Joel Stewart on PERM Labor Certification
PERM: Manifest Injustice
The doctrine of manifest injustice has been historically invoked by the Board of Alien Labor Certification Appeals where employers suffered egregious malfeasance when represented by non-lawyers.
Consider a case in which the employer may have been the victim of the unauthorized practice of law, with its application for certification riddled with extensive defects wholly attributable to the agent's incompetent execution of the recruitment period and preparation of the Form 9089.
PERM regulations and recent BALCA decisions do not permit correction of errors which were caused by the Employer (or Employer's agent).
Under the Federal Administration Procedures Act, each federal agency has the power to permit and regulate lay representation in its proceedings. Acting on that power, the U.S. Department of Labor implemented the PERM Rule permitting the employer to be represented by an agent, representative, or attorney. 20 C.F.R. § 656.10(b)(1).
What the U.S. Department of Labor has not done is to regulate lay representation. While attorneys, who must be professionals licensed to practice law in a particular state, are regulated by State Bar Associations, agents and representatives, who are non-lawyers, have no regulation whatsoever.
Neither the regulations of the U.S. Department of Labor nor the PERM Rule provides any standards of conduct for agents and representatives. Indeed, the PERM Rule contains exactly one reference to a standard of conduct for the attorney, agent, or representative in a PERM case:
"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." 20 C.F.R. § 656.10(b)(3).
The PERM Rule provides no advisory to the public about the complexity of the Application for Alien Employment Certification. In fact, the Preamble states plainly:
"Attorney representation is not necessary to file an Application for Permanent Employment Certification." (Labor Certification for the Permanent Employment of Aliens in the United States; Implementation of New System; Final Rule, 69 Fed. Reg. 247 at 77375 (Dec. 27, 2004)).
The Preamble presents a discussion of agent, representative, and attorney as though the three different types of representation are interchangeable, with the agent and representative, who are subject to no educational or ethical standards, indistinguishable from an attorney. See Labor Certification for the Permanent Employment of Aliens in the United States; Implementation of New System; Final Rule, 69 Fed. Reg. 247 at 77336-7 (Dec. 27, 2004).
On the other hand, it is beyond dispute that representation of an employer in a PERM application is the practice of law inasmuch as it consists of exactly those activities which traditionally have been the sum and substance of the practice of law, namely, preparing legal documents, rendering advice regarding one's legal rights and responsibilities, and representation of others in legal proceedings. By its disregard for the potential harm to be visited on the public through the unregulated conduct of untrained legal advisors, the U.S. Department of Labor is facilitating the unauthorized practice of law via the PERM Rule.
The U.S. Department of Labor has compounded the long-term effects of potential harm from unregulated advisors by the regulation at 20 CFR § 656.10(b) which stipulates that if an employer is represented by an agent or attorney, the employer must take full responsibility for the accuracy of any representations made by the attorney or agent. In one broad stroke, the PERM Rule swept away the concept of detrimental reliance, forcing the employer into a position where the price for reliance on an unregulated agent or representative is assumption of the risk for incompetent work.
Under the current regulations and guidelines of the PERM Rule, employer have absolutely no recourse to correct de minimis defects wholly attributable to the incompetent actions of agents. Although the conduct of the agent amounts to the unauthorized practice of law, the actions of the agent are immune from any consequences because the agent answers to no regulating body, and the U.S. Department of Labor has established no standards for agents' conduct. Rather, the PERM Rule assigns responsibility for those defects squarely on the employer.
Even before the advent of the PERM Rule, the Board of Alien Labor Certification Appeals fashioned a rule that in cases where aliens were represented by non-lawyers, or by incompetent lawyers, and suffered egregious malfeasance, it would be manifest injustice to not permit the malfeasance to be corrected, even if corrective action were not specifically prescribed within the regulations. (Madeleine S. Bloom, 1988-INA-152 (Oct. 13, 1989)(en banc); Park Woodworking, Inc., 1990-INA-93 (Jan. 29, 1992) (en banc); Al-Ghazali School, 1988-INA-347 (May 31, 1989)(en banc); Buena Vista Landscape, 1990-INA-392 (July 9, 1991)(en banc).
Under the doctrine of manifest injustice, the errors caused by incompetent representation may be corrected by means of Supervised Recruitment as provided for in the PERM regulations.
A specific set of circumstances might support a request for remand under the doctrine of manifest injustice, namely, reliance on an untrained agent engaged in the unauthorized practice of law, substantive correctness of the Form 9089, the de minimis nature of the defects that can be cured by means of a supervised recruitment period, and the employer's persistence and dedication to the integrity of the PERM process.
A motion for review to the Board of Alien Labor Certification, but also containing a request for reconsideration based on manifest injustice, could include a request to remand to the Certifying Officer with an order to conduct supervised recruitment. The additional recruitment would be necessary to correct defects in processing caused by the incompetent agent.
The advantage to continue with recruitment, instead of filing a new application, is that this would permit employers to maintain original priority dates in accordance with the USCIS immigrant preference system, which would be a great injustice to the employer and alien in any case pending before the DOL.