Date: Thu, 10 Jul 2008 00:13:08 -0700 From: Norm Matloff To: Norm Matloff Subject: DOL initiates supervised recruitment with Cohen & Grigsby To: H-1B/L-1/offshoring e-newsletter In the enclosed press release, DOL announced that it has initiated a "supervised recruitment" action with Cohen & Grigsby, the immigration law firm of "TubeGate" fame. This is the firm whose videos on YouTube showed employers how to legally avoid hiring Americans when they are sponsoring a foreign worker for a green card. DOL now will be giving Cohen & Grigsby's green card applications extra scrutiny. This comes on the heels of DOL's having initiated an audit of Fragomen, the nation's largest immigration law firm, also on alleged irregularities in the green card process. See http://heather.cs.ucdavis.edu/Archive/FragomenAudit.txt http://heather.cs.ucdavis.edu/Archive/Fragomen2.txt http://heather.cs.ucdavis.edu/Archive/Fragomen3.txt http://heather.cs.ucdavis.edu/Archive/Fragomen4.txt As I've said before, I believe that both firms have been complying with the law and regulations. What they've been doing is ugly but legal. This of course illustrates my frequent theme that the employers and immigration lawyers don't have to cheat, as the gaping loopholes make it easy to circumvent the spirit of the law while staying within the letter of the law. Why, then, is the DOL going after these two firms? My guess is that it's for show, to divert attention from the real issues, which are the loopholes. This has been a favorite tactic of the industry lobbyists. On the other hand, it could be an issue of pride. Though the DOL has clearly been politicized, there are some there who don't view their jobs as tools of Big Business. I can imagine them having the feeling that the employers and lawyers are humiliating them and making a mockery of their jobs, causing an intense desire among some in DOL to take action to show that DOL has some backbone. I'm also enclosing an editorial on DOL's action in Immigration Daily, a publication by ILW for immigration lawyers. ILW has been highly critical of--"hostile toward" would be a more accurate description--DOL for its action with Fragomen, and now is equally outraged by the new sanction on Cohen & Grigsby. ILW thinks, by the way, that DOL's motivation for all of these fireworks is to get Congress to give it more funding for audit operations. ILW's view of the two cases is just as interesting as the sanctions themselves, because ILW admits that, as it stated in an earlier editorial on the Fragomen case (http://heather.cs.ucdavis.edu/Archive/Fragomen2.txt), the law and regulations as written do NOT protect American workers. Both of the enclosures below, one from DOL and the other from ILW, point out something often overlooked in the H-1B/green card debate: The law itself (Immigration and Nationality Act 212(a)(5)(A), also in 8 US Code) states that no alien may be admitted to the U.S. for employment unless the Sec. of Labor finds that there is a labor shortage in the field. DOL must then write regulations to implement that law (the reference to "20 CFR 656" below). Those regs require the employer who wishes to sponsor a foreigner for a green card to advertise the job etc. That already creates a huge loophole, as there is no requirement that the employer really try to fill the job with an American. (Ironically, the law for H-1B-dependent employers does have such a requirement.) See the point? The law requires the Sec. of Labor to insure that Americans get hiring priority, but neither the law nor the regs directly require the employer to make a good faith effort to hire an American; the only requirement is indirect, by directing the employer to place newspaper ads and so on. This loophole is subtle but huge. There are many other loopholes as well, which is why I believe that Cohen & Grigsby did comply with the law and regs. Again, these regs have huge loopholes--placed there under pressure from the immigration lawyers, mind you--but ILW contends that DOL shouldn't be doing even that much. Once again, the real import of these two actions is not that the law firms violated green card law, but rather that they legally exploited very bad features of that law. I hope that Congress keeps this in mind as it comes under increasing pressure to liberalize the employment-based green card programs. The Fragomen and Cohen & Grigsby cases, plus ILW's correct admission that the law and regs do not protect American workers, should be seen by Congress as clear evidence that the green card programs should NOT be expanded. I hope they realize this and have the courage to resist the industry's pressure. I'll have more to say about this, including some interesting new information on the Fragomen case, in the next day or two. Norm U.S. Department of Labor Initiates Supervised Recruitment of Permanent Labor Certification Applications Filed by Immigration Law Firm July 8, 2008 4:40 PM EDT Department acts to protect employment opportunities for American workers WASHINGTON, July 8 /PRNewswire-USNewswire/ -- The U.S. Department of Labor today announced