USDOL to Audit All PERM Labor Certifications Filed by Fragomen
On June 2, 2008, the USDOL announced that all PERM Labor Certification Applications (“LC”) submitted by the law firm of Fragomen, Del Rey, Bernsen & Loewy (“FDBL”), the largest immigration firm in the nation, will be audited.
USDOL’s announcement states: “The department has information indicating that in at least some cases the firm improperly instructed clients who filed permanent labor certification applications to contact their attorney before hiring apparently qualified U.S. workers. The audits will determine which, if any, applications should be denied or placed into department-supervised recruitment because of improper attorney involvement in the consideration of U.S. worker applicants.”
I do not know what FDBL did or did not do, but I certainly take objection at USDOL’s decision, as a colleague stated, for “trying” FDBL in a press release. Such announcements should be reserved only for cases in which the USDOL has found the existence of wrongdoing.
In its announcement the USDOL also states that: “There is no legitimate reason to consult with immigration attorneys before hiring apparently qualified U.S. workers who have responded to recruitment required by the permanent labor certification program.” I could not disagree more or in stronger terms. It is wrong for an attorney to advise the employer not to hire a qualified U.S. worker, but USDOL regulations are clear as far as an employer’s right to receive legal counsel through the much confusing and convoluted PERM process. 20 CFR § 656.10(b)(1) states clearly that attorneys may represent employers throughout the process. As long as the attorney does not interview or consider the U.S. worker for the position, the attorney has not violated any rule. Through this announcement USDOL also appears wanting to restrict the open communication that must exist between an attorney and his client for purposes of legal representation.
But there is another point I wish to make. Many employers in their quest for the “easiness” of a mill 
application process and low attorney fees receive legal services which may cover the minimum application requirements, but that do not offer protection. The days of “easy” compliance are long gone; today’s immigration law is complex, always changing and confusing. The US government has become more active in enforcing immigration laws against employers. In response to 9/11, the government has increased security measures and electronic initiatives to address national security concerns. The increase in the government's immigration policies is manifesting itself in a resurgence of government audits and criminal investigations of US employers. Given these enforcement times we live in, employers would be better served by researching and hiring legal services that offer them safety.
