Date: Mon, 9 Jun 2008 22:02:17 -0700 From: Norm Matloff To: Norm Matloff Subject: dramatic admission by lawyers' publication--recruiting U.S. workers is a "charade" To: H-1B/L-1/offshoring e-newsletter Immigration Daily, a publication for immigration lawyers, runs several times a week on the Internet. It contains the latest news on immigration legislation and litigation, and claims 17,000+ subscribers. Each issue typically contains a couple of news items, some Help Wanted ads for law offices, and an editorial. ILW has now come out with a doozy of an editorial in its June 10 issue, dramatically stating that the PERM requirement, under which employers wishing to sponsor foreign workers for green cards must first recruit Americans for the job, is all play-acting, in ILW's own words a "charade" and a "circus." I couldn't have said it better myself. :-) But is this a giant mea culpa, a cathartic tell-all titled "How I Used Every Loophole in the Book to Help My Clients Avoid Hiring Americans"? Au contraire, it's a complaint that Congress set up this charade and now makes employers play along. This is highly disingenuous. The lawyers are making tons of money out of this very charade--they'd go broke if the whole process consisted of a simple one-page form that was rubber-stamped. But now this audit is making them worried. Fragomen is a big fish, the biggest, and all this publicity is not good for the lawyers. They wanted things to stay the way they were, giving the appearance that American workers were protected, while the lawyers were busily making use of every possible loophole to enable their employer clients to avoid hiring Americans. All this fuss can be traced directly back to "TubeGate," the set of videos posted on YouTube in which a prominent Pittsburgh law firm, Cohen and Grigsby, showed employers some of these vital loopholes I keep citing. (See my base posting on this (http://heather.cs.ucdavis.edu/Archive/YouTubeVideosH1B.txt) The relevant tape in the set is video 9, which shows employers who wish to sponsor a foreign worker for a greencard how to avoid hiring American workers, in FULL COMPLIANCE WITH THE LAW. (In video 12, they show how to pay H-1Bs and greencard sponsorees below-market wages, again fully legally.) Forgive me for speaking so bluntly, but the immigration lawyers are showing themselves to be out-and-out liars. That's nothing new, of course. Programmers and engineers have known for years that the green card process was stacked against the American worker, and I pointed out some of the loopholes that make this possible. Then immigration attorney Joel Stewart said it publicly: "Employers who favor aliens have an arsenal of legal means to reject all U.S. workers who apply" (Joel Stewart, "Legal Rejection of U.S. Workers," Immigration Daily, April 24, 2000; available at www.ilw.com/articles/2000,0424-Stewart.shtm). But people on Capitol Hill didn't know it until the Cohen & Grigsby videos came out, showing that all those assurances the AILA and others gave Congress that the system protects American workers were bald-faced lies. Many of you remember what C&G attorney Larry Lebowitz said in video 9, but few of you know that Lebowitz was actively lying to the outside world, saying exactly the opposite of what he told his clients "privately" in video 9. This is what Lebowitz said in his op-ed in the Pittsburgh Post-Gazette, May 21, 2000: # U.S. companies that bring in foreign professionals usually do so as a # last resort...These rules actually help U.S. workers, too, by...ensuring # that U.S. workers are not displaced... But in the "private" video, he said # And our goal is clearly, not to find a qualified and interested U.S. # worker. And you know in a sense that sounds funny, but it's what # we're trying to do here. We are complying with the law fully, but # ah, our objective is to get this person a green card, and get through # the labor certification process. So certainly we are not going to # try to find a place [at which to advertise the job] where the # applicants are the most numerous. We're going to try to find a place # where we can comply with the law, and hoping, and likely, not to find # qualified and interested worker applicants. Similarly, another Cohen & Grigsby attorney, Matt Phillips, told the Pittsburgh Post-Gazette (Crush of Applicants for Visas Has Firms Fearing Staff Losses, Anya Sostek, April 5, 2007): # The visas are so essential, [the employers] say, because there just # aren't qualified Americans to fill the jobs...If the numbers [of U.S. # workers] were available in the economy, no one would pay us to do # this [visa application process]. But in the "private" videos, he was saying just the opposite, showing how to avoid hiring Americans. Meanwhile, in video 12, his colleague Jen Pack was showing how to pay below-market wages to both green card sponsorees and H-1Bs, again fully legally, and thus making it definitely worth that expensive visa application process Phillips referred to. So, you have both Lebowitz and Phillips assuring the public that the law protects American workers while these two lawyers are telling their clients (accurately) that it doesn't. Remember, the lame excuse they gave for lying to the public is that employers already have a