Walking The High Wire Without A Net - The Lawyer's Role In The Labor Certification Process
FOR EVERYTHING THAT IS TO FOLLOW:
"If I had a world of my own, everything would be nonsense. Nothing would be what it is, because everything would be what it isn't. And contrary wise, what is, it wouldn't be. And what it wouldn't be, it would. You see?"
Alice in Alice's Adventures in Wonderland by Charles Lutwidge Dodgson (Lewis Carroll) originally published by MacMillan & Co, London (1865).
The labor certification process requires an employer to conduct a "good faith" recruitment of U.S. workers. The very notion of "good faith" seems oddly out of place when used with reference to a recruitment effort that achieves its desired objective by failing to locate any qualified job applicants. Only here do you win by losing. Unable to utilize real world recruitment standards, compelled to base evaluations upon the entirely artificial concept of "minimal qualifications" that does not exist outside the cordon sanitaire of 20 CFR §656, wedded to an inflexible job description that can never change regardless of an employer's business needs or a worker's evolving talents, and effectively prohibited from taking into consideration the very subjective character traits whose presence or absence is the most reliable predictor of effective job performance, the labor certification process is fundamentally at odds with the very economic system it allegedly seeks to serve. Justification of labor certification can extend no further than a test of the relevant job market.
However, an employer is under no legal obligation to hire a qualified applicant at the end of the process. If the employer finds a U.S. worker who is qualified for the position, the labor certification dies. In other words, the employer cannot file the labor certification on behalf of the foreign national worker. The program does not create jobs for U.S. workers. The Department Of Labor's ("DOL") labor certification program has frustrated employers who are desperate to retain badly needed foreign national workers at prevailing wages by creating undue burdens and excessive delays. The DOL has also failed to provide jobs to U.S. workers even though it forces the employer to conduct elaborate tests of the labor market to retain the foreign national employee. Indeed, as presently conceived and administered by the DOL, labor certification is a job killer, hurting the employment prospects of the domestic work force by artificially preventing US employers, most especially emerging companies who are the engine of job creation, from treating the foreign national as an asset to be maximized in way that promotes job growth and strengthens the very economy on which we all depend. Indeed, no intellectually honest examination of the labor certification system can fail to detect the pervasive distrust of the entrepreneurial spirit and the very ethos of capitalism itself that the DOL brings to each phase of the PERM process.
Within this contradictory process that has let us down us in the past, and will continue to disappoint in the future no matter how the DOL window dresses it up each time, the lawyer plays an ethically complex role, an ethical tension made all the more intense by a persistent and maddening lack of definition. If the lawyer is deemed to be representing both the employer and the foreign national, he or she must ensure that the representation is not compromised due to potential or actual conflicts between the co-clients. In the performance of his/her duty to zealously represent the client, the lawyer may not compromise the cardinal ethical duty of candor towards the tribunal. This is not an easy task, especially when the "tribunal" in question is a government agency that questions the moral legitimacy of the lawyer's involvement in the labor certification process and seeks to curb it at every turn. While the lawyer is required to advise the employer client about ensuring the integrity of the recruitment process, there may also be an inherent tendency on the part of the employer to craft the position and its requirements in a way that will minimize the potential of U.S. qualified workers applying for the position. Moreover, in most situations, the foreign national worker is already filling the position on a non-immigrant work visa such as the H-1B. To question the integrity of testing the job market under such circumstances is to challenge the validity of the very notion of employment-based immigration itself.
This article focuses on the lawyer's role in the labor certification process through an analysis of 20 CFR §656.10(b)(2), which spells out what a lawyer can or cannot do during the artificial recruitment process created by the DOL. Through this analysis, the authors will highlight the divergence that may arise between the employer and the foreign national worker, as well as the ethical conflicts that may be encountered by the lawyer while seeking to zealously represent a client in navigating through the DOL's artificial and contradictory recruitment procedures. The authors offer some modest proposals for practitioners on ways to identify these tensions before they explode. The authors will also recommend policy changes to bring the process more in line with statutory and original Congressional intent, and thus, more reflective of actual economic reality. We also attempt, doubtless with uneven success, and not a little trepidation, to give nuts and bolts advice to lawyers in the trenches confronting the rising fall out from the sharp economic decline that now has the American and world economy in its iron grip.
