Labor audit frustrates companies

Date: Monday, July 07, 2008 1:07 PM

<<<<< JOB DESTRUCTION NEWSLETTER No. 1885 -- 7/07/2008 >>>>>

Immigration attorneys are getting very nervous as the Dept. of Labor audit of
the Fragomen law firm gets underway. This Wall Street Journal article is
particularly interesting in the last two paragraphs, where Gregory Jacob, the
Labor Department's solicitor, makes some puzzling statements.

Jacob admits that employers have "real incentives" to not make "good-faith"
searches for U.S. workers. That seems to be OK with him as long as qualified
U.S. workers are rejected by using the generous and ample loopholes provided
in the law (many of which were inserted into the regulations by Fragomen
lobbyists).

Jacob even acknowledges that employers sometimes claim that they have made a
good-faith search even when they already have the foreigner on the payroll,
and even when they have no intentions of hiring an American as long as they
can get a green card for their foreign employee. Charades of that type seem to
be OK with Jacob also.

Considering the attitude at the DOL it's not at all obvious what they are
looking for at Fragomen. Perhaps they suspect Fragomen got loose with the few
rules that are there to protect Americans from the chronic abuse by Fragomen's
clients.

The audit will have some positive benefits though -- at the very least we can
get some entertainment as the lawyer-sharks slither and squirm under the
unwanted publicity.

I grabbed a few excerpts from a July 2 newsletter by the Immigration Lawyers
Website (ILW.com). The angst the lawyers are feeling is good news and way
overdue. I'm sure all of you will shed some baby crocodile tears when you read
them.

The last bullet point is my favorite: slave traders at the ILW are whining and
sniveling that the DOL is being unfair to lawyers who are providing help to
U.S. companies that replace Americans with cheap foreign labor.
Hmmmmmm. That's definite a change for the better!

Excerpts from ILW newsletter, July 2, 2008

++ The matter [the Fragomen audit] is now at the highest levels of DOL.

++ In the days and weeks to come, it is entirely likely that the
++ Fragomen
audits will end, and everyone will go back to business as usual (unless DOL
wants to dig itself into a deeper hole for a program with little legal
defense). But things will not be the same, no matter how much anyone wants
them to be.

++ Because of its ripple effects, and its likely future reaction (see
below), the DOL action will almost certainly result in extensive delays, not
just for right now, but down the road too. The days of quick PERM processing
are over.

++ Partly because DOL has lost this battle, and partly because harassing
employers is both a hobby and a job for some at DOL, we expect that intrusive
audits, especially on business necessity and lawful rejection, will
dramatically increase in the months and years to come.

++ The real error, for which DOL is now paying, is that it set up a
++ media
circus by issuing press releases based on vapor instead of facts, thereby
attacking a law firm's reputation using unfair means.

+++++++++++++++++++++++++++++++++++++++++++++++++++

http://www.dailyherald.com/story/print/?id=213386

Labor audit frustrates companies

The Wall Street Journal
Published: 6/28/2008 11:54 PM
Some of the nation's biggest companies are expected to face delays in securing
green cards for some foreign workers due to a Labor Department audit that has
sparked anger in legal and business circles.

The Labor Department announced this month that it was auditing labor
applications filed by immigration law firm Fragomen, Del Rey, Bernsen & Loewy
LLP of New York, which the department alleged had improperly advised some
clients seeking permanent resident status, or green cards, for foreign
workers.

People familiar with the firm said it has about 3,000 green-card applications
pending on behalf of companies, including International Business Machines
Corp., General Electric Co. and Bank of America Corp.

The audit is expected to delay those applications, the department said. GE
said it has 70 applications subject to the audit.

"Our actions on behalf of our clients have at all times been lawful and
proper," said Austin Fragomen Jr., the firm's chairman.

Gregory Jacob, the Labor Department's solicitor, said the department routinely
audits applications for green cards "to ensure the integrity of the program."
The audits typically delay the applications by no more than eight months, he
said. The department hasn't indicated that Fragomen's clients engaged in
wrongdoing.

At issue are Labor Department regulations that limit the extent to which
immigration attorneys can advise companies in the green-card application
process. Many companies recruit highly skilled foreign workers, especially in
certain fields such as engineering and physical sciences. Foreign workers
typically can remain in the U.S. on temporary visas only up to six years,
prompting companies to sponsor the workers for green cards that would allow
them to remain indefinitely.

As a condition for such green cards, companies must first certify to the Labor
Department they haven't been able to find "minimally qualified" U.S.
workers willing to fill the jobs at issue. The Labor Department contends its
regulations limit the role lawyers can play in advising companies as to
whether American workers can be deemed minimally qualified. In a recent
statement, the department said these regulations safeguard "against the use of
attorneys to find reasons not to hire U.S. workers."

The department's "new interpretation of the regulations has no basis in law
and deprives the Fragomen firm's clients of their constitutional right to
counsel," said Aaron R. Marcu, who represents the firm in the audit.

The Labor Department said the Fragomen firm improperly instructed some clients
to contact Fragomen lawyers before hiring apparently qualified U.S.
workers.

"There is no legitimate reason to consult with immigration attorneys before
hiring apparently qualified U.S. workers," the department said in announcing
it would audit every application Fragomen lawyers had filed for companies
seeking green cards for foreign workers.

"We do not tell our clients whom to hire or not hire," said Fragomen.

The audit, according to immigration lawyers, could deter companies from asking
attorneys to help them decipher Labor Department rules. "Attorneys need to be
involved in 1/8the green-card 3/8 process," said New York immigration lawyer
Philip Kleiner. "It's more complicated than tax work."

The U.S. Chamber of Commerce has met with the Labor Department to voice its
concerns about the audit. It could "adversely impact top companies," said
Randy Johnson, a chamber vice president, who specializes in labor and
immigration issues.

Jacob, the Labor Department's solicitor, said the department understands that
companies need to talk to lawyers to ensure they abide by their legal duties.
But "the assessment of whether someone is qualified for a job is not, as a
general matter, a legal question," he said. Often, he said, companies don't
really want to find qualified U.S. workers, because they already have a
foreigner in the job.

"We have to be particularly cognizant of the fact that there can be real
incentives for employers to not make good-faith assessments of U.S.
workers," Jacob said.

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