Date: Wed, 4 Jun 2008 22:41:40 -0700 From: Norm Matloff To: Norm Matloff Subject: pre-eminent immigration law firm audited by DOL To: H-1B/L-1/offshoring e-newsletter I usually do NOT post articles here about employers being investigated or fined by the DOL for violating H-1B law or regulations. This may seem odd, as many of the anti-H-1B-visa activists are thrilled when such a thing occurs, but as I've mentioned many times, these incidents are NOT important, because the vast majority of employers are abusing the spirit of H-1B in FULL COMPLIANCE WITH THE LAW, due to loopholes. Indeed, I've pointed out that the industry lobbyists love these incidents, because it allows them to divert attention from the real issue, which is the loopholes. See http://heather.cs.ucdavis.edu/Archive/PascrellJohnsonDebate.txt But the case described below is special, really special, because it involves the largest immigration law firm in the nation, Fragomen, Del Rey, Bernsen & Loewy, LLP. Mr. Fragomen literally "wrote the book" on H-1B, in fact lots of books on employer-sponsored immigration, all considered standard references (www.fragomen.com/resources/publications.shtml). So when there is an audit, amounting to an accusation that the Fragomen firm may be violating the law on employer-sponsored green cards, this is of keen interest to me. Mind you, I do NOT think they did anything illegal--once again, they simply took advantage of loopholes--and I still have the same concern that this investigation will distract the H-1B/green card dialogue from the real issues. But I must say it's interesting for me to see Fragomen squirm. And in fact the case actually highlights the central role that the loopholes play, as you'll see. The DOL says (see their statement enclosed below) that "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." What does this really mean? Recall "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 the base posting on this (http://heather.cs.ucdavis.edu/Archive/YouTubeVideosH1B.txt and several others, titled LegalNewspaperViewOfTubeGate.txt, PittsburghYouTube.txt, TubeGateFirmReplies.txt and CohenAndGrigsbyPrevailingWage.txt in that same directory). In video 12, they show how to pay H-1Bs and greencard sponsorees below-market wages, in FULL COMPLIANCE WITH THE LAW. But it is video 9 that has gotten the most attention, as they show employers who wish to sponsor a foreign worker for a greencard how to avoid hiring American workers. In those presentations, the Cohen and Grigsby firm promises to work with their clients, i.e. employers of foreign workers, to insure that the employers' goal is met--to avoid hiring Americans. That's basically what Fragomen seems to be accused of. Yet as the ILW editorial, also enclosed below, points out, these employers are merely exercising their right to legal counsel. Sure, it's counsel regarding odious loopholes that undermine the putative intent of the law, but as long as the loopholes are there, the employers have the right to use them and to get advice from counsel as to how to do so. Their doing so is no different from using a good tax accountant who knows all the loopholes. Again, I think the whole thing is outrageous, but I really don't see that DOL has a case. Now, I urge everyone to see another video, this one by journalist Sue Kwon at the CBS affiliate in San Francisco, viewable on--of course--YouTube, at http://youtube.com/watch?v=OhGG2O2jaCU&feature=related There you'll see unemployed engineer David Huber, telling the viewing audience exactly what happened when he applied for a job at Cisco Systems. Turned out that the contact person stated in the Chicago Tribune ad was a lawyer with...Fragomen, Del Rey, Bernsen & Loewy, LLP. Programmer Pete Bennett is also featured. Dave Huber has given me some details on his adventure with Cisco and Fragomen, and is permitting me to share them here: % Regarding speaking with [Fragomen's] Megan Clarke: If you % recall, I saw the ad on Sunday, June 3, 2007. On Monday % morning, June 4, 2007, I called Cisco's HQ in San Jose and % spoke with a random operator. I confirmed that the person I % was talking to was working at Cisco in San Jose. I asked the % "operator" something to the effect I was trying to contact a % "M E Clarke". The operator said Clarke didn't work at Cisco, % but that there was a Megan Clarke, who worked at Fragomen. % % I had never heard of Fragomen. (And, of course, I didn't even know % about the C&G [Cohen & Grigsby] seminar.) So