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Joel Stewart on PERM Labor Certification

PERM Rule Promotes Unlicensed Practice of Law

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This week I met with a client who related yet another tragic PERM story.

The client had applied through PERM some years ago, but the Employer went out of business during the economic turn-down, and, although the PERM application was approved, the I-140 petition could not be filed due to insufficient funds available to pay the salary to the alien.

Moving on to a new employer, the Employer was recommended to use a non-lawyer consultant to prepare and file the labor certification.

The consultant filed a new PERM application, which was promptly denied in 60 days. The consultant then filed a new PERM form again. This was the third PERM form filed on behalf of the alien.

A Notice of Audit was issued about one year later, and the consultant prepared the response to the audit. However, due to carelessness, the consultant provided a copy of the PERM form that had been denied, instead of a copy of the new PERM form.

Not unexpectedly, the DOL denied the third PERM form, stating six reasons for denial, including the fact that the PERM form provided with the audit response did not correspond to the current case, but to the earlier case that had already been denied. The 9089 was unsigned as required by law. In addition, the DOL found that the employee Incentive Program included a notice of the job opportunity, but no incentive. And, while the 9089 form contained minimum requirements of a Bachelor's Degree plus 24 months of training and 24 months of experience, the Incentive Program, 30-day job order, internet ad, newspaper ads, ethnic newspaper ads and other documents showed 48 months of experience, and no mention of the Bachelor's Degree.

All in all, the denial was dismal. With so many defects in the application, there could be no hope of requesting reconsideration or appeal based on harmless error, typographical mistake, or computer glitch, as has occurred in many other cases. The errors in this case were just plain wrong, even absurd!

Although the preparation of legal documents constitutes the unlicensed practice of law in most states, the Federal Department of Labor policy encourages the unlicensed practice of law by permitting unlicensed persons to act as Agents, Preparers and Filers of PERM forms for U.S. Employers. 

Since practitioners have to apply to State Bar Associations to obtain licenses to practice law, the only place where an unlicensed person might legally prepare and file PERM forms for compensation would be abroad, on a ship outside US territorial waters, on Indian Reservations, or inside National Parks and other federal territories.

While reviewing the malfeasance committed in this case, It occurred to me that the problem here is one of fundamental fairness.

The parties to the process (Employer and Alien) had no inkling that the consultant who held himself out as a labor certification specialist might be poorly trained or unqualified, but had every reason to believe that since the consultant's participation was sanctioned by the DOL, they could rely on the service being provided.

Of course the Employer could file yet another PERM case, the third for this employer, and the fourth on behalf of the alien, but the alien would lose the priority date of the current PERM case, now more than two years old.

I reasoned that even if we were successful in documenting that the DOL was wrong in allowing an unqualified practitioner, the errors were so bad that a certification could not be issued, because a true test of the job market had not occurred during the recruitment process.

A possible solution to this quandry would be to request reconsideration, but at the same time ask that the CO allow the Employer to correct the errors by allowing re-recruitment of the same application.

Re-recruitment  is the procedure that used to followed by DOL before PERM was intorduced. In those days, employers received warnings that a denial would be issued if errors in recruitment or processing were not corrected.

Under PERM, error correction is not supposed to occur due to the DOL's Zero Tolerance Policy. The idea of this policy was to promote efficiency in the program.

However, under the PERM Rule, there is a provision called "Supervised Recruitment" that authorizes the CO to permit or require supervised recruitment in any PERM case. 

If the CO were to permit the application to go forward with Supervised Recruitment, the application might be approved without losing the priority date. 

The Employer could also file a complaint with the state Unlicensed Practice of Law Committee, to advise that an unlicensed person has been practicing law by preparing and filing PERM applications. The complaint would become part of the motion to reconsider as well.

Ultimately, the DOL should revisit its policy to permit unqualified and untrained person to enter appearances not only as agents, but also as preparers of PERM forms. This can only result in manifest injustice, as in the current case.

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