Date: Thu, 26 Jun 2008 11:21:54 -0700 From: Norm Matloff To: Norm Matloff Subject: green card law just as loophole-laden as H-1B To: H-1B/L-1/offshoring e-newsletter Enclosed are several items updating the DOL audit of Fragomen, Del Rey, Bernsen & Loewy, the largest immigration law firm in the nation. Recall that DOL says it has evidence that Fragomen overstepped its bounds in advising employers how to legally avoid hiring U.S. workers, enabling the employers could sponsor foreign workers for green cards. As I stated earlier in this e-newsletter, I doubt that Fragomen violated the law. (See http://heather.cs.ucdavis.edu/Archive/FragomenAudit.txt) As always, my point is that THE LAW ITSELF IS THE PROBLEM, WITH HUGE LOOPHOLES. This is true for both H-1B and green cards, the latter being the focus here. The Fragomen firm is, I believe, merely providing advice on how to use those loopholes. Immigration Daily, an online publication for immigration lawyers, says this quite succinctly in one of the enclosed items, repeating their earlier comment: "DOL's claim that the labor market test [in the green card process] protects US workers is bogus, and over-zealous enforcement is not going to make it one iota more effective." A related point, of the utmost importance, is that Fragomen is a major firm, with major, mainstream clients. The industry lobbyists have tried to dismiss abuses of H-1B and green cards as being confined to Indian-owned "body shops" represented by attorneys who counsel their clients to violate the law. This is simply not the case, as seen by Fragomen's prominence and it's thoroughly-mainstream list of clients. Note for example that the company referred to below as "a software firm" is a giant, Cisco. Again, EVERYONE--i.e. BASICALLY ALL EMPLOYERS AND ALL ATTORNEYS--know and exploit these loopholes. It's just like the situation with the tax code--every good tax accountant knows the loopholes and all the major firms make full use of them. Now, a couple of comments on the enclosures: # Aman Kapoor, founder of Immigration Voice, whose membership includes # many immigrant workers going through the labor certification process, # fears the only outcome will be even longer waits for green cards. # "No matter which way you look at it," Kapoor said, "whether it's the # fault of the lawyer, or the fault of the agency or the employer, the # person who is going to suffer at the very end is going to be a legal, # law-abiding, high-skilled immigrant." Kapoor is NOT an immigrant. He HOPES to be an immigrant, i.e. he HOPES his green card petition will be approved. Good for him, but he's not an immigrant and thus his self-righteous tone is unjustified. Furthermore, in all likelihood he is holding his job at the expense of some U.S. citizen or permanent resident, making that tone completely inappropriate. The Dobbs program, though presenting a much-appreciated message, is missing the point, again because their report here presents the problem as one of lax enforcement by DOL, rather than fundamentally being due to the gaping loopholes in the law. Dobbs is also confusing the employer-sponsored green card program with the H-1B work visa, a very common error. True, most of those sponsored for green cards currently hold H-1B visas, but they are two separate programs. Norm http://biz.yahoo.com/ap/080624/immigration_lawyers.html?.v=1 AP Government probing work of immigration law firm Tuesday June 24, 4:22 pm ET By Suzanne Gamboa, Associated Press Writer Bush administration probing whether law firm helped corporate clients disqualify US workers WASHINGTON (AP) -- The nation's largest immigration law firm is under federal scrutiny over whether it helped major U.S. corporations disqualify American job applicants and give thousands of high-paying positions to immigrants. The unprecedented Labor Department inquiry centers on Fragomen, Del Rey, Bernsen & Loewy -- a New York firm at the forefront of a political effort to ease hiring of skilled foreign workers. The Labor Department is auditing all pending applications for legal immigrant workers the firm has filed on behalf of its corporate clients. Fragomen's prestigious client roster includes General Electric Co., IBM Corp., Cisco Systems Inc., Intel Corp. and Bank of America Corp., according to company publications and trade journals. The firm also represents The Associated Press on immigration issues. The inquiry focuses on the applications filed by the firm, but there was no indication that the inquiry involves any of Fragomen's clients. The Labor Department said that Fragomen may have improperly advised clients to contact a Fragomen attorney before hiring "apparently qualified" U.S. workers. The agency said lawyers can advise employers on how to follow the law in hiring