Of all times in recent memory, now is undoubtedly the most difficult climate to file any labor certification. At a time of economic seizure and rising unemployment, when systemic dislocation and consumer distrust rule the day, it is neither novel nor surprising that the US Department of Labor is less receptive than ever before in our lifetime to claims of shortage occupations. Clearly, agency reaction, particularly in a Democratic administration with closer ties to organized labor, will not be long in coming.1 This does not mean it cannot and should not be done. It most certainly means that the level of preparation and the sensitivity to ethical conflicts must rise to meet the daunting challenges of this more difficult day.
A Brief Overview Of The Evolution Of DOL's Maddening Recruitment Process
INSTRUCTIONS FOR THE READER:
"When I use a word, " Humpty Dumpty said, in a rather scornful tone, "it means just what I choose it to mean-neither more nor less."
Lewis Carroll, Through The Looking Glass.
Before we delve into the Byzantine intricacies of 20 CFR §656.10(b)(2), the statutory basis for labor certifications is provided in §212(a)(5) of the Immigration and Nationality Act ("INA"). Under INA §212(a)(5), an alien is deemed "inadmissible unless the Secretary of Labor" certifies, inter alia, that "there are not sufficient workers who are able, willing, qualified…and available at the time of application" among the U.S. workforce. Designed to fail, labor certification places both lawyers and the clients they serve in the logically impossible and ethically compromised position of having to prove a negative, a feat of magical power that taxes the imagination of the most creative advocate.
A plain reading of INA §212(a)(5) does not in any way suggest that an employer must seek to recruit U.S. workers in order for the Secretary of Labor to certify that there are a lack of U.S. workers who are qualified and willing at the time of the application. While the employer must shoulder the burden of going forward with evidence of the unavailability of U.S. workers, the INA has never changed, placing now, as it has in the past, the burden of proof squarely where it belongs, on the Secretary of the DOL itself.2 Yet, DOL has promulgated regulations that specify elaborate recruitment measures,3 and standards for determining whether a given domestic applicant is qualified for the position.4 While in the real world, an employer would seek to recruit the most qualified applicant employing both objective and subjective criteria, under the DOL regulations a job applicant will be considered qualified if he or she satisfies "the employer's actual minimum requirements for the job opportunity," as stated and advertised by the employer.5 The very notion of a "job description" seems entirely bizarre since no employer in the real world thinks that way. Rather, they visualize changing needs, shifting priorities, emerging challenges and how to use the talents of their workers in a way that promotes efficiency and maximizes profit. Query: Is the lawyer zealously promoting the legitimate commercial interests of his or her employer client when they compel the client to scrap their normal modus operandi and adopt criteria they neither endorse nor understand solely to avoid the wrath of the DOL? Thus, even if this applicant's overall qualifications are far inferior to the qualifications of the foreign national, so long as the U.S. worker applicant meets the job's minimum requirements, he or she is considered qualified for the position. Furthermore, an employer may not include unduly restrictive requirements in describing the position, unless the employer can justify them through business necessity.6
Interestingly, INA §212(a)(5) is silent about requiring the employer to advertise or to establish that it advertised the position without reference to unduly restrictive requirements. It appears that the Department of Labor has created out of whole cloth the current system it enforces against U.S. employers. "There was no mention of individualized recruitment in the proposed labor certification regulations on November 19, 1965, or the final version of these same implementing rules that came out on December 3, 1965. There was no sense that employers had to advertise; the availability of U.S. workers, or their nonavailability, was based solely on statistics as embodied in Schedules A and B, respectively."7
In discussing the labor certification requirement in the 1965 Amendments,8 Senator Edward Kennedy (D-MA) stated:
"It was not our intention, or that of the AFL-CIO. that all intending immigrants must undergo an employment analysis of great detail that could be time consuming and disruptive to the normal flow of immigration. We know that the Department of Labor maintains statistics on occupations, skills, and labor in short supply in this country. Naturally, then, any applicant for admission who falls within the categories should not have to wait for a detailed study by the Labor Department before his certificate is issued ...(W]e would expect the Secretary of Labor to devise workable rules by which he could carry out his responsibilities under the law without unduly interrupting or delaying immigration to this country. The function of the Secretary is to increase the quality of immigration, not to diminish it below levels authorized by the law."9
Thus, one of the key drafters of the bill, Senator Kennedy, never mentioned nor contemplated the need for individualized, wasteful and unreal recruitment that the DOL has imposed on employers. Indeed, after all this recruitment, the DOL only requires the employer to test the U.S. labor market. In other words, employers must prove a negative, namely, that there are no minimally qualified workers for the position. The employer is not required to hire minimally qualified workers.10 If the employers find qualified workers, they are precluded from filing the labor certification application on behalf of the alien worker. Through this process, the DOL forces employers to make pawns of U.S. worker applicants by advertising the position, having them apply for the position, interviewing them, and in the end, not encouraging their hire even if the employer wants them in addition to the foreign national worker.
