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Comment
DOL In A Hole
DOL has clearly been taken aback by the bar's reaction to DOL's
over-reaching in auditing every single PERM application by the nation's
largest immigration practice. The bar, quite correctly, saw DOL's action
both as fundamentally unfair, and also as targeting, over time, the entire
bar, not just one firm.
DOL has therefore been under pressure to "clarify" its view of the
attorney's role in the recruiting circus which DOL has established in labor
certification. Accordingly, DOL released today a document styled "PERM
Program Guidance Bulletin on the Clarification of Scope of Consideration
Rule in 20 CFR 656.10(b)(2)" (which, presumably, DOL will incorporate into a
future FAQ, unless it seeks to further complicate its procedures in offering
guidance to its customers on its own regulations).
DOL's tone is clearly on the defensive throughout this document, reflecting
no doubt, the political pressure at DOL to somehow finesse itself out its
current predicament. The predicament is that DOL's PERM audits are largely
for show - DOL does not have sufficient resources to audit in the way it
recently has been. A recent estimate at an ILW.COM seminar by a
knowledgeable member of the bar based on experience at a large law firm is
that DOL is currently auditing about 40% of PERM applications. We do not
believe that DOL has the staff to conduct so many audits. In all likelihood,
DOL does not have the staff to audit even all the applications filed by the
Fragomen firm. This would explain DOL's desire to issue a press release when
beginning its audit on Fragomen-filed PERM applications - DOL's bark is
worse than its bite, so it tried to bark as loudly as possible (and in the
process targeted a law firm unfairly). Clearly, DOL has lost the PR battle,
and wants a face-saving way out.
However, the statute and the regs remain on the books, and DOL continues to
make statements that make no sense. In particular, in its most recently
released document, DOL says "The employer, and not the attorney or agent,
must determine whether a U.S. applicant's credentials meet the minimum
qualifications for the position ..." Since common-sense does not exist in
DOL-land, the following needs to be said. In the PERM application, the
employer, by specifying an alien beneficiary, has already declared to DOL
that as of the time of beginning the PERM process, the employer intends to
fill the position with the alien (provided the employer can do so lawfully).
To the extent that DOL requires the employer to conduct a good-faith test of
the labor market, and further requires that US workers be rejected only for
lawful job-related reasons, to that extent, no US employer is competent to
do this itself. This is precisely why a US employer must employ counsel
(either in-house or out-house) to on the one hand ensure that only lawful
job-related reasons are used to reject US workers, while on the other hand
maintain good faith throughout. Without a competent attorney's help, no US
employer can keep a straight face while in DOL's recruiting circus, DOL
fantasies as to employers' abilities notwithstanding. As a practical matter,
therefore, a US employer must remain in constant touch with counsel
throughout the entire recruiting process, and must go through each resume
with counsel, to understand how to apply DOL's above-stated bizarre
standards, in defiance of any logic, and somehow achieve DOL's requirements
so as to make a truthful attestation.
In the most recent document, DOL further states:
"After the evaluation of applications by the employer has been completed,
the employer may consult with its attorney or agent about the implications
of its qualification determinations on the labor certification application.
Those consultations can encompass the question of whether applicants who
were found by the employer to be unqualified were rejected for lawful, job
related reasons. Under no circumstances, however, should an attorney or
agent seek to dissuade an employer from its initial determination that a
particular applicant is minimally qualified, able, willing and available for
the position in question."
