DOL Audits All Labor Cert. Applications Filed by the Fragomen Law Firm

Summary:
The Department of Labor (DOL) has decided to conduct an audit of all permanent labor certification applications filed by Fragomen, Del Rey, Bernsen & Loewy, LLP (Fragomen).  DOL alleged that it "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," the DOL said.

Fragomen responded in a statement released on its Web site that "DOL, by its audit, seeks to limit the right to counsel. In order to make its point, DOL presses to make a radical departure from past practice and create a new regulatory interpretation which would limit the role of employers' attorneys and bar them from giving guidance on specific fact situations."

The outcome of this back and forth between the DOL and the Fragomen Law Firm remains to be seen.  More importantly, for employers, what does this mean for the labor certification process for Fragomen cases and labor certifications in general?  The following is what I predict can be expected:

• DELAYS OF ALL FRAGOMEN CASES – PRESENT AND FUTURE.

In light of the numerous cases which may be involved, if the DOL follows through with their stated intentions, the sheer manpower that it will take to audit all these cases is going to cause delay in their processing.  A general increase in the number of audits has already slowed down the processing of audited cases.  Auditing all of the Fragomen cases could bring labor certification processing of the cases which they represent to a virtual standstill, at least for the near future.

• OVERWHELMING OF THE ATLANTA DEPT. OF LABOR OFFICE.

As of June 1st, all PERM labor certification processing activities have been assigned to only the Atlanta DOL office.  Chicago is no longer involved.  The Atlanta office has already been recognized for processing delays of the labor certifications under its review.  It is safe to assume that the Atlanta staff is not ramped up to deal with the onslaught of hundreds, and quite possibly thousands, of mandatory audits. 

• INDIVIDUALS AND, POSSIBLY COMPANIES, ARE GOING TO SEEK OTHER FIRMS TO PROCESS THEIR LABOR CERTIFICATIONS

With a guaranteed audit, most are not thrilled by the prospect and the additional time, effort, and money that these audits will incur.  While no PERM labor certification is exempt from an audit, taking a chance is certainly better than a sure thing.  Our office has already had conversations with a number of people who are looking for alternatives to Fragomen processing their cases, along with its guaranteed audit.

• THERE IS THE POSSIBILITY OF DELAYS FOR ALL PERM LABOR CERTIFICATIONS.

Due to the work load that the Fragomen audit will impose, it will be impossible for the Atlanta DOL to keep up with “business as usual.”  This means that all PERM cases will take longer  (Although many non-Fragomen non-audit cases should be adjudicated with only a modest delay).  If a case is going to be audited, it will probably be thrown in with all the other cases in the Fragomen queue, which may mean months of additional processing times.

• THE DOL COULD CHANGE THEIR MIND.

Once confronted with the horrific amount of time and lack of resources that it has, the DOL may just cave in, retract its statement about auditing all Fragomen cases, and merely identify a much more selective Fragomen audit program.

• THE DOL APPEARS TO BE ON THE WAR PATH. 

One thing is certain; the Dept. of Labor is trying to spread the message.  While we are evaluating the message that the DOL is trying to spread about attorney involvement in the recruitment process, Litwin & Associates is very comfortable in the way that it has handled and continues to handle PERM processing and the advice that we give our corporate and individual clients.  However, until the dust of this particular snafu settles, you may find that we will be giving more information up front, to allow you to do your work better.

We continue, as in the past, to maintain the highest levels of integrity for both our clients and ourselves, so that the Dept. of Labor will not be tempted to audit any of our clients’ cases, at least, on a wholesale basis.

Edward R. Litwin