DOL Issues a New Bulletin on the Role of Attorneys in the PERM Process and Asserts Fragomen Lawsuit is Moot

On August 29, the DOL issued a new Guidance Bulletin confirming the right of employers to seek counsel as part of the PERM labor certification process.  The DOL went on to clarify the types of actions that are prohibited, namely: attorneys cannot conduct a preliminary screening of applicants before the employer, unless the attorneys always perform this function; and attorneys cannot participate in interviewing U.S. worker applicants unless they routinely perform this function.  This clarifies and seemingly retreats from previously stated positions of the DOL.  In addition, the DOL announced on its website on September 17 that all pending audits triggered exclusively by attorney consideration rule concerns are being released and will be processed in accordance with their original filing date. 

As discussed in the August 2008 issue of the Immigration eAuthority, the law firm of Fragomen, Del Rey, Bernsen and Loewy LLP had filed a lawsuit seeking a preliminary injunction and permanent stop to the DOL’s audit of PERM applications filed be the Fragomen firm on behalf of its clients.  On August 29, the DOL filed a memorandum opposing the request for a preliminary injunction believing that, based on its newly-issued bulletin, the DOL’s position does not inappropriately restrain attorney-client communications which was the primary issue complained of by Fragomen in its lawsuit.  As yet, there has been no final resolution of the suit.

Note: This article was published in the September 2008 issue of the Immigration eAuthority.