immigrants but can't dissuade them from deciding a U.S. worker is qualified. The audit focuses on what is known as the permanent foreign labor certification, or PERM, process. Companies normally use it to permanently hire legal immigrants who have been working for them on temporary visas. It essentially allows companies to sponsor workers for green cards, the first step to U.S. citizenship. Before applying, companies must recruit and try to find a qualified U.S. worker for the same job. If they do, they can't hire the foreigner. Fragomen said its lawyers have complied with the law and rejected the idea that lawyers can't give critical legal advice about the complicated process for permanently hiring legal immigrants. "We do not tell our clients whom to hire or not to hire," the firm said in a statement, adding that it is negotiating with the Labor Department to end the audit. It's unclear exactly how many of Fragomen's applications the Labor Department is auditing as a part of the inquiry that was announced in early June, but the number is easily in the thousands. With more than 200 attorneys, Fragomen is overwhelmingly the biggest player in an industry where firms with several dozen immigration attorneys are considered large firms. In 2004, the last year the Labor Department made such information about law firms public, Fragomen lawyers filed more than 3,600 labor certifications -- more than twice as many as its largest competitor. The firm's managing director has also said Fragomen represents about half of the Fortune 100 companies. Last year, Fortune 100 companies submitted more than 5,300 applications. The jobs listed in the applications pay an average of $80,000. And the largest group of applicants were from India. The Labor Department audit is lending firepower to workers, unions and other groups, that for years have said U.S. workers are being replaced with cheaper immigrant labor. "The reason an employer pays its lawyer $3,000 to $5,000 is because they need help in not finding qualified American workers," said Kim Berry, president of the Programmers Guild, an advocacy group that believes immigrant hiring rules are too lax. The audit also has drawn objections from immigration attorneys, unnerving some who fear it could restrict when they can advise clients seeking to hire immigrant workers. "The Department of Labor said this firm had engaged in something improper and then went on to describe something that no one in this field, employer or attorney, finds improper," said Crystal Williams, programs director for American Immigration Lawyers Association. The Labor Department said Fragomen may have broken the rules because some immigrant recruiting forms the law firm provides to the corporate clients say: "After an 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." The department said it would decide whether any of the pending applications submitted by Fragomen clients should be denied or subjected to additional government oversight. "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 department said in its news release. Labor Department officials refused interview requests. Spokesman Terry Shawn said the agency does not comment on ongoing legal matters, despite issuing news releases on the matter. The American Immigration Lawyers Association criticized the audit and news releases announcing the inquiry. "It is crystal clear that attorneys have a legitimate role in counseling employers during PERM recruitment, a highly structured process governed by detailed regulations and complex administrative case law," executives of the association said in a letter to Labor Secretary Elaine Chao. Aman Kapoor, founder of Immigration Voice, whose membership includes many immigrant workers going through the labor certification process, fears the only outcome will be even longer waits for green cards. "No matter which way you look at it," Kapoor said, "whether it's the fault of the lawyer, or the fault of the agency or the employer, the person who is going to suffer at the very end is going to be a legal, law-abiding, high-skilled immigrant." http://transcripts.cnn.com/TRANSCRIPTS/0806/24/ldt.01.html LOU DOBBS TONIGHT Surge in Violence in Afghanistan; God and Politics; Massive Cartel Bust; China's Cyber Threat Aired June 24, 2008 - 19:00 ET THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED. ... DOBBS: Welcome back. The federal government is conducting an inquiry into one of the nation's largest immigration law firms. The labor department now says it put Fragoman, Del Ray, Bernsen and Loewy on notice, that's a law firm, for helping corporations hiring cheap foreign labor instead of middle class Americans. Bill Tucker has our report. (BEGIN VIDEOTAPE) BILL TUCKER, CNN CORRESPONDENT: The law firm