Date: Mon, 15 Oct 2007 23:05:48 -0700 From: Norm Matloff To: Norm Matloff Subject: "TubeGate" firm replies to congressional query To: H-1B/L-1/offshoring e-newsletter Recall that over the summer some critics of H-1B stumbled upon a set of videos placed on YouTube by a prominent immigration law firm. The videos form a guide for employers on how to use loopholes in the law to (a) avoid hiring American workers when the employers wish to sponsor a foreign worker for a green card and (b) pay foreign workers less than Americans. The videos weren't shocking to those of us who have been saying for years that the loopholes (NOT lack of enforcement) are the real problem with H-1B and employer-sponsored green cards, but for those in Congress and the press who've been misled by industry lobbyists for years, the videos were a real eye opener. See http://heather.cs.ucdavis.edu/Archive/YouTubeVideosH1B.txt http://heather.cs.ucdavis.edu/Archive/CohenAndGrigsbyPrevailingWage.txt http://heather.cs.ucdavis.edu/Archive/LegalNewspaperViewOfTubeGate.txt http://heather.cs.ucdavis.edu/Archive/PittsburghYouTube.txt Senator Grassley and Rep. Smith sent a letter to the law firm, demanding an explanation. But the true explanation is that (a) the law is full of huge loopholes, which made the firm's actions fully legal, and (b) those loopholes were deliberately put in there by the American Immigration Lawyers Association (AILA). When the law firm's head, Jack Elliott, says, # "We are well aware that many persons who understand the labor certification # process find it unfair to American applicants who are led to believe that # an advertised job posting represents an open position that an employer # wishes to fill immediately," Elliott added. "However, the appropriate # response, we respectfully suggest, is not to challenge those who attempt to # live by the rules, but to change the rules." he is recognizing (a) but hiding (b). Elliott's suggestion that the critics "merely" have to "change to the rules," is absurd, given that he and his friends made those rules and have used their huge clout to prevent any change to them. This is the height of cynical, manipulative and deceptive behavior. And so is this: # In the case of green card applicants, Elliott argued that many of the # foreign nationals seeking permanent residency status in the U.S. have been # on the job for several years. And by the time an employer decides to apply # for a PERM certification, he wrote, "the company normally has decided that # the foreign national employee is of critical importance to the company." # According to Elliott, the DOL's advertising requirement compels companies # to place help wanted ads for "positions already occupied by a foreign # worker whom the employer is not seeking to replace." The PERM process # wasn't developed by the DOL "to find jobs for U.S. workers," he continued. # "Rather, it is one step in determining whether a foreign national employee # of a U.S. employer ... should be able to obtain permanent resident status # in the United States." These are outrageous statements. Did Elliott really mean to say that DOL went through its very long process of developing the PERM system just for the purpose of maintaining a charade? And again, Elliott hid a key point from Grassley and Smith: the reason that that foreign worker is in the job in the first place is that the H-1B program has no requirement that the employer recruit U.S. workers, and that the AILA has always successfully fought any attempt to impose one. The only such requirement is in the green card process, and basically Elliott and the AILA (see the PittsburghYouTube.txt posting linked to above) are saying that it shouldn't be there either. They don't want employers to be required to recruit Americans at ANY stage. They like the present charade just fine as it is. Norm http://www.computerworld.com/action/article.do?command=viewArticleBasic&taxo nomyId=10&articleId=9041119&intsrc=hm_topic Hiring video's aftermath: Law firm says words ill-chosen, but advice proper Patrick Thibodeau October 05, 2007 (Computerworld) The law firm that last spring inadvertently gave H-1B visa opponents a YouTube sound bite for the ages said in a lengthy letter to two federal lawmakers that it "regrets certain ill-chosen language" but did nothing legally or ethically wrong. Pittsburgh-based Cohen & Grigsby PC sent the letter to Sen. Chuck Grassley (R-Iowa) and Rep. Lamar Smith (R-Texas) in July, after the two congressmen had written the law firm with questions about a video posted on YouTube LLC's Web site featuring clips from a seminar that Cohen & Grigsby held May 15. During the seminar, attorneys from the firm's immigration law group provided advice on hiring foreign nationals and obtaining green cards for workers from overseas. Grassley's office provided a copy of Cohen & Grigsby's letter to Computerworld this week, following a request for the document. It also released a letter to Grassley from Emily Stover DeRocco, assistant secretary for training and administration at the U.S. Department of Labor, who wrote that the DOL was reviewing green card applications filed by Cohen & Grigsby for clients "to verify that U.S. workers who applied but were not selected for advertised positions were rejected for lawful reasons." DeRocco's letter was a response