In a highly unusual June 2, 2008 press release issued before completion of investigation, the U.S. Department of Labor (DOL) announced that a major immigration law firm and all of its clients have become the subjects of a PERM labor certification audit. PERM (an acronym for Program Electronic Review Management) is the DOL's online database for reporting the results of an employer's "test" of the U.S. labor market for any available U.S. workers. A "failure" in the PERM recruitment test is a precondition in order to obtain an employment-based green card for most foreign workers. The blanket DOL audit, announced before an investigation had been completed, immediately drew criticism from the American Immigration Lawyers Association. The allegedly improper activity involved communications that some members of the law firm reportedly made to firm clients during the recruitment phase of pending PERM applications. A few days later, however, the DOL issued a "clarification" which recognized the legitimate role that lawyers play in the labor-certification recruitment process. For background on the controversy, see "Labor Department to Lawyers: 'You're Just Potted Plants,'" a June 23, 2008 article, co-authored by Angelo A. Paparelli and Ted J. Chiappari, in the New York Law Journal's "Immigration Column," available at this link.
As most in the immigration world know, the DOL is very concerned about fraud in the immigration process. No ethical employers or lawyers would deny the importance of deterring fraud, and truly bad apples of course need to be removed from the barrel. Yet when DOL targets reputable lawyers and law firms and audits all of their clients for alleged conduct that the agency belatedly acknowledges is within the proper scope of the attorney-client relationship, then the objective of fraud-deterrence is actually impaired rather than facilitated. Moreover, when the agency in the name of "program integrity" or "reform" seeks to minimize the role of lawyers, while continuing to promote a deeply-flawed PERM system and tolerate a role for unlicensed agents (consultants and notarios), then something is definitely wrong in Bureacracyland.
To date, despite the agency's clarification concerning the proper scope of lawyer conduct in advising an employer during the PERM recruitment phase, there is no indication that the DOL has reversed the agency's decision to conduct the blanket audit.
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