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American Bar Association - Defending Liberty, Pursuing Justice

June 2008

Vol. 4, No. 3

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Litigation

 

Further Clarification From DOL on Who Must Pay (Employer Or Employee) Attorney Fees in Processing Applications for Alien Labor Certification

On May 17, 2007, the Employment and Training Administration issued a Final Rule to clarify and augment its regulations on the permanent labor certification program, including the processing of cases backlogged under the prior regulation.

To hire permanent alien workers, U.S. employers generally must engage in a multistep process that involves filing with/approvals from the United States Citizenship and Immigration Service, the Department of Labor, and the Department of State (DOS). As of March 28, 2005, the first step begins with the U.S. employer filing a labor certification application ETA Form 9089, Application for Permanent Employment Certification, with DOL.

PERM is an electronic attestation-based system for filing and processing of labor certification applications. To obtain a labor certification, a U.S. employer must demonstrate to DOL, through a test of the labor market, that there are no able, willing, and qualified U.S. workers who are available to fill the proffered position in the geographic area where the job opportunity is located. The employer must also demonstrate that the employment of the alien will not adversely affect the wages and working conditions of similarly employed U.S. workers. After a review, DOL may either approve or deny the labor certification application. After receiving an approved labor certification, a U.S. employer must file Form I-140, Immigrant Petition for Alien Worker, with USCIS to demonstrate that the alien and the employer’s job requirements fit into a qualifying immigrant visa classification. USCIS reviews the approved labor certification in conjunction with the Form I-140 and other supporting documents to evaluate whether the position being offered to the alien worker is the same as the position specified on the labor certification and that the minimum level of education and work experience stated on the labor certification qualifies the position for the immigrant classification requested. In addition, the alien worker’s education, training and work experience are evaluated by USCIS to determine whether the particular alien worker meets the job requirements specified on the labor certification. The date the labor certification application was filed with DOL is used to establish the priority in which an immigrant visa will be made available to the alien worker.

Upon the filing or approval of Form I-140 by USCIS, the alien, if already in the United States, may be able to file Form I-485, Application to Register Permanent Residence or Adjust Status, in order to obtain lawful permanent resident status provided his or her priority date is current. In the alternative, upon approval of the Form I-140, if outside the United States, the alien may apply for an immigrant visa by filing an Application for Immigrant Visa and Alien Registration, Form DS-230, with DOS and gain lawful permanent resident status upon admission to the United States with an immigrant visa, provided his or her priority date is current.

DOL recently amended the administrative regulations (at 20 CFR part 656) through a final rule-making published on May 17, 2007, which took effect on July 16, 2007. The DOL final rule includes several provisions that will significantly impact adjudication of Form I-140 petitions that require DOL-approved labor certifications as a supporting document.

New 20 CFR 656.11 prohibits the alteration of any information contained in the labor certification after the labor certification application is filed with DOL.

New 20 CFR 656.30(b) (1) provides a 180-day validity period for approved labor certifications; employers will have 180 calendar days after the date of approval by DOL within which to file an approved permanent labor certification in support of a Form I-140 petition with USCIS. In the past the labor certification form was valid indefinitely after it was approved.

New 20 CFR 656.30(b)(2) establishes an implementation period for the continued validity of labor certifications that were or are approved by DOL prior to July 16, 2007; those labor certifications must be the subject of a filed I-140 petition within 180 days after the effective date of the DOL final rule; others approved after that date must be the subject of a filed I-140 within 180 days after approval.

More troubling are the new rules defining prohibited “payments” for “activity” related to obtaining permanent labor certification. This calls into question the ability of the foreign national to pay the attorney fees associated with the labor certification.

How does the Department define prohibited “payments” for “activity related to obtaining permanent labor certification?”

Pursuant to section 656.12(b), an employer may not seek or receive payment of any kind for any activity related to obtaining permanent labor certification, except from a party with a legitimate, pre-existing business relationship with the employer, and when the work to be performed by the alien beneficiary will benefit that party. “Payment” includes, but is not limited to, monetary payments; deductions from wages or benefits; kickbacks, bribes, or tributes; goods, services, or other “in kind” payments; and free labor. This includes the prohibition against the alien paying the “employer’s attorneys fees” in connection with the labor certification application.

What are activities relating to obtaining permanent labor certification?

“Activity related to obtaining permanent labor certification,” for purposes of  section 656.12(b), includes, but is not limited to, recruitment activity, the use of legal services, and any other action associated with the preparation, filing, or pursuit of an application. This section prohibits any such payment. An alien may pay his/her own costs, including attorneys fees for representation of the alien, except that when the same attorney represents both the alien and the employer, all costs related to preparing, filing, and obtaining the permanent labor certification must be borne by the employer.

Does the rule prohibit reimbursement agreements?

The regulation prohibits payment by the alien beneficiary or others of employer-incurred costs related to labor certification, including attorneys fees. If, for example, a reimbursement agreement would require the employee to reimburse the employer for some or all of the attorneys fees it incurred associated with preparing, filing, and obtaining the labor certification, such reimbursement agreement would violate the Final Rule.