to a request made by Grassley and Smith to DOL Secretary Elaine Chao, in which they asked the agency to review the YouTube video and investigate the law firm's procedures. A spokesman for Grassley said this week that the senator's office believes the Labor Department will "properly review" the green card applications submitted by Cohen & Grigsby. DOL officials couldn't be reached for comment on the matter, and the law firm declined to comment through a spokeswoman. As part of the Program Electronic Review Management (PERM) process, which is one of the steps in obtaining a green card, employers are required to place help wanted ads, with the intent of either hiring U.S. workers or showing that no qualified Americans are available for the job that a foreign national holds or is seeking. However, the positions advertised for under the PERM process are derided as "fake jobs" by critics, who contend that the employers aren't seriously looking for candidates other than the foreign workers they already have in mind. Immigration law attorneys have argued in many cases that companies are simply seeking to hire an H-1B worker who may be a multiyear employee but whose temporary visa has reached its end. The issue is a volatile one, and it exploded into public view last June. Cohen & Grigsby taped portions of its hiring practices seminar and posted the videos on its Web site, evidently for marketing purposes. But when Kim Berry, president of the Programmers Guild in Summit, N.J., saw the video, he annotated excerpts of it and posted his version on YouTube. The most memorable part of the YouTube video is two sentences uttered by Lawrence Lebowitz, an attorney at Cohen & Grigsby, during an explanation of the PERM application process to employers. "Our goal is clearly not to find a qualified and interested U.S. worker," he said in the video. "And that, in a sense, sounds funny, but it's what we are trying to do here." In the letter that Grassley and Smith sent to Chao, they claimed that the video exposed a "blatant disregard for American workers and [a] deliberate attempt to bring in cheaper foreign workers through the H-1B program." But Jack Elliott, the law firm's president, wrote in his July 10 letter to the lawmakers that Cohen & Grigsby officials "reject any suggestion that members of the firm have engaged in any conduct that is illegal, abusive, discriminatory against U.S. citizens or unethical." Elliott added that the comments about recruitment practices made at the seminar by Lebowitz and other Cohen & Grigsby employees didn't actually relate to H-1B visas, "because recruitment is not a part of the normal H-1B statutory or regulatory scheme." He contended that the discussion of H-1B visa issues at the seminar "comported in all respects with applicable legal requirements." In the case of green card applicants, Elliott argued that many of the foreign nationals seeking permanent residency status in the U.S. have been on the job for several years. And by the time an employer decides to apply for a PERM certification, he wrote, "the company normally has decided that the foreign national employee is of critical importance to the company." According to Elliott, the DOL's advertising requirement compels companies to place help wanted ads for "positions already occupied by a foreign worker whom the employer is not seeking to replace." The PERM process wasn't developed by the DOL "to find jobs for U.S. workers," he continued. "Rather, it is one step in determining whether a foreign national employee of a U.S. employer ... should be able to obtain permanent resident status in the United States." Grassley and Smith, in their letter to the law firm, said comments made in the video advise potential employers that they can meet the Labor Department's requirements by advertising positions "in places where they will not find the most qualified applicant" -- for instance, in publications with limited circulations. In response to that point, Elliott wrote in his letter, "It is common and legal for employers to choose less expensive options that fully meet DOL requirements." "We are well aware that many persons who understand the labor certification process find it unfair to American applicants who are led to believe that an advertised job posting represents an open position that an employer wishes to fill immediately," Elliott added. "However, the appropriate response, we respectfully suggest, is not to challenge those who attempt to live by the rules, but to change the rules." Berry called the advertising requirement a sham and said that even if qualified workers apply for a job, they know they won't get it. The mission of the Labor Department is to help job seekers, Berry said. But he claimed that there's a "wide discrepancy" between the DOL's stated mission and the agency's "condoning of bringing in qualified Americans to job interviews for the sole purpose of finding some basis to disqualify them, and to give those jobs to a citizen of another country." John Miano, the founder of the Programmers Guild, said the YouTube video will remain "the theme song of any debate" on this issue. Miano doesn't expect the video to change anything, but he pointed out that when employers advertise for workers, they attest that they're acting in good faith. That isn't always the case, he said.