of Fragomen, Del Ray, Bernsen and Loewy is a very big and respected immigration law firm. Its client list includes General Electric, IBM, and other fortune 500 countries. On its website, Fragomen describes itself as "the leading provider of corporate immigration services and solutions and leading the way in global corporate immigration." The firm can also add all guest worker visa filings by the firm on behalf of its corporate clients are now being audited by the Department of Labor, labor making this announcement. "The department has information indicating that at least in some cases the firm improperly instructed clients who filed permanent labor certification applications to contact their attorney before hiring apparently qualified U.S. workers." A spokesman explains that the department has the legal responsibility to make ensure that foreign workers are not hired to fill jobs where qualified, able and willing U.S. workers are available. What prompted the audit was concern that the law firm was improperly involving itself in hiring decisions. The law firm declined comment. But network engineer David Huber is commenting. He answered this ad in a Chicago newspaper for a job with a software company last year. The ad didn't put him in touch with the company. It put him in touch with Fragomen. DAVID HUBER, NETWORK ENGINEER: I found it really strange that somebody who worked at an immigration law firm would be the attention to person in a newspaper ad placed by a high tech internet company. TUCKER: Huber was not offered a job. (END VIDEOTAPE) TUCKER: But he said a couple months after submitting his resume, he was conducted by a representative of and Indian outsourcing firm who offered him a job doing work through them for the same company at 40 percent of the pay that he would have expected for somebody of his experience and background. And Lou, I got off the phone with the lawyers just before I came out here, the attorneys that represent Fragomen and they insist their client has done nothing wrong, that they don't tell their clients who to hire or who not to hire. They simply were there to give them legal advice in guiding them through the system that's been set up by the Department of Labor. DOBBS: An immigration law firm after immigration law firm after immigration law firm in this country all set up to do what? TUCKER: To guide them through the system of the Department of Labor. DOBBS: What a bunch of beauties they are, too. So the labor department discovered this practice was going on some years after the rest of the country figured out that this is a problem among a number of law firms in this country where Fragomen all of the boys and girls, I assume, are guilty of it or not. I mean what is taking the labor department so long to awaken to this reality? TUCKER: I don't know, Lou. I did speak with the labor department. They are saying, by the way, this doesn't mean they did anything wrong. We're just auditing them. We're looking to see what they're doing because we think they might be doing something wrong. DOBBS: But the lawyers for the lawyers say they're not doing anything wrong. TUCKER: Lawyers -- DOBBS: It's good when you have the lawyers for the lawyers. Unbelievable. How about just doing the right thing? Forget about the lawful thing. How about the right thing? It would help even a lot of law firms who are representing law firms. Thank you, Bill Tucker. Well, the H-1B visa program is at least one of ten guest worker programs in this country. I know you're thinking George Bush wants a guest worker program. No one apparently has ever had the guts to tell him there are currently ten guest worker programs administered by the U.S. government. There's a limit of 65,000 regular H1-B visas offered each year. An additional 25,000 are set aside for high technology workers with advanced degrees, bringing the total number of H1-B visas to 85,000. However, there is a truth that goes beyond the number. The number of H1-B visas approved is actually much higher. The H1-B program is meant to bring "the brightest and best foreign workers into the country." But only 11 percent of those visas go to highly skilled workers. And according to the latest numbers, 8 of the top 10 companies who apply for those H1-B visas, well, they go to Indian outsourcing firms. The H1-Bs are now issued on a three-year basis but that of course can be extended to six years and no government agency monitors those workers to make sure they leave the United States when those temporary visas expire at the end of say, six years. How temporary is that? a good question. -----------------IMMIGRATION DAILY FROM ILW.COM------------------ http://www.ilw.com/immigdaily/digest/2008,0626.shtm June 26, 2008 1. COMMENT New Stuff In DOL Saga A New York Times report http://www.nytimes.com/aponline/washington/AP-Immigration-Lawyers.html?