Reminder of Effective Date of DOL Rule Effective July 16, 2007
July 10, 2007
Although we still wait for promised but undelivered guidance from the U.S. Department of Labor on employee reimbursement of costs paid before July 16, 2007, we feel it imperative to outline the following critical points for your immediate attention.
Prohibition of PERM Reimbursement Effective July 16, 2007. The DOL rule is clear that, for cases commenced and filed after July 16, 2007, employees may not pay for the recruitment costs, the attorney fees or any other cost or fee associated with a PERM labor certification filed on their behalf. This prohibition includes reimbursement to the employer by the employee upon his or her early termination of these associated fees and costs.
Reimbursements Received Prior to the Effective Date of the Rule. There is no clear guidance regarding payments/reimbursements made before July 16, 2007 for cases filed after July 16, 2007. The DOL has promised it will issue specific guidance on this issue soon. This prohibition against reimbursement does not apply to PERM cases filed before July 16, 2007.
Amending Current Immigration Policies. Moving forward, we recommend that employers change any reimbursement policy, promissory note, or other contract that requires the repayment of PERM fees and costs. We believe such agreements would be unenforceable. You may wish to contact your corporate counsel for advice as to the effectiveness of current contracts and policies.
Reimbursements Permissible for I-140 and I-485 Cases. The USCIS has confirmed that employers may be reimbursed for legal and related costs associated with I-140 Immigrant Visa Petitions and I-485 Applications for Permanent Residence.
Signing PERM Form under Penalty of Perjury. As we always advise our HR teams, employers and their immigration attorneys are required to swear under the penalty of perjury that all representations made on the PERM application are true and correct. One of the PERM Form questions asks directly whether the employer has received payment of any kind in exchange for the submission of the application. This question should be read to include any future payment, reimbursement or other consideration for the filing. This prohibition clearly applies for cases begun on or after July 16.
New Sanctions Apply to Employers, Attorneys and Agents. The new rule includes increased sanctions against employers, attorneys and agents for the willful failure to comply with the terms of the PERM process, including potential debarment from the PERM program as well as suspension of cases under investigation.
We hope this information is helpful. We are available to assist with revision of your current immigration policies to ensure compliance with the new rule. We will continue to update you on developments.