worker in hand, the foreign national who they hired earlier as an H-1B, and thus don't want to look for an American. And it's even worse than that, because in offering this excuse they were hiding the fact that when the employers hired their H-1Bs, there was NO requirement that they recruit Americans. In other words, what the lawyers really want is there to be no U.S. recruitment requirement at ANY stage, period. Getting back to ILW, the point is that today's editorial, dramatically describing the green card law's recruitment requirement as a "charade," shows that Cohen & Grigsby is not some rogue law firm, some isolated instance. On the contrary, their behavior is STANDARD OPERATING PROCEDURE. Attorney Stewart's book quote that too--he wrote a standard reference on the green card process--as does the fact that the AILA basically stated that Cohen & Grigsby were working along standard lines. Now we have Immigration Daily, a prominent publication for immigration lawyers, saying it too. I'm also enclosing below, I'm including a response by one Katy Preston in the law office of Zhang & Associates responds to the Cohen & Grigsby video. She starts out by assuring us that % The labor certification process benefits U.S. workers by ensuring % that no U.S. worker is being denied a job when an employer seeks % permanent residence for one of its foreign workers. But then she lets the cat out of the bag: % The PERM process is really meant to test the job market, not to % recruit someone for that specific position. Even if an employer does % find a qualified U.S. worker for a particular position, the employer % does not have to hire that worker. Which is exactly ILW's point, and exactly why I keep trying to explain that the entire process is one giant loophole. Preston has the nerve to then add, % So U.S. workers are not necessarily being displaced when a labor % certification application is approved. I hope everyone keeps in mind--once again--that all of this is about LOOPHOLES. DOL might find some minor violation on Fragomen's part, but as you can see from ILW's editorial, the entire process is a CHARADE. The LAW is the problem, not enforcement of the law. Norm IMMIGRATION DAILY FROM ILW.COM June 10, 2008 1. COMMENT The DOL Circus DOL's attack on the country's largest immigration practice (see our previous comment) http://www.ilw.com/immigdaily/digest/2008,0605.shtm#comment calls for an examination of the central horror in DOL's gobbledygook a/k/a the labor certification system - the so-called "recruiting" component of the labor cert process. DOL's invention of the "recruiting" process at 20 CFR 656 is a circus created entirely from DOL's imagination. The plain language of the statute at 212(a)(5)(A) neither sets forth nor permits a recruiting charade that DOL has imposed on both US employers and US workers alike. It is DOL that defrauds US workers into thinking that there is a job opening for US workers in a labor cert case, when in reality, no employer would go thru this Alice- in-Wonderland process without wanting a specific alien to fill that position (indeed DOL's own forms have always required the employer to specify an alien beneficiary). The "recruiting" process in labor certs can reasonably be interpreted only as a test of the labor market, during which an alien can be disqualified for the opening by a US worker, but during which no US worker can be qualified for the job by the US employer. This is so because of DOL's concept of "diversion", which forbids a US employer from employing a US worker during the labor market test, upon pain of losing the alien worker. DOL believes our labor market to be a zero sum game pitting the interests of US workers against alien workers (half of the country's unions disagree with this paradigm - the Change To Win unions seceded from the AFL-CIO largely over the zero sum paradigm and immigrant workers). (In the labor cert context, DOL truly lives on another planet where US employers do not frequently change their minds on job requirements based on the pool of candidates responding to the employer's ad, so the entire basis of "diversion" - a US worker qualifying for an opening - is suspect since the opening itself and the qualifications therefor are dynamic, not static.) The true fraud here is DOL's concept of "success" in the labor certification system. DOL has openly stated (in ETA's response to the infamous OIG audit of about a decade ago, see The Lawyer's Guide to 212(a)(5)(A)) http://www.ilw.com/articles/2004,1102-endelman.shtm that its index of success in the labor cert program is the denial rate. Repeat, the denial rate is DOL's index of success. In other words, a single certified PERM application is DOL's proof that US workers are being defrauded out of a job. With such a perverted definition of fraud, it is small wonder that DOL sees fraud anywhere it looks. The sad part in DOL's attack on the bar is that employers who hire virtually no US workers at all (a/k/a body shoppers) usually do have their in-house immigration attorney as the "employer's representative" within the meaning of 20 CFR 656.10(b)(2)(ii), so they can with impunity assist the US employer actively in disqualifying US workers with abandon. DOL's enforcement priorities are seriously skewed