PERM Updates from the DOL

On September 17, 2008, the Department of Labor (DOL) provided an important update regarding its application of the "consideration rule" to the Foreign Labor Certification application process (the process). This came on the heels of the entire lot of the immigration boutique firm of Fragomen, Del Rey, Bernsen & Loewy’s (Fragomen) PERM applications being pulled for auditing. The PERM process, is mandatory for all employers who are sponsoring foreign nationals for permanent residence. Essentially, in order for the DOL to approve the Foreign Labor Certification application, the employer must prove that there are no qualified U.S. workers available to fill the position. The “consideration rule” supplements the process by requiring employers who file labor certification applications to recruit and consider U.S. workers “in good faith.” Good faith recruitment requires that “an employer’s process for considering U.S. workers who respond to certification-related recruitment closely resemble the employer’s normal consideration process.” This means that in general, the employer, and not an attorney or agent, must be the first to review an application for employment. The employer must also determine whether a U.S. applicant’s qualifications meet the minimum requirements for the position, unless an attorney or agent routinely performs these functions for positions for which labor certifications are not filed. Attorneys may, however, “provide advice throughout the consideration process on any and all legal questions concerning compliance with governing statutes, regulations, and policies.”

Additionally, the DOL confirmed that it will only apply the consideration rule to those applications where the
recruitment began after August 29, 2008, the date of the rule's final guidance. Moreover, the DOL stated that it will release and continue processing any applications currently under audit exclusively for concerns related to the consideration rule. This is an important step in reducing processing times and moving back on track. However, it should be noted that, according to an affidavit, Fragomen had 49% of its filings under audit prior to the DOL opening its investigation of the firm’s practices. The DOL reasoned that the change was necessary because many lawyers incorrectly believed that the attorney for the employer was exempt from the agency's PERM labor certification rule prohibiting consideration of the qualifications of U.S. worker applicants for the advertised job. According to the DOL, the Department received evidence that many immigration attorneys believed that the Department's rule regarding consideration of U.S. workers did not apply to them unless they represented not only the employer seeking the labor certification, but also the alien for whom the certification was being sought.

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