that it has begun placing pending permanent labor certification applications filed by the Cohen & Grigsby law firm into department-supervised recruitment. Supervised recruitment requires the employer to receive advance approval from the department for all recruitment efforts to ensure that U.S. workers are fully considered for available positions. The department may institute supervised recruitment when, among other reasons, it has concerns that an employer, attorney or agent may not have complied with department regulations or properly recruited or considered U.S. workers for available positions. "Supervised recruitment is one of many tools the department uses to safeguard the integrity of the permanent labor certification process and protect job opportunities for American workers," said Solicitor of Labor Gregory F. Jacob. "The department takes seriously its statutory responsibility to ensure that American workers have access to jobs they are qualified and willing to do." Last year, the department began auditing applications filed by Cohen & Grigsby as a result of information indicating the firm may have improperly advised its clients regarding the recruitment of U.S. workers. Because of concerns identified in the audits, the department is requiring supervised recruitment for certain applications filed by Cohen & Grigsby. Today's announcement reflects the department's ongoing enforcement of its statutory responsibility to ensure that U.S. workers are fairly considered for all permanent labor certification openings. The Immigration and Nationality Act requires the secretary of labor to certify that there are not sufficient U.S. workers who are able, willing, qualified and available for an open position prior to an alien being permanently admitted to the country to fill it. The department's regulations require employers to "test" the labor market for U.S. workers in a manner that is open, fair and not biased toward foreign workers, including temporary foreign workers already employed by the employer seeking the permanent labor certification. IMMIGRATION DAILY FROM ILW.COM July 10, 2008 DOL Grasps At Straws [Unrelated item deleted.] DOL issued yet another press release about yet another law firm: "Last year, the department began auditing applications filed by Cohen & Grigsby as a result of information indicating the firm may have improperly advised its clients regarding the recruitment of U.S. workers. Because of concerns identified in the audits, the department is requiring supervised recruitment for certain applications filed by Cohen & Grigsby." Contradicting itself on the same page, the press release says that DOL had "begun placing pending permanent labor certification applications filed by the Cohen & Grigsby law firm into department supervised recruitment." Which is it - certain applications or all pending applications? Can DOL not issue a clear press release? Or is it intentionally obfuscating? And why is a press release necessary? Is every employer or attorney to be placed into supervised recruitment in the future to be a subject of a future press release? Is character assassination by press release a secret provision within the PERM rule for those who incur DOL's wrath? In fairness, we must compliment a part of DOL's edicts today. In the latter press release, DOL says "The department's regulations require employers to "test" the labor market for U.S. workers in a manner that is ... fair". Finally, DOL gets some of its own regulations right - the recruitment mandated under 20 CFR 656 is a labor market test - it is not intended to be a recruitment process culminating in the hiring of a US worker. However, we stand by our long-stated position that nothing in 212(a)(5)(A) permits DOL to shove a labor market test down employers' throats. In other words, 20CFR656 - in both pre-PERM and PERM versions - is ultra vires. Lets take all the three issues above together, and see what pattern is painted thereby. First, DOL debars an immigration software provider ... as an employer! Second, DOL places some of a law firm's PERM applications into supervised recruitment. Third, DOL admits PERM recruitment is only a test. The pattern we discern is that this is DOL in crisis control mode, after beginning its attack on the bar and the misstep of taking on the immigration bar's largest firm. DOL will likely throw in the towel shortly on almost all the Fragomen applications that it is currently auditing (a few will make their way to BALCA or the federal courts). As it prepares for a retreat from the major effort involved in auditing thousands of applications, it is growling all the way on minor issues and hoping no one notices that it has only gums, no teeth. DOL would do better to realize that there is no graceful way out here. When you are in a hole, the first rule is to stop digging! Then fess up, say you are sorry, and get on with your job. Perhaps we are overly optimistic, but we believe that even DOL will learn these truths soon. If not, Congress will have to step in, and perhaps it is already doing so as we write this.