if such is the type of US employer that DOL's actions would encourage. In its new mode of "trial by press release", DOL appears to be acting in the discredited spirit of Eliot Spitzer. Fortunately, the immigration bar has grasped that this is not just an attack on one firm, but is an attack on all lawyers trying to grapple with the labor cert beast (the 9089 form has the lawyer's FEIN number!). Of one thing we are sure: there will be more to come in this saga, stay tuned to Immigration Daily! http://www.hooyou.com/news/news111907perm.html PERM Job Postings: Bona Fide Positions, or a Necessary Evil? by Katy Preston This summer, a major controversy arose when Cohen & Grigsby, a Pittsburgh law firm, posted a videotaped seminar about the PERM labor certification process on the Internet. To some people, the video seemed to describe how to exploit loopholes in the application process. To others, it described legitimate strategies for success. When many people and advocacy groups reacted with shock and outrage, the firm quickly took the video down (although an edited version still remains on the video-sharing website YouTube). Over the next few weeks, the video prompted many people to question the labor certification process and whether it really prevents the displacement of American workers. PERM's Legal Requirements The labor certification process is the first step for many employment-based immigration cases. Most EB-2 and EB-3 cases require an approved labor certification application before the employer can file an immigration petition. The purpose of the labor certification process is to provide a balanced test of the labor market. The labor certification process benefits U.S. workers by ensuring that no U.S. worker is being denied a job when an employer seeks permanent residence for one of its foreign workers. It gives employers access to unique resources they cannot find elsewhere, and it allows foreign workers to go where their skills and talent are in the highest demand. Thus, the labor certification process has benefits for all parties involved. The Department of Labor implemented the new Program Electronic Review Management (PERM) labor certification process in March 2005. These are the main requirements for employers filing PERM applications: 1. The position in question must be a bona fide, full-time, permanent job offer located in the United States. 2. The position must be paid the prevailing wage for that profession and location. 3. Hiring an alien for the job must not adversely affect U.S. workers (e.g., by lowering standards for working conditions). 4. There must be no qualified U.S. worker available to accept the job offer through the recruitment process. It's worth noting that under the old labor certification system, employers submitted evidence of their adherence to these requirements along with the main application. Under PERM, however, an employer submits these documents only if its application is chosen for an audit. The PERM Recruitment Process Employers who file PERM applications must go through a recruitment process to ensure that no available U.S. worker could replace the alien in question. The employer must perform these recruitment activities within 180 days of filing the application, and they must finish the activities at least 30 days before filing. Basically, the employer has to advertise the position in a widely circulated newspaper or professional journal, place a job order within the state job order system, and post the job internally. If the position requires a bachelor's degree or higher, the employer also has to conduct at least three other recruitment activities, which range from posting the position on the employer's website or an independent job-search website to using an employee referral program. There are more detailed rules about each of these activities--including how long the advertisements must be shown and what the appropriate venues are--but those are the basic requirements. There are also specific rules about what the actual minimum requirements of the job should be. These requirements are designed to prevent an employer from favoring a foreign worker by creating unduly restrictive minimum requirements. Essentially, the employer can require only what is justified by "business necessity"--that is, only what is required for the duties of the position. PERM applications use a standardized set of job requirements. Employers that want to exceed those requirements must be able to document that their extra requirements arise from business necessity. Objectives and Design Flaws of the Recruitment Process The videotaped seminar posted by Cohen & Grigsby attracted a lot of attention because it taught employers how to legally go through the PERM recruitment process without finding a qualified U.S. worker. Perhaps the most quoted line from the video is Attorney Lawrence Lebowitz's statement that "[their] goal is clearly not to find a qualified and interested U.S. worker." Lebowitz added after saying that, "In a sense, that sounds funny, but it's what we're trying to do here." Lebowitz's words escalated an already heated debate about immigration. CNN journalist Lou Dobbs and advocacy groups like the Programmers' Guild expressed their anger and frustration that