I googled % "Fragomen" and found out it was an immigration law firm. I'm % getting more curious now, so I decided to contact the closest % Fragomen office to San Jose. This office happened to be in Santa Clara. % I called the Santa Clara Fragomen office, and actually spoke with a % Megan Clarke. I asked her about the ad I saw. I confirmed through my % brief conversation with her, that she was the M E Clarke in the Cisco % ad. At first, she seemed open, and somewhat willing to answer my % questions about the ad. After about 2-3 minutes, I heard a sense of % nervousness in Ms. Clarke's voice, and she sort of ended the % conversation by saying I should just respond to the ad. % My recollection of this was that I was even more perplexed, thinking % that something just wasn't right: the newspaper ad; the immigration % law firm referenced in ad. Well, I think the mystery was solved for % me when I saw that C & G video. % After about almost a month (end of June), I decided, just for grins, to % respond to the Cisco newspaper ad. I sent my resume, via registered % mail, to the Cisco address in the ad. % I did get an eventual response from Cisco, which I think was a result % of this specific ad I responded to with registered mail. An Indian % contracting firm contacted me about a job a Cisco in San Jose, paying % the princely sum of about $30 or $35/hour. This compensation was/is a % joke, needless to say. Kwon's piece also includes snippets from the Cohen and Grigsby videos, but it has something even more important from my point of view, a brief interview with a representative of Teksystems. The rep does exactly what I described above, and have described so often: He says that yes, they hear of some employers underpaying H-1Bs, but the vast majority comply with the law, so all the system needs is more enforcement. That of course hides the fact that THE LAW IS THE PROBLEM, DUE TO GAPING LOOPHOLES. The Teksystems guy was giving the line developed by the industry lobbyists, "Some firms cheat, but most obey the law, so all we need is better enforcement of the law." It's completely misleading, deliberately so in order to divert attention from the core problem, the loopholes. As Sen. Grassley put it so well recently on the industry lobbyists' slick PR, "Nobody should be fooled." Norm 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. U.S. Department of Labor Frances Perkins Building 200 Constitution Avenue, NW Washington, DC 20210 http://www.ilw.com/immigdaily/digest/2008,0605.shtm Immigration Daily June 5, 2008 Comment 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 attorneys before hiring apparently qualified U.S. workers who have responded to recruitment required by the permanent labor certification program ... 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. The real issues here are not one specific firm, and not even the proper role of immigration lawyers. The real issue is that DOL took the gloves off a year ago, and is determined to attack the bar. The anti-fraud rule illegally interfered with the attorney-client relationship, and these audits by DOL are more steps in the same direction. To its credit, AILF sought plaintiffs to litigate DOL's illegal rule, unfortunately, no one stepped forward. In a similar situation in the 1980s, attorney Dale Schwarz was targetted by federal agents with a wire on (he was fully exonerated subsequently) also on a labor cert matter. At that time, a young lawyer named Ira Kurzban stepped forward to lead the bar on this important issue. His election to the highest elective position available to an AILA member (President-Elect, he ran by petition) marked the first and so-far only time such an event occurred in the bar. Similar leadership is once again needed. DOL/ETA says: "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 ... " If DOL harrasses large employers enough, they will simply move the jobs overseas. Far from ensuring that American workers have access to jobs, DOL's actions, if continued along this trajectory, will only ensure that American jobs are destroyed. Moving the jobs overseas will be an inconvenience for large employers for sure, but the impact on the lives of US workers will be catastrophic. As all the above has surely made clear, this is hardly the last we have heard of the matter. Further developments are to be expected, stay tuned to Immigration Daily! We welcome readers to share their opinion and ideas with us by writing to editor@ilw.com.