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Comment
DOL Puts Foot In Mouth
In an unprecedented action by DOL, all PERM applications involving attorneys
at the Fragomen law firm are being audited. This punitive action is directed
at the largest filer of PERM cases in the country. See the ETA news release
issued June 2nd here and a DOL Information Paper issued June 4th here. (For
the cognoscenti, the significance of the dates and the organizations is as
follows: ETA committed itself publicly to this action on 6/2, and in some
shape or form, ETA came under attack subsequently. In the ensuing fracas,
ETA convinced its parent organization to back it, and DOL did so on 6/4. In
other words, the political action behind the scenes has escalated over the
last few days from the level of Assistant Secretary to cabinet-level.)
The ETA and DOL documents are replete with misstatements, misconstructions
and outright whoppers. Rather than deconstructing the documents bit-by-bit,
we take a look at the central issues in the matter below (for the sake of
simplicity, the two documents are combined herebelow for reference as one,
viz., DOL/ETA). There are three major points: (1) What is the proper role of
an attorney in counseling an employer during the labor cert recruiting
process? (2) Why is DOL doing this and what will happen in the coming weeks
and months? (3) Where do we go from here? Where does the bar go? Where does
the US worker go? In analysing the three issues above, lets get one thing
out of the way at the outset. DOL/ETA claims that "several recruitment forms
drafted by some Fragomen attorneys instructed their clients that 'After
interview, should any of the applicants appear to be qualified for the
position, please contact a Fragomen attorney immediately to further discuss
the candidate's background as it relates to the requirements stated for said
position,' or some variation thereof." In our analysis, we are leaving aside
the awkwardness/inelegance of the language quoted, and the very real
possibility that this quote was taken out of context (also left aside is the
specific issue of facts - none of which in any event have been found yet,
that ostensibly is what the audit process will unearth - in any organization
of over a thousand people, some mistakes are bound to occur - whether that
organization is DOL itself or a law firm).
(1) What is the proper role of an attorney in counseling an employer during
the labor cert recruiting process?
DOL/ETA says:
... the firm improperly instructed clients who filed permanent labor
certification applications to contact their attorney before hiring
apparently qualified U.S. workers ... The Department's regulations
specifically prohibit an [] immigration attorney [] from participating in
considering the qualifications of U.S. workers ... there is no legitimate
reason to consult with immigration attorneys before hiring apparently
qualified U.S. workers who have responded to recruitment required by the
permanent labor certification program ... The Department's rule safeguards
against the use of attorneys to find reasons not to hire U.S. workers that
the employer would, but for the attorney's involvement, deem qualified ...
The rule applies only to consideration of particular applicants, and does
not bar employers from seeking general advice on the meaning of "qualified"
in the context of a labor certification application.
While it may be news to DOL, DOL's unique concept of "minimally qualified"
is unfathomable to employers out here in the real world. Attorneys struggle
mightily, and usually without success, to explain DOL's unique gobbeldygook
concerning the proper standards of conducting a labor cert recruitment. The
tried-and-true standards used by employers throughout America - motivation,
personality, attitude, and a host of subjective factors - are not permitted,
and attorneys have to explain, in gruesome detail applied to particular
resume after particular resume, how to apply DOL's Through-the-Looking-Glass
procedures. Two illustrative examples suffice: "No, you may not consider a
US worker over-qualified" (this completely mystifies employers); "Yes, I
know you like this US worker without a Bachelor's degree on subjective
grounds because she has a great personality, however you stated that a
Bachelor's degree for this position was an objective minimum requirement, do
you want to change the requirement and refile a new application for PERM
without the degree and hire this US worker in a newly created position, or
do you want to lose the alien? (this doctrine of "diversion" in DOL-speak
also completely mystifies employers). Outside of the immigration context,
Employment Lawyers counsel employers every day on proper recruiting
procedures applied to specific applicants to assist the employers in
following the proper legal standards (e.g. anti-discrimination provisions in
the Americans with Disabilities Act). Perhaps DOL believes that in all such
applicant-specific cases, lawyers should give only "general advice", and in
particular cases, the employers should be left high and dry by their
counsel. The PERM rule at 20 CFR 656.10(b)(2)(i) says attorneys may not
"interview or consider" US workers, it does NOT (and cannot) prohibit
attorneys from counseling employers about the proper legal procedure and
standards to apply to particular applicants.
