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Immigration Daily June 16, 2008
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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
    What do Robert Banta, Ron Gotcher, Angelo Paparelli, Wolfsdorf Law Group and dozens of others have in common? They tried our online competitors but switched to ImmigrationTracker. With easy screens, reliable immigration content, helpful US-based support teams -- Tracker has what you need, including the only proven choice of in-office or web-based product lines. Even our prices make us a better value. Contact us today to see why everyone is switching. Reserve your private demo: Call 1-888-466-8757 ext. 278 or email sales@immigrationtracker.com.

    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.

    Publisher:  Sam Udani    Legal Editor:  Michele Kim                        ISSN:   1930-062X


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