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Joel Stewart on PERM Labor Certification

Attorney Fee Rule: Who can pay what and to whom?

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Now that the new DOL regulations are in effect, more questions have arisen about payment for attorney fees and recruitment costs like advertising.



The rule states that after the effective date of July 16, 2007, no alien may pay the costs of a PERM case (or other pre-PERM case pending), and no alien may pay the attorney fees for the Employer. The alien may only pay for his or her own attorney fees.



One immediate problem involves payment of ads and other recruitment fees, if a contract providing that the alien must pay recruitment costs has been signed between the parties (Employer, Alien, and Attorney), preceding the effective date of the new Rule on July 16, 2007. Which law trumps...does a preexisting contract trump the DOL regulation, or does the DOL regulation trump a preexisting contract?



The Immigration Bar always prefers to seek a safe haven: They want someone to provide an official response, "Can the alien pay for costs if the contract predates the effective date of the new rule?" DOL may issue an official response in the form of an FAQ on this point, but until an FAQ is issued, each attorney must provide the answer to his or her clients.



It seems to me that the proper approach is to follow the PERM rule, until further clarification is available in the form of an FAQ or case-law. I realize that some attorneys are confident that preexisting contracts prevail, not the PERM rule, however, attorneys should then be prepared to litigate, if DOL disagrees in a context negative to a specific client.



One must bear in mind that the DOL allowed a grace period before the effective date of the new rule. Presumably, all ads contemplated and required by existing contracts could have been ordered, placed, billed and paid (even if by the alien) prior to July 16, 2007. Therefore, it appears that only the Employer may now pay, not the alien.



I welcome the opposing view, i.e., if any of my colleagues can provide strong arguments to support the position that a preexisting contract still trumps the PERM Rule, even after the effective date, I would be pleased to receive their comments here for our review and analysis.

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