在这两个星期DOL对于PERM申请时,律师所能扮演的角色做出极大的限制，而且会有大量
的Audit出现。后来DOL又在澄清之前的立场。但是还是非常的严苛。以下是我们对于这
个事件的一些分析。我们相信在未来DOL还会有更进一步消息，我们会为之报导分析。
This topic is attracting great attention these days. The Department of Labor
(DOL) while issuing PERM Program Guidance Bulletin on the Clarification of
Scope of Consideration Rule in 20 CFR 656.10(b)(2), has made it clear that
the role of attorneys in the permanent labor certification process is
confined to rendering consultation services to the employers to ensure that
they are complying with all applicable legal requirements.
Reliance on Good Faith Recruitment:
The DOL presumes that the employers, who file labor certification
applications to recruit and consider U.S. workers, have taken all
recruitment steps in good faith. The good faith recruitment requires that an
employer’s process for considering U.S. workers who respond to
certification-related recruitment, to resemble his normal consideration
process. This normal process, according to DOL, does not involve (in most
situations), a role for an attorney or agent in assessing the ability of
applicants to fill the employer’s needs.
Role of a Counsel:
The ‘permanent labor certification program’ imposes certain recruitment
standards on employers. These standards may, in certain cases, be higher
than those of employer’s normal standards of evaluation. Therefore, the DOL
recognizes a limited role for attorneys, to counsel the employers on legal
questions that may arise with respect to this process. An attorney has no
role in determining whether a U.S. applicant’s credentials meet the minimum
qualifications for the position, unless the attorney who routinely performs
this function as employer’s representative for positions for which labor
certifications are not filed. The following is the role attorneys may play
in this certification process:
1. Receive resumes and applications from U.S. workers who respond to the
employer’s recruitment efforts;
2. Advise employers to ensure that the reasons for rejecting U.S. workers
are lawful, and review the qualifications of U.S. workers only to the
extent necessary to provide this advice;
Restrictions:
The following are the restrictions on attorney’s role during the permanent
labor certification process:
* Not to dissuade the employer from his initial determination that a
particular U.S. worker is minimally qualified;
* Not to conduct any preliminary screening of applications before the
employer does so, unless the attorney is the representative of the employer
who routinely performs this function for positions for which labor
certifications are not filed;
* Not to withhold any resumes or applications that he/she receives from
U.S. workers;
* Not to participate in the interviewing of U.S. applications, unless
the attorney is the representative of the employer who routinely performs
this function for positions for which labor certifications are not filed;
Any violation of the aforementioned provisions may trigger an audit of
applications by the DOL to determine whether the employer’s recruitment and
hiring processes were conducted in good faith and to ensure adherence to
all statutory and regulatory requirements.
Objections to the Interpretation:
American Immigration Lawyers Association (AILA), has expressed serious
concern about DOL’s interpretation of the legitimate role of counsel in the
certification process. According to AILA, PERM recruitment is a highly
structured process governed by detailed regulations and complex
administrative case-law. The practice of sending resumes to the attorneys by
the State Workforce Agencies in the traditional labor certification
recruitments was a tacit acknowledgement of the role of attorneys in
advising employers regarding what elements on those resumes they could or
could not take into account when considering applicants. This practice did
not, and does not, constitute improper attorney participation in the
consideration of applicants. Rather, it is the permissible rendering of
legal advice to employer clients on the statute and regulations governing
employer actions during the labor certification recruitment process. An
intrinsic part of the right to counsel is the right to receive advice on the
application of law to specific facts.
Conclusion:
Much to the disappointment of immigration attorneys, the DOL has interpreted
the Rule in 20 CFR 656.10(b)(2), in a very narrow perspective. This
attracted some serious reactions from various quarters. The lawyer community
appears to be more assertive of its rights. The aforementioned
interpretation of a statute by the DOL has initiated a debate on the
attorney’s role in the PERM process. This debate appears to continue for
some more time and until it reaches to a logical end. As this issue concerns
not only us but also many of our clients, and therefore, we owe a
responsibility to have a close look on the developments, and update our
clients accordingly, which we will do so.
本文由范毅禹律师事务所提供
本律师事务所精办各类劳工应聘及专业移民申请 (包括H-1，L-1，EB-1，EB-2，NIW，
劳工卡，绿卡等申请)。所有申请由多位美籍律师及拥有15年经验的范毅禹律师亲自处
理，我所并特设中英移民网站。内有最新移民新闻资讯及由律师主持的移民问答集，欢
迎读者流览查询。
www.fan-law.com (Chinese)
www.fanuslaw.com (English)
CALIFORNIA : Fan, Fitzpatrick & Thompson, LLP.
370 E. Glenarm St., Pasadena , CA 91106
Tel: 626-799-3999 Fax: 626-799-9966
MARYLAND : Fan, Fitzpatrick & Thompson, LLP.
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