The Labor Department has released a bulletin offering explanation on the thinking behind the bombshell decision to audit the large immigration law firm. Here is the key language. I'm not sure this really clarifies things except it appears that DOL is saying immigration lawyers can review the legality of the rejection of US workers, but that if an employer indicates that a lawyer may not be consulted if the worker is determined by the employer to be qualified.

I think the problem with this is that it assumes that Fragomen was going to interfere with the hiring of the US worker merely because they asked to be notified when an offer was to be extended. There are logical reasons why the lawyer would be notified that have nothing to do with interfering with making the offer. For example, they may have wanted to be notified so that they could cease work on the labor certification case and not run up unnecessary legal bills. Or perhaps the certification was being sought for multiple workers for the same position. So instead of, say, 10 workers being certified by a single petition, certification would be sought for a smaller number and the firm needed the information on the qualified worker in order to properly document recruitment results.

The good news is that the guidance appears to make clear that employers do have a right to use an attorney, an important admission. Now the tug of war begins on just what limits DOL can place on attorneys.

By prohibiting attorneys, agents, and foreign workers from interviewing and considering U.S. workers during the permanent labor certification process, as described in 20 C.F.R. 656.10 (b)(2)(i) and (ii), the Department does not thereby prohibit attorneys and agents from performing the analyses necessary to counsel their clients on legal questions that may arise with respect to this process. The employer, and not the attorney or agent, must determine whether a U.S. applicant's credentials meet the minimum qualifications for the position, unless the attorney or agent is the representative of the employer who routinely performs this function for positions for which labor certifications are not filed. After an employer evaluates a U.S. worker and concludes that the worker is unqualified, the employer may seek the advice of its attorney or agent to ensure that its reasons for rejecting the U.S. worker are lawful, and the attorney or agent may review the qualifications of the U.S. worker to the extent necessary to provide that advice. By contrast, if an employer evaluates a U.S. worker and determines that the worker is minimally qualified, the attorney, agent, or foreign worker may not thereafter consider the applicants' qualifications and attempt to substitute his or her own judgment for that of
the employer. In the Department's view, an employer's determination that a U.S. worker is minimally qualified for a position constitutes clear evidence that there are U.S. workers who are able, willing, qualified and available for the work to be undertaken.

More specifically, the types of actions prohibited by 20 C.F.R. 656.10(b)(2)(i) and (ii) include:

o Attorneys and agents may receive resumes and applications from U.S. workers who respond to the employer's recruitment efforts; however, they may not conduct any preliminary screening of applications before the employer does so, unless the attorney or agent is the representative of the employer who routinely performs this function for positions for which labor certifications are not filed. The attorney or agent may not withhold from the employer any resumes or applications that it receives from U.S. workers.

o Attorneys and agents may not participate in the interviewing of U.S. worker applicants, unless the attorney or agent is the representative of the employer who routinely performs this function for positions for which labor certifications are not filed. Such involvement, because of its uniqueness, has resulted in an impermissible "chilling effect" on the interests of U.S. worker-applicants in the position.

o After the evaluation of applications by the employer has been completed, the employer may consult with its attorney or agent about the implications of its qualification determinations on the labor certification application. Those consultations can encompass the question of whether applicants who were found by the employer to be unqualified were rejected for lawful, job related reasons. Under no circumstances, however, should an attorney or agent seek to dissuade an employer from its initial determination that a particular applicant is minimally qualified, able, willing and available for the position in question.

Where the Department finds evidence of potentially improper attorney, agent, or foreign worker involvement in considering U.S. worker applicants, the Department may audit applications to determine whether the employer's recruitment and hiring processes were conducted in good faith and to ensure adherence to all statutory and regulatory requirements.