Bloggings On Dysfunctional Government
One of the most durable historical myths, Potemkin's villages, involves the trompe-l'œil hamlets purportedly created at the direction of Grigory Potemkin to impress Catherine II during her 1787 trip to Crimea. If director James Cameron of Avatar fame were to reimagine and modernize the fable of Potemkin's villages, he might well place the story, in 3D no doubt, at the Frances Perkins Building on Constitution Avenue in Washington DC.
There a unit of the Department of Labor (DOL), the Employment Training Administration (ETA), maintains its Office of Foreign Labor Certifications (OFLC) whose mission, in part, is the administration of the nation's permanent labor certification program. This ETA program, bearing the acronym, PERM (Program Electronic Review Management), is a veritable Potemkin village of black-box bureaucracy featuring repeatedly non-functional technology, secret algorithms and surreptitious data mining.
For the uninitiated, a labor certification, as DOL has structured it, is a recruitment exercise imposed on employers to see if there are any able, willing, qualified and available American workers in a particular U.S. metropolitan area. If the recruitment is conducted under DOL-mandated steps, yet fails to find a suitable U.S. worker, the Secretary of Labor will certify the failure. Thus, the Secretary's certification acknowledges that the grant of permanent residence to a sponsored foreign citizen will not adversely affect the wages and working conditions of similarly employed workers in the United States.
DOL inaugurated PERM in 2005 for two stated reasons: (1) to use automation to winnow a backlog of paper-based applications for labor certification that went back five years in many cases, and (2) to address the concern of the DOL's Office of Inspector General (OIG), expressed in a 2004 report, about "the vulnerability of DOL's foreign labor certification programs to fraud by non-traditional, transnational organized crime groups." Perhaps more than owing to worries over global crime syndicates, DOL seems to have devised PERM because it had been hoodwinked and humiliated by a Virginia lawyer, Samuel Kooritzky, into approving hundreds of bogus labor certifications, the same lawyer who had defeated the agency in federal court and thus secured an order that preserved the (now-extinct) practice of substituting one foreign national for another on an approved labor certification.
DOL's worries about fraud in the PERM program persist. Listed among the "2011 Top Management Challenges Facing the Department of Labor" is the need to "maintain the integrity of the foreign labor certification programs":
ETA is challenged to ensure the integrity of the [Foreign Labor Certification] programs it administers. OIG investigations continue to uncover schemes carried out by immigration attorneys, labor brokers, and transnational organized crime groups. OIG investigations have repeatedly revealed that fraudulent applications filed with DOL on behalf of fictitious companies, as well as schemes wherein fraudulent applications were filed using the names of legitimate companies without the companies’ knowledge.
To address the apparently widespread incidence of labor certification fraud, DOL is piloting a "new risk management model [which] allows ETA to assign risk ratings to individuals applying to its PERM program and spend the appropriate amount of time reviewing the higher risk applications and reducing overall reviewing timeframes." (Source: DOL "Agency Financial Report for Fiscal Year 2011," p. 181.)
The evidence DOL cites, however, does not back up its exuberant claims of a PERM program rife with fraud. The Highlights of the DOL OIG's Semiannual Report to Congress mention only two, admittedly egregious, cases: a family that used 11 staffing companies to import over 1,000 H-2B nonimmigrants; and an attorney employed by U.S. Immigration and Customs Enforcement convicted of a slew of federal crimes including labor certification fraud. Another report, the DOL's "Permanent Labor Certification Debarment List," names only nine entities and individuals who are prohibited, by virtue of serious regulatory violations, including fraud, under 20 CFR 656.31(f), from participating in the PERM program. To place these reported incidents of fraud in context, consider that, according to the notes of an October 5, 2011 OFLC Stakeholders Meeting (AILA InfoNet Doc. No. 11102768), DOL has adjudicated year to date a total of 73,000 PERM applications.
Despite the absence of evidence from DOL showing that PERM fraud proliferates, ETA is developing a new and growing backlog. The new queue is attributable to the increasing number of DOL audit requests (which extend the life of the average PERM case from three to eight months, according to DOL's published processing times) and orders for "supervised recruitment" -- the pre-2005 system of agency-micro-managed recruitment that PERM was devised to replace. This back-to-the-future backlog requires the hiring of third-party contractors and their newly recruited workers. It also creates lengthy processing timespans that DOL declines to publish.
No one suggests that fraud is non-existent or that ETA's Fraud Detection and Prevention unit (oh heavens, another FDNS!?) should not try to maintain PERM program integrity. Rather, DOL should tone down its group defamation and burdening of law-abiding lawyers and businesses by lumping them in with unnamed "immigration attorneys, labor brokers, and transnational organized crime groups". Instead, if DOL wants to make real strides at fraud prevention in 2011, it should finally do what lawyers proposed in 2005 and at last prohibit notarios and consultants from representing employers and foreign nationals in PERM applications:
Despite two detailed comments suggesting that [non-lawyer] agents should no longer be allowed to represent the parties to a labor certification because their conduct constitutes the unauthorized practice of law and is prohibited in all 50 states, the DOL [has] allowed agents to continue practicing before the agency. The DOL reasoned that the agency has always allowed agents to file labor certification applications and to bar them now ''may have serious consequences'' for individuals serving as agents. 69 Fed. Reg. at 77,336 (supplementary information).
Source: Angelo A. Paparelli, "Policy Choices Driving the Labor Department's New PERM Rule," 10-5 Bender's Immigr. Bull. 1 (May 1, 2005).
The DOL's preoccupation with unsubstantiated fraud is not merely an academic concern. As reported in a recent poll by the Society for Human Resource Management (SHRM), over 50% of organizations are finding it difficult to recruit "skilled workers for specific job openings, with engineering, medical, technical and executive positions especially hard to fill."
American businesses are facing a paradox — high unemployment and the inability to fill key jobs in their organizations. Our research shows that gaps between unemployed American workers’ skills and those required for open jobs in the United States are a major reason for this seemingly unlikely contradiction. It follows logically that if key jobs cannot be filled in organizations, then other less critical jobs requiring less skill cannot be created either because the organizations’ growth potential is stunted. Thus, the cycle of low or no job growth continues.
The requirement to secure a DOL labor certification as a prerequisite to an employment-based green card was established by Congress to protect U.S. workers. Yet, ironically, the Department charged with the duty to protect U.S. workers and certify job shortages has erected a false front of supposedly virulent, but unproven fraud, an apparition worthy of Potemkin, to mask its maladministration of the DOL's dubiously conceived and backlog-regenerating PERM program.
Angelo Paparelli is a partner of Seyfarth Shaw LLP. Mr. Paparelli, with a bicoastal practice in Southern California and New York City, is known for providing creative solutions to complex and straightforward immigration law problems, especially involving mergers and acquisitions, labor certifications and the H-1B visa category. His practice areas include legislative advocacy; employer compliance audits and investigations; U.S. and foreign work visas and permanent residence for executives, managers, scientists, scholars, investors, professionals, students and visitors; immigration messaging and speech-writing; corporate policy formulation; and immigration litigation before administrative agencies and the federal courts. He is frequently quoted in leading national publications on immigration law. He is also President of the Alliance of Business Immigration Lawyers, a 30-firm global consortium of leading immigration practitioners. Paparelli’s blog and a comprehensive list of his many immigration law articles can be found at www.entertheusa.com. He is an alumnus of the University of Michigan where he earned his B.A., and of Wayne State University Law School where he earned his J.D. Paparelli is admitted to the state bars of California, Michigan and New York.
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