It would be a great surprise to find a US employer who can evaluate the
applications at all without competent attorney guidance at every stage of
the evaluation (if there exists a US employer who understands what
"minimally qualified" means without benefit of counsel, please step forward
for your applause). This is so since the standards that the US employer is
required to use, viz., (a) good faith and (b) rejections of US workers to
only be for lawful, job-related reasons, are impossible for any US employer
who is dragged into this circus only after having already concluded that the
desired end is hiring a specific alien beneficiary. Only Herculean efforts
by counsel keep the employer to a good faith standard (most employers would
rather throw every resume received in the garbage can - and therefore if DOL
is truly after fraud in the PERM program, it should audit ONLY applications
where an attorney has not made an appearance), and therefore, as a practical
matter, most discussion between counsel and US employer consists in
explanations of lawful, job-related reasons for denial. Employers have no
clue as to the plethora of legal means of rejecting US workers (see a
slightly dated article on the subject), and equally, employers believe that
they are entitled to reject US workers on a plethora of unlawful grounds
(bad attitude, bad personality, over-qualified, etc). DOL seems to suggest,
in this document, that while it is proper for lawyers to counsel their
clients on the latter, it is improper for lawyers to counsel their clients
on the former. The problem is that these two are inseparable in the
employer's minds (and the further problem is that employers have right to
counsel on both counts, DOL's wishes to the contrary unavailing). Unless DOL
can supply a special vitamin to fortify employers' limited mental abilities
in following gobbledygook in DOL's Alice in Wonderland PERM circus (such as
"minimally qualified" which exists only in DOL's fantasies and not in the real
world), DOL has no alternative to leaving the bar free to give unfettered
advice to its clients. If DOL is interested in rooting out fraud, DOL should audit PERM applications submitted without benefit of
counsel.
As we have mentioned before, this has been a developing story, and
Immigration Daily will remain on top of it. DOL has made a big mistake in
taking the bar on over this matter. DOL has a stark choice here - eat crow
now, or be prepared to eat more crow later.
We welcome readers to share their opinion and ideas with us by writing to editor@ilw.com.
Focus
The H-1B Book Shipping Now
THE H-1B BOOK 2008-2009 Edition, Editor Karen Weinstock, is shipping now. The Table of Contents is as follows:
Chapter One: Interview The Client
- Qualifying the Position as a Specialty Occupation
- Qualifying The Employee
- Meeting Wage Requirements
- Lawyer's H-1B Consultation Questionnaire Form
- Lawyer's H-1B Task Checklist
Chapter Two: Send The Client Intake Forms And Related Information
- Intakes Summary
- H-1B Employer Intake/Questionnaire Form
- H-1B Worker Intake/Questionnaire Form
- The Complete H-1B Process: Company Flowchart
- The H-1B Process: Company's Step-By-Step Explanation
- Explanation and instructions for spouses and
children
Chapter Three: Credentials: Verify That The Worker Has A US Bachelor's Degree Or Equivalent
- Credentials Summary
- If the worker has a U.S. degree - no evaluation is
necessary
- If the worker has a foreign degree - order credentials
evaluation
- If the H-1B petition is based on work experience or
combination - order a work experience evaluation
- List of credentials evaluation firms, web sites and phone
numbers
Chapter Four: Determine The Prevailing Wage
- Understanding the Prevailing Wage
- Determining the Prevailing Wage
- O*NET, SOC, Wage Levels, Job Zone and SVP
- SESA or SWA Wage Determination
- FLC Data Center Wage Determination
- Wage Determination Through Other Wage Surveys
- Practice Examples in Determination of the Prevailing
Wage
Chapter Five: Prepare And File The Labor Condition Application (LCA)
- Introduction to the Labor Condition Application (LCA)
- Preparing and filing the Labor Condition Application (LCA)
- Online LCA filing
- Complete Online LCA and Receive LCA Approval Online
- Completing the LCA: Step by Step
- H-1B Dependent Employers Worksheet for the LCA
- Detailed Description of Form ETA-9035E and its Obligations
- Sample of completed LCA (form ETA-9035E)
- Copy of form ETA9035CP (LCA cover pages)
Chapter Six: Prepare The I-129, Related Forms And Petition Letter
- Form I-129
- H supplement to Form I-129
- Form I-129 H-1B Data Collection Supplement
- Form G-28
- Form I-907 if premium processing is applicable
If the H-1B worker has a spouse and/or children:
- Form I-539
- Form I-539 Supplement 1 (if necessary for other family
members)
Chapter Seven: Send All The Forms And Petition Letter To The Client For Review & Signature
- Sample letter to client
- LCA posting notice
- Sample Letter to Employer Regarding Public Access File
- Memorandum to employers on Labor Condition Application
- Public Access File sample
Chapter Eight: Assemble The H-1B Petition And Send To The USCIS Service Center
- General Filing Instructions (including list of service centers and filing addresses)
- Sample Cover Letter
- H-1B Petition document checklist
- Sample list of exhibits
Chapter Nine: Troubleshooting
- Introduction
- Request for Additional Evidence
- Dealing with the dreaded request for evidence
- Sample Response to Request for Additional Evidence
- Second Example of Response to Request for Additional Evidence
- I-9 Compliance, Social Security Numbers and Driver's Licenses
- Changes in H-1B Employment and Amendments
- How Mergers, Acquisitions and other corporate Transactions Affect the H-1B
Chapter Ten: Post-Approval Case Management
- Summary of Post-Approval Issues
- Sample H-1B Approval Letter to Employees that are in the U.S.
