Date: Sun, 24 Jun 2007 16:17:00 -0700 From: Norm Matloff To: Norm Matloff Subject: Legal Intelligencer view of TubeGate To: H-1B/L-1/offshoring e-newsletter I've stressed that the outrageous practices described in the Cohen & Grigsby videos is STANDARD PRACTICE and FULLY LEGAL. This illustrates my constant point that reform of foreign work visas must focus on fixing the loopholes, not stepping up enforcement of current laws. But as if these practices are not bad enough already, we are seeing other immigration attorneys actually claim that they have the right to IGNORE THE LAW. Attorney Klasko is saying so in the article enclosed below. Here is the relevant excerpt: # Some have said that looking at the comments in context to the discussion # might make a difference. # Ron Klasko of Philadelphia immigration boutique Klasko Rulon Stock & Seltzer # said the only reason employers need to engage in a federally mandated search # for American workers is if they already have a foreign national in place for # the position. # "In almost every case there's already somebody in the job," Klasko said. # "You don't initiate the process unless you have a really critical foreign # national" in need of a green card. # It may be, he said, that the firm just didn't express that artfully enough, Klasko says, correctly, that when an employer sponsors a foreign worker for a green card, that worker is typically already working for the employer, holding an H-1B visa. Klasko concludes that "therefore" the employer has a right to ignore the law that says the employer must search for an American to fill the position. Note that Klasko isn't claiming that the law has an exception for such a situation; on the contrary, he is agreeing that the law exists but claims that the employer and his attorney have the right to ignore the law! Klasko's words echo those of American Immigration Lawyers Association spokesperson Crystal Williams last week; see http://heather.cs.ucdavis.edu/Archive/PittsburghYouTube.txt The fact that even this AILA rep is making such comments dramatizes my point that Cohen & Grigsby is not some rogue law firm. ALL firms engage in the practices shown in the videos. Note too, as I mentioned before, that since the H-1B visa does not require the employer to recruit American workers, what Klasko and Williams are saying is that the employer should never have to recruit Americans, either at the H-1B stage or the green card sponsorship stage. # making the concept seem fraudulent. Klasko then criticizes the law: # Employers have to create a list of criteria for the position in which they # wish to place the foreign worker and submit it to the department, he said. # Companies aren't allowed to just look for the best candidate, but rather any # American workers who meet the minimum requirements outlined by the firm. # "That's absurd," Klasko said. # The problem is compounded, he said, because subjective criteria such as # whether the person is articulate or whether he or she went to a top-tiered # school can't be considered. What he is saying is true but egregiously misleading. As the videos showed, the loopholes are so huge that the employer will exclude all the American appliants in the end. Remember, as immigration attorney Joel Stewart infamously said, "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 that's not all. The employer can then ignore those same traits he thinks make the foreign worker valuable, since as graduating from a top school, when the employer figures prevailing wage! On the open market, he'd have to pay more for a graduate from a top school, but he can hire a foreign national for the price of a graduate of a mediocre school. In other words, these lawyers have got you coming and going. :-) Speaking of quality, note that I have always been strongly in favor of facilitating the immigration of "the best and the brightest." But as I've pointed out before, there are separate immigration visa categories for them, both for temporary visas (O-1) and green cards (EB-1). In fact, Klasko even has a tutorial on them, at http://www.klaskolaw.com/articles.php?action=view&id=45 Norm http://www.law.com/jsp/article.jsp?id=1182503156967 Immigration Law Seminar Generates Unwanted Publicity for Firm Firm says attorneys' comments have been 'commandeered and misused' Gina Passarella The Legal Intelligencer June 25, 2007 It was the seventh annual immigration law update held by Cohen & Grigsby, but probably the first time the seminar reached thousands of YouTube viewers. The firm has seen a media and political firestorm regarding comments made by its attorneys at the May seminar regarding the ways employers can eliminate American job applicants in order to obtain green cards for foreign workers. Lawrence Lebowitz is an immigration attorney at Cohen & Grigsby, a Pittsburgh firm, and the firm's vice president of marketing. On the video, Lebowitz was talking with other firm employees on the panel about the federal requirements for recruiting American workers before the job can be given to -- and an application for a green card can be made on behalf of -- a foreign worker. "Our goal is clearly not to find a qualified and interested U.S. worker," Lebowitz said. "And, you know, that, in a sense, that sounds funny, but it's what we're trying to do here." Other panelists laid out ways in which employers could comport with the federal requirements for advertising to American workers, but could limit the number of potential applicants. Advertising in papers with lower circulation was one example given. "So certainly we are not going to try to find the place where the applicants are going to be the most numerous," Lebowitz said. "We're going to try to find a place where, again, we're complying with the law and hoping and likely not to find qualified and interested worker applicants." A nearly five-minute clip of the seminar was edited by a software professionals advocate, The Programmers Guild, to include captions and music of the firm's panel discussion on immigration. It was posted on YouTube earlier this week and has already received more than 54,000 views and 500 comments as of Friday afternoon. Even CNN's Lou Dobbs took an interest in Lebowitz's comments, airing a piece on the issue last week. "These are Americans trying to screw American workers," Dobbs said. In a statement released by the firm, Cohen & Grigsby said it had a responsibility to inform its clients of the laws governing employment of international workers. "To that point, we stand by the substance of our recent Immigration Law Update Seminar," the firm said in the statement. "We regret the choice of words that was used during a small segment of the seminar. It is unfortunate that these statements have been commandeered and misused, which runs contrary to our intent." Cohen & Grigsby has not only received media attention for its remarks, but has also caught the ire of an Iowa senator and a Texas congressman. Sen. Chuck Grassley and Rep. Lamar Smith wrote a letter to Cohen & Grigsby reprimanding the firm for its comments and requesting the names and amount of clients who have used the firm to bring H-1B workers for permanent placement. The pair also sent a letter to U.S. Secretary of Labor Elaine Chao to request that she investigate "the law firm's unethical procedures and advice to clients." In the letter to Chao, Grassley and Smith said the firm videotaped the seminar "exposing the blatant disregard for American workers and deliberate attempt to bring in cheaper foreign workers through the H-1B program." Some have said that looking at the comments in context to the discussion might make a difference. Ron Klasko of Philadelphia immigration boutique Klasko Rulon Stock & Seltzer said the only reason employers need to engage in a federally mandated search for American workers is if they already have a foreign national in place for the position. "In almost every case there's already somebody in the job," Klasko said. "You don't initiate the process unless you have a really critical foreign national" in need of a green card. It may be, he said, that the firm just didn't express that artfully enough, making the concept seem fraudulent. The issue of backing a foreign worker for permanent residency status is not a new issue and one that is a real problem for employers, Klasko said. "The recruiting system that has been set up by the Department of Labor does not allow employers to use normal recruitment procedures," he said. Employers have to create a list of criteria for the position in which they wish to place the foreign worker and submit it to the department, he said. Companies aren't allowed to just look for the best candidate, but rather any American workers who meet the minimum requirements outlined by the firm. "That's absurd," Klasko said. The problem is compounded, he said, because subjective criteria such as whether the person is articulate or whether he or she went to a top-tiered school can't be considered.