Why Does the Department of Labor Bar Pro Bono Work for Lawyers in PERM Cases?

Posted on: February 21st, 2015
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Readers please respond. I’m a panelist today at the AILA Georgia-Atlanta conference and just heard on a panel something that was news to me even though it’s been in the rules for a while. The Department of Labor forbids attorneys from offering their services in PERM labor certification cases on a pro bono basis. I looked up the rule and it reads

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.

This strikes me as completely outrageous. If a lawyer wants to help a non-profit, government or charitable organization on a tight budget hire a foreign national that they can prove they can’t fill with an American worker, what is the public policy benefit of requiring the employer to pay for a lawyer when those services are being offered on a volunteer basis. For example, an impoverished school district in a rural area can’t find enough math or science teachers. They want to bring in an international teacher, but they can barely afford to keep the lights on, much less pay an outside law firm for immigration work. A lawyer who grew up in the town and has a special place in her heart for the community knows that this teacher will make a big difference for the children in the community so she offers to donate her services. Barred! Maybe the teacher who will benefit can pay? Sorry, that’s also barred.

First, this rule is unconstitutional. It effectively means the Department of Labor is barring the school district and the teacher’s access to legal counsel. Second, it encourages people to file cases without lawyers or hire the cheapest, least competent lawyers, both of which mean that the employee could suffer as a result. This rule was included as an “anti-fraud” measure by the Labor Department and the argument at the time was that it would ensure that cases were not being filed on behalf of employers who did not know the cases were even being filed. But why would an employer receiving pro bono services raise any fraud issues. Perhaps DOL thinks that the law firm would secretly be going back and charging the employee for the services? But the same thing could happen with employers who secretly dock employees for the legal fees even when the employer pays.

This rule needs to go. Lawyers should not be discouraged from taking on pro bono cases and this rule is cruel and probably illegal. Your thoughts?