- Sample H-1B Approval Letter to Company - Employee(s) Abroad
- Sample H-1B Approval Letter to Employees Abroad
- Non- Immigrant Visa Consular Processing Information Sheet
For more information about the book and to order, see here. For the fax form, see here.
Article
The Social Security Administration No-Match Program: Inefficient, Ineffective, And Costly
Marielena Hincapie, Tyler Moran, and Michele Waslin of the Immigration Policy Center write "The purpose of the no-match letter is to clean up the ESF and ensure that workers receive credit for their earnings. not only have the letters proven to be an ineffective means of achieving this goal, but they also have resulted in many unintended negative consequences for workers, employers, and SSA itself."
Immigrants Of The Week: Henrik Zetterberg, Huda Zoghbi, and Akihiko Hoshide
Greg Siskind celebrates contributions of these outstanding immigrants to America.
To submit an Article for consideration, write to editor@ilw.com.
News
USCIS Issues 2-year EADs
USCIS announced that beginning on June 30, 2008 it will issue Employment Authorization Documents (EAD) valid for two years and issued a fact sheet on the subject. See the announcement here and see the fact sheet here.
USCIS Answers National Stakeholder Questions
USCIS published its responses to national stakeholder questions from its May 27, 2008 USCIS National Stakeholder meeting.
DOL Issues Bulletin On Role Of Counsel In Labor Certs
DOL issued a Program Guidance Bulletin on the clarification of scope of consideration regarding role of counsel in labor certifications.
Classifieds
Help Wanted: Immigration Paralegal
New York, NY - Levitt & Needleman, P.C., a 13 person midtown immigration law firm, seeks immigration paralegal with 2+ years of experience with business applications: nonimmigrant and immigrant. Experience with family based, naturalization,
and other applications a plus. Ideal candidate has BA degree, is detail
oriented, organized, and conscientious. Candidate must also possess
excellent writing, communication, and case management skills. Competitive
compensation package offered.
Email resume and cover letter in MS Word format to:
mneedleman@levittandneedleman.com.
Help Wanted: Immigration Paralegal
Pittsburgh, PA - Fujitsu Consulting, an international IT services
and consulting company, seeks an immigration paralegal for its in-house
immigration department. The paralegal will participate in all aspects of
the department's employment-based immigration practice. Candidates must be
detail-oriented, possess solid writing skills, and be capable of
working in a fast-paced and deadline-driven environment. A bachelor's or
higher degree is required. Experience as an immigration paralegal is preferred, though not required. Salary is competitive. All qualified applicants are
invited to apply. Please email your
resume to Joseph.Kranyak@us.fujitsu.com. EOE.
Help Wanted: Immigration Paralegal
New York, NY - Bretz & Coven, LLP, a fast-paced Manhattan immigration law
firm, seeks experienced paralegal able to speak English and at least one
other foreign language (Hindi, Spanish, Creole French, etc.). Qualified
candidates must have 2+ years of diverse immigration
experience. The position requires heavy contact with clients. Requirements
for this position include strong written and oral communication skills,
attention to detail, organizational skills, ability to meet deadlines,
interpersonal skills, team-mindedness, customer service skills, PC skills,
ability to handle multiple tasks at the same time, and ability to work under
pressure. Please e-mail your resume, salary requirements & writing sample
to jobs@bretzlaw.com.