_r=1&oref=slogin today continues the saga of DOL's punitive expedition against the country's largest immigration law practice. We return to this saga today with new thoughts on the following: (A) DOL's real reason for the PERM audits (B) The 3 mistakes DOL made - so far (C) The lawyer's role in labor certs (D) DOL's recruiting circus. ++(A) DOL's real reason for the PERM audits. As the initial smoke from DOL's penal raid clears, it is gradually becoming apparent that the real reason behind DOL's action is to secure greater funding from Congress for PERM enforcement. A small team such as the PERM folks at DOL tend to get lost in the bureaucratic shuffle, and from time to time, these people remind Congress that they exist and need nourishment. High profile enforcement actions are an excellent way to get Congress's attention, and DOL's minions are using this tried-and-true technique to secure more taxpayer dollars for their unit. In a way, the above article in the New York Times is a great victory for the labor cert group at DOL, since it marks a milestone in DOL's pursuit of the biggest PERM filer in the US. Attorneys should not breathe easy, however. Until the appropriations bills are enacted, DOL will continue to breathe fire (and once funding is obtained, DOL will breathe more fire). ++(B) The 3 mistakes DOL made - so far. Whatever one's views on whether this is a proper way to run a railroad, there are 3 reasons why Immigration Daily opposes the DOL's infamous action. (1) The substantive reason is that the law is not on DOL's side, DOL's argument will not survive court scrutiny. (2) DOL has made no statement that prior audits of this firm uncovered a pattern of behavior. Acting hastily, without evidence obtained from audits over a period of time, DOL is in effect punishing the firm's clients for their choice of a lawyer. (3) The worst part about DOL's action is the press release acrobatic display. This is in the worst traditions of the discredited Elliot Spitzer. Such grand standing is not about law enforcement, but simply about fattening a bureaucracy by making a show of effectiveness. ++(C) The lawyer's role in labor certs. In an attorney- represented scenario, the real screening happens at the front- end. Lawyers weed out the weaker applications, and dissuade employers from beginning these at all. Once an application process begins, the art of labor certification lies in crafting job descriptions/requirements which are both truthful and successful when subjected to the labor market test. Most experienced practitioners have a lifetime record of 99% certified. (This is one reason why DOL/ETA has taken to issuing misleading PERM statistics showing a much larger percentage of denials than reality justifies. If DOL were to re-issue these statistics on an alien-centered basis, the percentage of denials reported would plummet.) Using entirely lawful reasons for rejecting US workers, an employer guided by legal counsel should have no difficulty in almost every case in obtaining certification (for applications filed that is - weak applications are not filed as described above). DOL's claim that the labor market test protects US workers is bogus, and over-zealous enforcement is not going to make it one iota more effective. ++(D) DOL's recruiting circus. Fraud exists in the PERM process and it is entirely of DOL's making, it goes by the name of "the recruitment process" a.k.a. "the labor market test" a.k.a. "the DOL circus". DOL cruelly uses US workers as pawns and equally cruelly uses US employers as unwilling participants in a charade, which is only a test of the labor market. Using the concept of "diversion" DOL is dead set against any real recruitment of US workers during the labor market test. This cockamanie process is unfathomable even to much of the immigration bar, and it is small wonder that it attracts charges of fraud and misguided enforcement efforts. In the mid-1980s, various federal agencies, including the FBI, persecuted a number of members of the bar for exactly the same thing that the DOL accuses the bar of doing today. This problem is an institutional one, and is not peculiar to a particular administration. Those hoping for a change in 2009 under a new administration are going to be disappointed. The proper remedy to this excess today is not federal litigation (though DOL will surely provoke visits to the courts if it continues in its recent efforts), but Congressional oversight to rein in unproductive enforcement. A more productive target for enforcement is PERM applications where an attorney has not made an appearance. As we have said before, this saga will continue. Stay tuned to Immigration Daily!