<<<<< JOB DESTRUCTION NEWSLETTER No. 1875 -- 6/05/2008 >>>>>

An immigration law firm appears to be in the DOL doghouse. On June 2nd the
Dept. of Labor claimed that Fragomen, Del Rey, Bernsen & Loewy LLP might
have helped companies to hire foreigners even when there were qualified
Americans. The DOL said they are going to audit all of Fragomen's permanent
labor certification applications to see if anything illegal or improper was
done.

FOLKS, KEEP YOUR EYES ON THE BALL!

Pay close attention, because the DOL isn't going to look at their H-1B,
H-2B, L-1, O, or whatever other visas Fragomen handles, just EB green
cards. This investigation might resemble an Inspector Clouseau sequel.

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It's a perplexing allegation because that's what immigration lawyers do --
they coach employers on how to exploit the loopholes in the law, and how to
avoid hiring more expensive Americans. It's no different than you hiring an
expert at H&R Block to do your taxes because their experts know the tax
loopholes. There is nothing illegal about hiring an expert, and I would be
surprised if Fragomen broke the law.

Just so you understand the entire process and the source of the DOL
complaint, let me explain the permanent visa system in 5 easy steps:

1 -- Employer decides to hire a cheap foreigner on an EB green card, or
they want to convert one of their low wage H-1B or OPT employees to a
permanent resident. At this early stage the employer has no intention of
hiring an American.

2 -- At this point they may use an immigration lawyer to fill out the
paperwork, or they may have a hack at their HR department do the grunt
work.

3 -- Employer places a phony ad in the newspaper in order to claim they
looked for an American. This gives them a paper trail in case they get
audited.

4 -- Sometimes employers are unlucky because they get resumes from
qualified Americans. In order to cover their butts they send all resumes
they receive to the law firm, or they ask the lawyers how to legally reject
the resumes. The law firm figures out how to disqualify each and every
American resume so that the company isn't bothered with doing fake
interviews, or with inquisitive do-gooders from the guvment. It's this step
in the process that the DOL seems to be having a problem with -- they
contend the lawyers are doing too much coaching. The lawyers call this
their "Right to Counsel." Frankly speaking, lawyers and employers do have
that right, so unless the DOL has more to hassle Fragomen with, their case
will fall apart.

5 -- The visa is rubber stamped by the DOL, and everybody is happy except
the American who never had a chance to get the job. Many of us in the real
world call this "getting screwed".

The DOL's investigation is probably much ado about nothing because Fragomen
doesn't need to break laws in order to avoid hiring American workers. That
is because he is one of the architects of the green card and H-1B laws. He
literally wrote the laws and he methodically put ample loopholes into the
law in order to discriminate against qualified Americans. Fragomen rigged
the laws because it was good for his business.

You can bet the DOL's fishing expedition will turn up something Fragomen's
firm has done wrong because they process thousands of visas. But don't
expect Fragomen or his slimy partners to take the hit. Probably a low level
paralegal that is working there on an OPT visa will get fired and forced to
return to India. No big deal for the money-grubbing lawyers who would
consider that collateral damage.

Don't get me wrong though, I'm all for the DOL audit. I haven't stopped
laughing since I heard about it! For one thing it will keep Fragomen's
partners very busy defending themselves, which might distract them from
processing as many visas -- and that's bad for their business (wink).
What's bad for Fragomen is good for us. Of course that will mean more
business for other sleazeballs like Siskind or Cohen&Grigsby. You remember
the Cohen&Grigsby tubegate scandal, don't you?

"Our goal is clearly NOT TO FIND a qualified and interested U.S. worker."
-- Larry Lebowitz, Cohen & Grigsby seminar, May 15th, 2007

Clearly, the goal of the DOL should be to treat all of these lawyers in a
fair manner. Therefore, in the interest of fair play, I call on the DOL to
audit the LCAs of all immigration law firms.

The DOL investigation is already starting to get fun. You just can't help
but get a warm fuzzy feeling as you read the ranting at the Immigration
Lawyer's Website (see below). The American Immigration Lawyers Association
(AILA) wasted no time writing a letter to their stooge, Elaine L. Chao.
Lawyers like Greg Siskind are having hissy fits on their blogs (see below).
Siskind actually recognizes that the vultures are going to pick at
Fragomen's carcass, but what he doesn't say is that he will be one of the
beneficiaries as clients flock away from the Fragomen group, who may get a
reputation of being damaged goods.

Yeah, let's just sit back and enjoy this one.

****************
Materials Included
****************

http://www.dol.gov/opa/media/press/eta/eta20080752.htm
ETA News Release
U.S. Department of Labor auditing all permanent labor certification
applications filed by major immigration law firm
Department acts to protect employment opportunities for American workers

http://www.ilw.com/immigdaily/digest/2008,0605.shtm
DOL Puts Foot In Mouth

http://blogs.ilw.com/gregsiskind/files/aila_fragomen_letter.pdf
AILA letter to Elaine L. Chao

http://blogs.ilw.com/gregsiskind/2008/06/in-defense-of-f.html
IN DEFENSE OF FRAGOMEN, by Siskind

+++++++++++++++++++++++++++++++++++++++++++++++++++

http://www.dol.gov/opa/media/press/eta/eta20080752.htm

ETA News Release: [06/02/2008]
Contact Name: Terry Shawn or Jennifer Kaplan
Phone Number: (202) 693-4676 or x5052
Release Number: 08-0752-NAT

U.S. Department of Labor auditing all permanent labor certification
applications filed by major immigration law firm
Department acts to protect employment opportunities for American workers

WASHINGTON The U.S. Department of Labor today announced that it has begun
auditing all permanent labor certification applications filed by attorneys
at Fragomen, Del Rey, Bernsen & Loewy LLP. The department has information
indicating that in at least some cases the firm improperly instructed
clients who filed permanent labor certification applications to contact
their attorney before hiring apparently qualified U.S. workers. The audits
will determine which, if any, applications should be denied or placed into
department-supervised recruitment because of improper attorney involvement
in the consideration of U.S. worker applicants.

"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 and that their wages and working conditions are
not adversely affected by the hiring of foreign workers."

The permanent labor certification process, established by the Immigration
and Nationality Act, allows employers to sponsor aliens for permanent
residence (secure a "green card") to fill positions for which no qualified,
willing and available U.S. workers can be found. The department's
regulations set forth detailed procedures by which an employer seeking
certification must demonstrate that no qualified U.S. workers can be
located.

The department's regulations specifically prohibit an employer's
immigration attorney or agent from participating in considering the
qualifications of U.S. workers who apply for positions for which
certification is sought, unless the attorney is normally involved in the
employer's routine hiring process. 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.

In 2004, the department adopted reforms streamlining the permanent labor
certification process by moving to an attestation-based system. Audits of
applications are one of the major deterrents used by the department to
ensure program integrity.

+++++++++++++++++++++++++++++++++++++++++++++++++++

http://www.ilw.com/immigdaily/digest/2008,0605.shtm

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