In two June Client Alerts, we reported on an unprecedented action taken by the DOL. First, it announced in a press release that it was conducting an audit of all of the PERM applications filed by a major immigration law firm, alleging that the firm improperly participated in considering the qualifications of U.S. workers applying for PERM positions. In a subsequent Guidance Bulletin, the DOL clarified its earlier position, and stated that an attorney may participate in evaluating the qualifications of U.S. workers, but only after the employer first evaluates those qualifications and concludes that the applicant is unqualified for the position. In that case, the employer may seek the advice of counsel to confirm that its reasons for rejecting the U.S. worker are lawful. These actions by the DOL significantly, and in the opinion of many, unlawfully interfered with the attorney-client relationship, abridging the right of clients to receive legal advice from counsel.

On August 29, 2008, the DOL again modified its position, and retreated to the policies it had followed for decades. In response to what the Department terms “considerable feedback” from employers and attorneys, it issued new guidance endorsing the right of employers to consult with their attorneys to ensure they are in compliance with PERM’s legal requirements. As long as the employer, and not the attorney, first reviews an application for employment and then makes the final determination of whether the applicant is qualified, the attorney may provide legal advice “throughout the consideration process on any and all legal questions concerning compliance with governing statutes, regulations, and policies.”

Reminding the public of which attorney actions are impermissible, the DOL stated:

  • Attorneys may receive resumes from U.S. workers but may not conduct preliminary screening of the applications before the employer does so, unless the attorney performs this function in non- PERM cases.
  • Attorneys may not participate in interviewing U.S. applicants, unless the attorney performs this function for the employer in non-PERM cases.

This latest clarification is a return by DOL to its original long-held position, and it endorses the procedures that our firm has always followed