Fragomen law firm in trouble
Fragomen law firm in trouble
Date: Friday, June 06, 2008 2:06 AM
<<<<< JOB DESTRUCTION NEWSLETTER No. 1875 -- 6/05/2008 >>>>>
An immigration law firm appears to be in the DOL doghouse. On June 2nd the
Dept. of Labor claimed that Fragomen, Del Rey, Bernsen & Loewy LLP might have
helped companies to hire foreigners even when there were qualified Americans.
The DOL said they are going to audit all of Fragomen's permanent labor
certification applications to see if anything illegal or improper was done.
FOLKS, KEEP YOUR EYES ON THE BALL!
Pay close attention, because the DOL isn't going to look at their H-1B, H-2B,
L-1, O, or whatever other visas Fragomen handles, just EB green cards. This
investigation might resemble an Inspector Clouseau sequel.
(O_/ __ \_O)
/ (o)__(o) \
(__.--\/--.__)
====(__/\__)====
`--'
_||_
/'....'\
| : : |
||: :||
||: :||
||: :||
||: :||
||: :||
||: :||
||: :||
|| `..' ||
( | || | )
\| || |/
| || |
| || |
| || |
| || |
| || |
__,-' || '-,__
(___,--'`--,___) dlK
It's a perplexing allegation because that's what immigration lawyers do --
they coach employers on how to exploit the loopholes in the law, and how to
avoid hiring more expensive Americans. It's no different than you hiring an
expert at H&R Block to do your taxes because their experts know the tax
loopholes. There is nothing illegal about hiring an expert, and I would be
surprised if Fragomen broke the law.
Just so you understand the entire process and the source of the DOL complaint,
let me explain the permanent visa system in 5 easy steps:
1 -- Employer decides to hire a cheap foreigner on an EB green card, or they
want to convert one of their low wage H-1B or OPT employees to a permanent
resident. At this early stage the employer has no intention of hiring an
American.
2 -- At this point they may use an immigration lawyer to fill out the
paperwork, or they may have a hack at their HR department do the grunt work.
3 -- Employer places a phony ad in the newspaper in order to claim they looked
for an American. This gives them a paper trail in case they get audited.
4 -- Sometimes employers are unlucky because they get resumes from qualified
Americans. In order to cover their butts they send all resumes they receive to
the law firm, or they ask the lawyers how to legally reject the resumes. The
law firm figures out how to disqualify each and every American resume so that
the company isn't bothered with doing fake interviews, or with inquisitive do-
gooders from the guvment. It's this step in the process that the DOL seems to
be having a problem with -- they contend the lawyers are doing too much
coaching. The lawyers call this their "Right to Counsel." Frankly speaking,
lawyers and employers do have that right, so unless the DOL has more to hassle
Fragomen with, their case will fall apart.
5 -- The visa is rubber stamped by the DOL, and everybody is happy except the
American who never had a chance to get the job. Many of us in the real world
call this "getting screwed".
The DOL's investigation is probably much ado about nothing because Fragomen
doesn't need to break laws in order to avoid hiring American workers. That is
because he is one of the architects of the green card and H-1B laws. He
literally wrote the laws and he methodically put ample loopholes into the law
in order to discriminate against qualified Americans. Fragomen rigged the laws
because it was good for his business.
You can bet the DOL's fishing expedition will turn up something Fragomen's
firm has done wrong because they process thousands of visas. But don't expect
Fragomen or his slimy partners to take the hit. Probably a low level paralegal
that is working there on an OPT visa will get fired and forced to return to
India. No big deal for the money-grubbing lawyers who would consider that
collateral damage.
Don't get me wrong though, I'm all for the DOL audit. I haven't stopped
laughing since I heard about it! For one thing it will keep Fragomen's
partners very busy defending themselves, which might distract them from
processing as many visas -- and that's bad for their business (wink).
What's bad for Fragomen is good for us. Of course that will mean more business
for other sleazeballs like Siskind or Cohen&Grigsby. You remember the
Cohen&Grigsby tubegate scandal, don't you?
"Our goal is clearly NOT TO FIND a qualified and interested U.S. worker."
-- Larry Lebowitz, Cohen & Grigsby seminar, May 15th, 2007
Clearly, the goal of the DOL should be to treat all of these lawyers in a fair
manner. Therefore, in the interest of fair play, I call on the DOL to audit
the LCAs of all immigration law firms.
The DOL investigation is already starting to get fun. You just can't help but
get a warm fuzzy feeling as you read the ranting at the Immigration Lawyer's
Website (see below). The American Immigration Lawyers Association
(AILA) wasted no time writing a letter to their stooge, Elaine L. Chao.
Lawyers like Greg Siskind are having hissy fits on their blogs (see below).
Siskind actually recognizes that the vultures are going to pick at Fragomen's
carcass, but what he doesn't say is that he will be one of the beneficiaries
as clients flock away from the Fragomen group, who may get a reputation of
being damaged goods.
Yeah, let's just sit back and enjoy this one.
Materials Included
http://www.dol.gov/opa/media/press/eta/eta20080752.htm
ETA News Release
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
http://www.ilw.com/immigdaily/digest/2008,0605.shtm
DOL Puts Foot In Mouth
http://blogs.ilw.com/gregsiskind/files/aila_fragomen_letter.pdf
AILA letter to Elaine L. Chao
http://blogs.ilw.com/gregsiskind/2008/06/in-defense-of-f.html
IN DEFENSE OF FRAGOMEN, by Siskind
+++++++++++++++++++++++++++++++++++++++++++++++++++
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.
+++++++++++++++++++++++++++++++++++++++++++++++++++
http://www.ilw.com/immigdaily/digest/2008,0605.shtm
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
Back to archives