Help Wanted: Immigration Paralegal
Lexington, KY - Stoll Keenon Ogden PLLC, a large Kentucky law firm, seeks employment-based immigration
paralegal/case manager. Position requires strong organizational, writing, communication, and computer skills. Experience preferred in H-1B, L-1, PERM, and I-140 cases. Spanish or Japanese language skills considered a plus. Salary commensurate with experience. Competitive benefits. Great work environment. Please email your resume and salary
requirements to denise.wilson@skofirm.com. EOE.
Help Wanted: Immigration Attorney
Cerritos, CA - The Chugh Firm, a mid-size law firm, seeks business immigration attorney with a minimum of 3 to 5 years experience in employment-based immigration. Email
resume to jyoti.singh@chugh.com.
Position Sought
Experienced immigration specialist seeks immigration contract work for immigration law firms on a
telecommute basis. Possess 10+ years experience in law firm environment
and corporate environment managing the immigration department with primary
responsibility for all phases of immigration processing and administration.
Provides a wide range of immigration support services to immigration
attorneys and organizations including, but not limited to: preparation of
all IV and NIV documents and support letters (B, H, E, L, TN, O, P, PERM and
PR), onsite I-9 and Public Access File auditing services to ensure corporate
compliance with labor and immigration regulations, and coordinating visa
applications requiring host-country filings. Resume, writing sample, and
references available upon request. Email: imm.specialist@gmail.com.
Case Management Technology
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EB-5 Business For Sale
US EB-5 opportunity - Lumber manufacturing, Barnes Manufacturing Co., Kenbridge, VA, Lunenburg County. $2.7 million USD. No debt or inventory included. To view pictures and an appraisal report, see here. To discuss further, contact Thomas Barnes at: barnestb@earthlink.net or call 434-955-0595 (after 10 am EST). All inquiries will be kept confidential.
Headlines
In Congress, H-1B Issue Pits Tech Workers Against Farm Groups
A hearing today illustrates why tech groups are blocked on this issue
Flag Day Celebrates The Gift Of Immigrants
If we could research the lives of those who became citizens in 1944 and the lives of their families, chances are good that they have labored to make America a better country.
comingsNgoings
Readers can share their professional announcements (100-words or fewer at no charge), email: editor@ilw.com. Readers interested in learning about featuring your event or conference in Immigration Daily, see here. To feature your newsletter in Immigration Daily, see here.
Immigration Event
June 19 - Rights Working Group is pleased to presents "Night of 1,000 Conversations", gatherings of people across the country to discuss how the overreach of the Department of Homeland Security (DHS) is undermining the civil liberties and human rights of people living in America. For more info, see: http://www.nightof1000conversations.org/
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:
Jim Roberts's letter (06/13/08 ID) clearly misunderstands migration and animal and human instinct. If an area floods andbecomes uninhabitable people and animals seek higher ground. See old news footage on Hurricane Katrina for more
proof of my "specious argument". People don't "choose" disaster. I see no correlation between bank robbery and survival instinct. War, famine, flood, fire, economic deprivation all cause Humans migration. I am not sure
how you can argue Survival Instinct is anything but a force of nature. Thomas Jefferson referred to survival (self sustinance) as a "natural right". Immigration Policy should be in harmony with the natural order of things.
There is no logic in disrupting the established institution of Marriage and the resulting nuclear family. Immigration policy can be managed intelligently, compassionately and in accordance with the natural order of things and Gods will.
Spiritually speaking I see no biblical grounds for jailing migrant workers, refugees, or asylum seekers. Contrarily God gave us these suggestions; "The stranger who sojourns with you shall be to you as the native among
you, and you shall love him as yourself; for you were strangers in the land of Egypt: I am the Lord your God." Leviticus 19:34.
Janet Fitzgerald
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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