Department of Labor Steps Up Enforcement in Immigration Programs: Analysis of Recent Developments

The Department of Labor (DOL) has issued several news releases in recent weeks that point to a regime of increased enforcement in DOL’s immigration programs. The first news release, issued on June 2, announced that DOL is auditing all of the applications for permanent labor certification (PERM applications) filed by a major immigration law firm, Fragomen, Del Rey, Bernsen & Loewy LLP, on behalf of its clients. The number of cases involved in this audit is reported to be in the range of 2,000. DOL is investigating these PERM applications due to alleged improper involvement by Fragomen attorneys in the consideration of U.S. workers who applied for positions through the PERM recruitment conducted by the firm’s employer clients.

DOL issued two additional noteworthy news releases on July 8. In one of these releases, DOL announced that it is initiating “supervised recruitment” of all PERM applications filed by the law firm Cohen & Grigsby. Having spent roughly one year auditing the PERM applications filed by this law firm, DOL determined that Cohen & Grigsby may have improperly advised its clients regarding the recruitment of U.S. workers. The audits and supervised recruitment are directly related to statements made during a Cohen & Grigsby client seminar that were later posted on YouTube.com. The comments appeared to discourage good-faith recruitment during the PERM process. As discussed more fully below, “supervised recruitment” means that the affected employers will have to conduct recruitment again for each PERM case, following special recruitment instructions issued by DOL.

The second news release issued on July 8 announced the debarment of an immigration software company from filing PERM applications for a period of three years. DOL stated that it found that the company had willfully provided false or inaccurate information when filing the PERM applications, and had failed to comply with the terms of the application found on Form ETA 9089. According to the press release, the immigration software company submitted over 100 PERM applications for the sole purpose of testing DOL's online processing system for PERMs. An employer filing a PERM application must attest that “[t]he job opportunity has been and is clearly open to U.S. workers.” DOL likely determined that the filing of the PERM applications as test cases placed the company in the position of falsely making this attestation. The news release quoted DOL Solicitor Gregory F. Jacob as follows: “The department takes seriously its responsibility to ensure program integrity, thereby protecting employment opportunities for American workers.”

Taken together, the three announcements by DOL signal that the department will begin to flex new muscle and use its investigatory authority more broadly and frequently with respect to the immigration programs it administers. Moreover, DOL’s use of news releases to announce its actions with respect to these programs adds an element of public notoriety that employers will be anxious to avoid. DOL is responsible for PERM, as well as for temporary agricultural and nonagricultural labor certification programs (H-2A and H-2B). Through its Wage and Hour Division, DOL is also responsible for enforcing employer obligations in the H-1B professional temporary worker program. Based upon DOL’s recent activity, we can expect to see heightened enforcement in all of these programs in the coming months.

Implications for Employers

In light of the heightened enforcement by DOL, and the publicity attracted by DOL’s latest actions, employers should take the time to ensure that their PERM procedures are in compliance with all DOL rules. DOL regulations require that the employer maintain certain PERM compliance documentation for five years after the filing of a PERM application. Commonly referred to as a “PERM Audit File” or a “PERM Compliance File,” these files essentially contain a copy of the PERM as filed, as well as all supporting evidence of the employer’s good-faith recruitment.

Employers should ensure that they understand and are in compliance with all of the attestations they are required to make on the PERM application, that their internal PERM procedures are designed to ensure compliance, that they have a PERM Compliance File for each PERM filed, and that these compliance files contain the requisite information. Finally, DOL has announced that it will soon review its procedures regarding approval for Labor Condition Attestations (LCAs) required prior to the filing for an H-1B application. There may well be additional enforcement actions in the H-1B program in conjunction with this review. Employers should review their H-1B procedures and ensure that they are maintaining the records required to be publicly available upon the filing of an LCA. Employers engaged in the H-1B and PERM processes on a regular basis might consider an internal audit of their immigration-related processes and files as a proactive step to ensure compliance with DOL rules.

What Is a PERM Application?

A PERM application is often the first step of the permanent resident or “green card” process for an employer-sponsored foreign national. Through the PERM online system, an employer attests to DOL that it took certain steps prescribed by regulation in order to test the U.S. labor market. The purpose of the labor market test is to determine whether there are U.S. workers willing, able, and qualified to undertake the job opportunity before the employer undertakes to sponsor a foreign national for that opportunity.

What Is a PERM Audit?

DOL issues an audit on a PERM application when it is seeking additional information regarding the actual minimum requirements of the position, the employer’s recruitment effort, or any other issue bearing on the adjudication of the application. Currently DOL is auditing roughly one-third of all PERM applications filed. An employer must respond to an audit request within a 30-day period, but it can take DOL nine months to a year to review the application after the audit response is received and make a decision.

What Is “Supervised Recruitment?”

Under the standard PERM process, the recruitment activities that the employer must undertake prior to filing are self-directed. While the employer must follow the regulatory requirements, the steps are taken independent of DOL oversight, and DOL reviews the employer’s recruitment steps after the application is filed. In contrast, “supervised recruitment” is a series of additional post-filing recruitment actions that are mandated and closely monitored by DOL. DOL may require an employer to conduct supervised recruitment when the agency is not satisfied that the employer conducted a sufficient or bona fide test of the labor market prior to filing the PERM application. Supervised recruitment adds significant delay to the processing of a PERM labor certification. DOL may require supervised recruitment after an audit is completed, or without issuing an audit at all.

What Is “Debarment?”

DOL may debar an attorney, employer, or agent from filing PERM applications for a period of up to three years if DOL finds that any of those parties engaged in certain activities including, but not limited to, willful provision of false information, fraud, and failure to comply with the terms of the PERM application.

Morgan Lewis will continue to monitor the situation and will update you with any new information. If you have any questions about any of the issues raised in this Morgan Lewis Immigration Alert, please contact:

San Francisco
A. James Vázquez-Azpiri
415.442.1343
ajvazquez@morganlewis.com

Lance Nagel
415.442.1345
lnagel@morganlewis.com
 
Washington, D.C.
Eleanor Pelta
 202.739.5050
epelta@morganlewis.com

Eric S. Bord
202.739.6040
 ebord@morganlewis.com