What should employers do who have entered into contracts where reimbursement or payments from aliens are either owed after July 16, or although owed prior to July 16 not paid until after July 16?

Section 656.12(b) prohibits an employer from seeking or receiving payment of any kind for activity related to obtaining permanent labor certification, including the employer’s attorneys fees. If the payment obligation, however, accrued prior to July 16, the employer has the right to seek the payment after the effective date.

For applications filed on or after July 16, 2007, an employer who has sought this type of payment from the alien beneficiary of the application must answer “yes” to Question I-23 on ETA Form 9089 (“Has the employer received payment of any kind for the submission of this application?”), even if the employer has not yet received payment from the alien. Employers should describe the payment and from whom, and when appropriate clarify on the application, for the record, that the payment was for an obligation that accrued prior to the effective date of this provision (i.e., July 16, 2007). Employers answering “yes” to Question I-23 must be prepared, if requested by the certifying officer, to explain and support the details of such payment.

What should attorneys do who have entered into contracts where payments from aliens for labor certification preparation and filing are either owed after July 16, or owed prior to July 16 but not paid until after July 16?

Both because the Final Rule governs the payment or reimbursement of an employer’s attorneys fees, and because an attorney is the employer’s legal representative (and so stands in the place of the employer), the rule prohibits payments to an attorney for the employer’s legal fees when such payments would not be permissible directly to the employer. If the payment obligation accrued, however, prior to July 16, the attorney has the right to seek the payment after the effective date and should note on the application, for the record, when the obligation accrued.

For applications filed on or after July 16, 2007, if an attorney or firm completing the application represents the employer, or the employer and alien jointly, and has either sought or received a payment from the alien beneficiary that is directly related to the employer’s labor certification costs as outlined in the regulation, the attorney must answer “yes” to Question I-23.

Attorneys answering “yes” to Question I-23 must be prepared to explain and support the details of such payments. The attorney should describe the payment, explain that the payment was to the attorney and from whom, and when appropriate clarify on the application, for the record, that the payment was for an obligation that accrued prior to the effective date of this provision (i.e., July 16, 2007).

Do the regulations require attorneys to modify contracts for dual representation entered into before July 16, 2007?

The regulations state that an employer may not seek or receive payment from the employee (or a third party except in specific circumstances) after July 16 2007. Attorneys may represent employers in the preparation, filing, and obtaining of a labor certification and may be paid for that activity by the employer. Attorneys may represent aliens in their own interests in the review of a labor certification (but not in the preparation, filing, and obtaining of a labor certification, unless such representation is paid for by the employer), and may be paid by the alien for that activity. To the extent, however, that a contract exists between the attorney and the employee, which calls for the receipt on or after July 16 of payment for services rendered on or after July 16 in connection with the preparation, filing, or obtaining of a labor certification, such services are to be paid for, under the regulation, by the employer.

Do the regulations permit counsel for the alien to voluntarily represent the employers on a pro bono basis?

No. But for the attorney’s representation of the alien, the attorney would not be furnishing such services to the employer. This is prohibited by the regulations.

Debarment from the Permanent Labor Certification Program

When may the Department debar an employer, attorney, or agent?

Pursuant to section 656.31(f), the Department may debar an employer, attorney, or agent from the permanent labor certification program for up to three years, when it determines such employer, attorney, and/or agent has facilitated or participated in one or more of the following actions, if such action was prohibited at the time it occurred:

  • Sale, barter, or purchase of an application for labor certification or approved labor certification (see above);
  • Prohibited payment for an activity related to obtaining permanent labor certification;
  • Willful provision or assistance in the provision of false or inaccurate information for an application for labor certification;
  • Pattern or practice of failure to comply with the terms of Form ETA 9089, Application for Permanent Employment Certification, or Form ETA 750, Application for Alien Employment Certification;
  • Pattern or practice of failure to comply with the Permanent Labor Certification audit process;
  • Pattern or practice of failure to comply with the Permanent Labor Certification supervised recruitment process; or
  • Fraud or willful misrepresentation involving a Permanent Labor Certification, as determined by a court, the Department of Homeland Security, or the Department of State.

Debarment could be crippling to an employer who employs and wishes to retain foreign nationals by sponsoring them for permanent residence as it would prohibit employer-based sponsorship.

Neil S. Dornbaum and Kathleen Peregoy are members of Dornbaum & Peregoy LLC Newark, New Jersey. Their practice is limited to immigration and naturalization with special emphasis on employment-based immigration. The firm is listed in Martindale-Hubbell’s “Preeminent Lawyers,” and both members are listed in “Best Lawyers in America” and in New York. They also appear in New Jersey Magazine’s listing of “Top Lawyers” for their work in immigration law, and the “Super Lawyers” publications.

© Copyright 2008, American Bar Association.