(2) Why is DOL doing this and what will happen in the coming weeks and
months?
Within the last year, DOL/ETA re-structured its operations at its offices in
Atlanta and Chicago, and also promulgated a so-called "fraud rule" covering
substitutions, purchase/sale of PERM applications, etc. During the moving around of the various
H2B/H1B/PERM, etc units, it is likely that an "anti-fraud" unit was created.
Instead of going after the countless UPL operators who prey on immigrants in
many parts of the country, this unit has now found a convenient target in
the nation's largest immigration law practice. However, this is an issue
larger than immigration law. The employment bar will likely view this as of
concern, and we hope that some of our readers in that bar (and within ABA)
will get involved in expressing that concern. Employer groups including the
Society for Human Resource Management, the US Chamber of Commerce, the
National Association of Manufacturers, etc will also likely view this
stripping by DOL of their right to counsel with alarm. It is further
entirely possible that the Department of Commerce will view this (correctly)
as a threat to American competitiveness and suggest to DOL to pull in its
horns. Knowing how things work in Washington, all the above will help, but
it may not settle the matter. To settle the matter, it is likely that
Congress will get involved, in the months to come. It is quite possible that
DOL did not see all this coming when it decided to give its anti-fraud staff
a workout.
(3) Where do we go from here? Where does the bar go? Where does the US
worker go?
DOL/ETA says:
Where an employer does not normally involve immigration attorneys in its
hiring process, there is no legitimate reason to consult with immigration
attorneys before hiring apparently qualified U.S. workers who have responded
to recruitment required by the permanent labor certification program ... The
rule applies only to consideration of particular applicants, and does not
bar employers from seeking general advice on the meaning of "qualified" in
the context of a labor certification application.
The real issues here are not one specific firm, and not even the proper role
of immigration lawyers. The real issue is that DOL took the gloves off a
year ago, and is determined to attack the bar. The anti-fraud rule illegally
interfered with the attorney-client relationship, and these audits by DOL
are more steps in the same direction. To its credit, AILF sought plaintiffs to
litigate DOL's illegal rule, unfortunately, no one stepped forward. In a
similar situation in the 1980s, attorney Dale Schwarz was targetted by
federal agents with a wire on (he was fully exonerated subsequently) also on
a labor cert matter. At that time, a young lawyer named Ira Kurzban stepped
forward to lead the bar on this important issue. His election to the highest
elective position available to an AILA member (President-Elect, he ran by
petition) marked the first and so-far only time such an event occurred in
the bar. Similar leadership is once again needed.
DOL/ETA says:
"The department's decision to further investigate these applications will
help ensure the integrity of the permanent labor certification process and
ultimately protect job opportunities for American workers," said Gregory F.
Jacob, solicitor of labor. "The department takes seriously its
responsibility to ensure that American workers have access to jobs they are
qualified and willing to do ... "
If DOL harrasses large employers enough, they will simply move the jobs
overseas. Far from ensuring that American workers have access to jobs, DOL's
actions, if continued along this trajectory, will only ensure that
American jobs are destroyed. Moving the jobs overseas will be an
inconvenience for large employers for sure, but the impact on the lives of US
workers will be catastrophic.
As all the above has surely made clear, this is hardly the last we have
heard of the matter. Further developments are to be expected, stay tuned to
Immigration Daily!
We welcome readers to share their opinion and ideas with us by writing to editor@ilw.com.
Focus
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Article
Child Status Protection Act (CSPA) – Review Check List
Joseph B. De Mott and Thomas Esparza, Jr write "Presented as a source to my colleagues and friends."
Bloggings: June 5, 2008
Greg Siskind shares the latest entries to his blog.
To submit an Article for consideration, write to editor@ilw.com.
News
DOL Releases Information Paper On Fragomen Labor Certs Audit
DOL released an information paper answering questions on the audit of permanent labor certification applications filed by attorneys at Fragomen, Del Rey, Bernsen & Loewy LLP.
DHS Issues FAQs And Fact Sheet On ESTA
DHS released FAQs and a fact sheet on Electronic System For Travel Authorization. See here for the FAQs, and see here for the fact sheet.