this measure was apparently not doing its job of protecting American workers. They conflated this issue with the H-1B visa debate and painted a picture of cheap foreign labor putting Americans out of work, epitomized by Dobbs's recurring slogan, "War on the Middle Class." Despite this slight confusion of the issue by the media, the widespread coverage of the Cohen & Grigsby seminar did create legitimate concerns about the recruitment process. If nothing else, the seminar showed that many U.S. employers enter the recruitment process with the specific objective of failure--and calls into question whether the requirements of the process make it difficult enough for them to reach that goal. For example, despite the Department of Labor's rules about what the actual minimum qualifications for a PERM position can be, the Cohen & Grigsby video shows that employers can still disqualify many of the American applicants, perhaps more than some people think they should. Still, it's possible that the public misunderstands what the recruitment process is for. The PERM process is really meant to test the job market, not to recruit someone for that specific position. Even if an employer does find a qualified U.S. worker for a particular position, the employer does not have to hire that worker. So U.S. workers are not necessarily being displaced when a labor certification application is approved The flaw in the process is that the employer often has a conflict of interest and does not perform the test objectively. This conflict of interest creates biased results, which oppose the goal of the labor certification process. Employer Liability in the Recruitment Process The purpose of PERM is to encourage employers to hire qualified U.S. workers. However, some people may perceive from the Cohen & Grigsby video that employers are discriminating against U.S. workers and preferring foreign workers instead. The PERM recruitment process can put employers in a delicate position if a qualified and willing U.S. worker applies for the job. The employer is required to conduct the recruitment process in good faith to test the job market. However, if a qualified U.S. worker is available and willing to take the job, the employer does not have to recruit him or her under the PERM rules. Ideally, the employer will hire the qualified U.S. worker and still have a position open for the alien worker. But that doesn't always happen. The problem is that if the employer chooses not to hire the U.S. worker, the U.S. worker can sue the employer--since he or she applied for a job that was offered in apparent good faith. This possibility might push employers toward disqualifying as many job applicants as they can in an effort to avoid lawsuits. We hope our discussion of this issue helps our clients understand general attitudes in the United States about employment and immigration, and the stakes that are involved when these issues are debated. Americans are concerned that the U.S. government's protective measures are not working. The Cohen & Grigsby video suggests that there are ways to sway the results of the labor certification process, despite rules about recruitment and unduly restrictive job requirements. However, it's important to keep in mind that Cohen & Grigsby's tactics are entirely legal. A spokesperson for the firm reminded the public of this fact, while also expressing some regret for the video's "ill-chosen language." The fundamental issue here comes from the different interests of each group. Employers want to retain their current employees, since they often consider that person the best possible candidate for the position. American workers, represented by the Department of Labor, want protection from displacement by foreign workers. As an immigration law firm, Zhang & Associates acts in our clients' best interests. We want to achieve the best possible results for our clients who are going through the PERM application process. But we also think it's important to explore these issues and ask questions about them. We hope that by examining different opinions and points of view, we can help our clients improve their understanding of the legal issues involved and move through the labor certification process more smoothly. --------------- Founded in 1996, Zhang & Associates, P.C. offers legal services to clients nation-wide in all aspects of U.S immigration laws. We have successfully handled thousands of immigration cases. At Zhang & Associates, P.C., our attorneys and supporting professionals are committed to providing high quality immigration and non-immigration visa services. We specialize in NIW, EB-1, PERM and I-485 cases. In the past eleven years, we have successfully helped thousands of clients get green cards. If you plan to apply for a green card, please send your CV to Attorney Jerry Zhang (info@hooyou.com) for a free evaluation. Houston: 7324 Southwest Freeway, Suite 1088, Houston, TX 77074 Chicago: 6 E. Monroe St. Suite 602, Chicago, IL 60603 New York City: 1350 Broadway, Suite 1710, New York, NY 10018 Austin: 919 Congress Avenue, Suite 900, Austin, TX 78701 Tel:1-800-230-7040, 713-771-8433 Email: info@hooyou.com website:http://www.hooyou.com In the moment of dynamics, our clients can always count on us. (11/19/2007)