Think Immigration: Dealing with Conflicts of Interest in the PERM Context

As part of our efforts to amplify the AILA Law Journal, author Olivia Shaw describes a bit more about the article she wrote for the Spring 2025 issue of the AILA Law Journal. AILA members, access your free digital copy of the Law Journal to read more!

A key feature of many law school professional responsibility courses is a deep dive into conflicts of interest. In my professional responsibility course, we spent weeks evaluating conflicts with current clients, former clients, and even prospective clients. However, when it came to discussing conflicts of interest in the field of immigration law, there was only one small section in the textbook that noted that conflicts of interest in employment-based immigration are just different. This Article uses the American Bar Association (ABA) Model Rules of Professional Conduct to provide the bite-sized, step-by-step analysis of the conflicts of interest common to the practice of employment-based immigration that you did not learn about in law school.

This Article focuses on the permanent labor certification and starts by examining why some practitioners argue that dual representation is a necessary feature of these cases. Then, using a case study model, it examines ethical issues that often develop during dual representation in three areas of the permanent labor certification process: (1) employee termination during the PERM process; (2) determining the actual minimum requirements for the position; and (3) conducting “good faith” recruitment.

Case Study One examines how organizational representation is restricted by the rule governing concurrent conflicts of interest, requiring attorneys to withdraw from representation if an employee secretly discloses their intent to leave a company. Case Study Two considers how the regulatory requirements behind determining the actual minimum requirements for the sponsored position may require an attorney to advise an employer against including requirements they actually considered when hiring the foreign national employee if they cannot be supported by adequate evidence of business necessity. Case Study Two also highlights the potential to use Appendix C of the revised PERM application to reduce the risk associated with using more advanced job requirements. Lastly, Case Study Three explores the implied requirement to conduct recruitment for permanent labor certifications in good faith. Case Study Three examines the scope of the good faith recruitment standard and explores how to help employers navigate a process that appears to be at odds with the interests of their foreign national employee.

This Article is especially important now given the uncertainty that plagues the U.S. immigration system. Clients are worried about the security of their immigration status, which pressures attorneys to cut corners to try and ensure the success of a matter. This pressure is heightened in the context of the permanent labor certification, which is often the only way for a foreign national to obtain permanent residence in the United States. However, this Article encourages attorneys to balance all of the interests involved in permanent labor certifications to avoid conduct that may be intended to help clients, but that could actually lead to case failure, financial penalties, or even disciplinary action. While this Article is timely to the modern revisions of the PERM application and the legal settlements coming from the federal government, it provides attorneys with a model for examining ethical issues that arise during permanent labor certifications that has long-term applicability.

Olivia Shaw

Senior Legal Analyst
FordMurray Law