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Headlines
Immigration Group Receives Death, Bomb Threats
Recent threats of violence directed at a local immigrant advocacy group are now under investigation in Maryland.
AWC Art Professor Exhibits Work In Chicago
A series of clay sculptures that earned an Arizona Western College professor first-place honors in a Texas art exhibition is now featured in an immigration-themed art show at Loyola University, Chicago.
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Immigration Event - Washington, DC
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Letters
Readers are welcome to share their comments, email: editor@ilw.com (300-words or fewer preferred). Many letters to the Editor refer to past correspondence, available in our archives.
Dear Editor:
Roger Algase's letter's (06/03/08 ID) criticism of Mr. Roberts' letter (06/02/08 ID) is slightly off-base, and unfortunately gives Mr. Roberts' letters some room to rationally continue their fantasism about the Southern threat. Aztlan is not a myth--it is, however close. Like people who focus on the supposedly dire threat neo-Nazis and organized racists pose to the Republic, those terrified of Aztlan overemphasize the importance of a few kooks and get into an excessive dither. Yes, young punks do indeed publish all sorts of horrid insurrectionist plans. many of them even kill people, but not in meaningful furtherance of said plans, but in furtherance of their own criminality and social pathology. Even members of the incredibly racist-sounding group La Raza generally are oblivious to the worst ideological flourishes, or use them to assuage guilt over having escaped the social and economic backwardness of Mexico. Like most kids who inherit money from their parents and feel bad about it, most of these people get over it too. I do not mean to minimize problems posed to assimilation by a large population of semi-legal residents and those sections of "the helping professions" whose livelihood depends upon maintaining their segregation from normal America, but keeping those problems in perspective would be helpful.
Impressively, Mr. Algase's letter (06/04/08 ID), recognizes the existence of "empty rhetoric" about "retaking" what had been Mexico's underdeveloped, lawless empty quarter before it was incorporated into these United States. Mr. Roberts' letter's sidling up to paranoid vicious anti-Semites in defending some of the points from the Protocols is similarly, probably more empty, and we can hardly ask his letters to calm down without treating racists "from the other side" as beyond the Pale (pun intended) too, or, better yet, explaining why some of their fears are unfounded.
Honza Prchal
Dear Editor:
In response to Mr. Algase's letter (06/04/08 ID): Whether a forgery or not, "Protocols" does specify the goal of the end
of nation hegemony, borders and other barriers in favor of a global NWO
"plantation" with modern masters and slaves. What better method to
accomplish this transition than by making a mockery of traditional,
limited and selective immigration which can be beneficial and
advocating, excusing or ignoring excessive or open entry which is
destructive? Constant rants of prejudice, intolerance, racist, and hate
certainly move this process along. Many groups and individuals today are
ignorantly effecting or knowingly pursuing these goals, here and in
other Nations. The Atzlan Reconquista movement, like any invasion,
depends upon numbers, most of which are not vocal advocate leaders, but
they certainly don't mind the separatist culture that follows them. The
Cuban city of Little Havana in Miami is now 94% Hispanic and speak
Spanish, while in the 50's the County was 80% white. The same is going
on in CA and other states. What is "equal" about this? The winners in
wars or conflicts are determined by who occupies the land. The topic of
egalitarianism is very complex. While we may all be created equal in
the eyes of God or the Law, the negative factors seem to arise in the
Economic area. Socialism and Communism are extreme forms of this
doctrine with material equality for all which requires coercive
mechanisms to redistribute the wealth. See: "Egalitarianism as a Revolt
Against Nature" by Murray Rothbard, and: "The Illusion of
Egalitarianism" by John Kekes. Rothbard also wrote: "The Ethics of
Liberty" which is the highest, endearing value upon which the unique,
fragile experiment upon which America is based or should I say was?
Jim Roberts
An Important disclaimer! The information provided on this page is not legal advice. Transmission of this information is not intended to create, and receipt by you does not constitute, an attorney-client relationship. Readers must not act upon any information without first seeking advice from a qualified attorney. Copyright 1995- American Immigration LLC, ILW.COM. Send correspondence and articles to editor@ilw.com. Letters and articles may be edited and may be published and otherwise used in any medium. The views expressed in letters and articles do not necessarily represent the views of ILW.COM.
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