents play in the permanent labor certification process. Additionally, the Department respects the right of employers to consult with their attorney(s) or agent(s) during that process to ensure that they are complying with all applicable legal requirements.
- By prohibiting attorneys, agents, and foreign workers from interviewing and considering U.S. workers during the permanent labor certification process,…the Department does not thereby prohibit attorneys and agents from performing the analyses necessary to counsel their clients on legal questions that may arise with respect to this process. The employer, and not the attorney or agent, must be the first to review an application for employment, and must determine whether a U.S. applicant’s qualifications meet the minimum requirements for the position, 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. By requiring that initial reviews of and final determinations on all applications are made by the employer, the Department seeks to ensure that the consideration process is as close to the employer’s non-immigration-related hiring process as possible and that U.S. workers receive full and fair consideration by the employer for the job. Attorneys (and, to the extent it is consistent with state rules governing the practice of law, agents) may, however, provide advice throughout the consideration process on any and all legal questions concerning compliance with governing statutes, regulations, and policies.
The August 29 restatement (PDF) notes that where the Department finds evidence of “potentially improper” attorney, agent, or foreign worker involvement in considering U.S. worker applicants, the Department will audit those applications and subsequently may require supervised recruitment.