Due to backlogs that resulted in years of delays, the DOL implemented PERM (Program Electronic Review Management) on December 27, 2004,11 which is a departure from the previous practice that the DOL utilized for over 25 years. Prior to PERM, the DOL actually evaluated the employer's good faith recruitment before certifying the application. As a result, the DOL was unable to handle the volume of labor certification applications filed. Under PERM, the employer only attests that the recruitment and all the other requirements are complied with before electronically filing the application. The employer does not have to produce the documents evidencing its recruitment but remains subject to an audit, which could arise either randomly or by investigation.12. The objective of PERM was to reduce the backlogs and create a more efficient process. Unfortunately, the basic structure of the labor certification program remains unchanged, with the employer still having to prove that there are no available and qualified U.S. workers to fill the position. As a result, the new system has also experienced backlogs and an increased number of audits. PERM continues to remain flawed like its predecessor. Originally sold and purchased as a streamlined adjudication system, PERM is now succumbing to reality with the DOL auditing more and more applications in an inevitable, if frustrating, and ultimately flawed, attempt to ensure program integrity.
An Analysis of 20 CFR §656.10(b)(2)
HOW LAWYERS CAN UNDERSTAND DOL REGULATIONS:
"Then you should say what you mean," the March Hare went on. "I do, "Alice hastily replied, "at least I mean what I say, that's the same things you know." "Not the same thing a bit!" said the Hatter. "Why you might just as well say that "I see what I eat" is the same thing as "I eat what I see!"
Alice In Wonderland
Despite DOL's extremely complex labor certification process, whose lack of clarity serves no larger purpose other than its own perpetuation, the Agency has long been concerned about the lawyer's potential interference in the recruitment process.13 Yet, the rules governing labor certification are extremely complex, and the Board of Alien Labor Certification Appeals (BALCA) in In re Robinson recently held, "Given the legal requirements of the labor certification process, [the employer] might consider engaging an immigration attorney to assist her in understanding and complying with the regulations," which impose "an exacting process" that is "unforgiving of mistakes in filling out the application or misunderstandings about the regulatory requirements."14 At the same time, the current regulations assure that "employers may have agents or attorneys represent them throughout the labor certification process."15 However, 20 CFR §656.10(b)(2)(i) contains the following restriction:
It is contrary to the best interests of U.S. workers to have the alien and/or agents or attorneys for either the employer or the alien participate in interviewing or considering U.S. workers for the job offered the alien. (emphasis added). As the beneficiary of a labor certification application, the alien can not represent the best interests of U.S. workers in the job opportunity. The alien's agent and/or attorney can not represent the alien effectively and at the same time truly be seeking U.S. workers for the job opportunity. Therefore, the alien and/or the alien's agent and/or attorney may not interview or consider U.S. workers for the job offered to the alien, unless the agent and/or attorney is the employer's representative, as described in paragraph (b)(2)(ii) of this section.
The predecessor to this regulation, 20 CFR §656.20(b)(3)(i) and (ii), had identical language, but contained a singular, if perhaps not accidental,omission. The highlighted four words, "either the employer or" were conspicuously, indeed ominously, absent in § 656.20(b)(3)(i)16. At issue is whether the changes in the wording created new law and expanded obligation or merely reflected settled interpretation.
BALCA has routinely understood that the attorney for the employer is also the attorney for the alien, thus implicating the former provision, 20 CFR §656.20(b)(3)(i), if the attorney was involved in the recruitment unless this attorney was the representative who normally interviews or considers applicants for job opportunities. In Sharon Lim Lau,17 the attorney for the employer sent letters to the only two applicants who responded to the advertisements inviting them to interviews. It was also acknowledged that the attorney presided over the initial interviews to screen the applicants. The alien, who was the subject of this labor certification application, lived in Taiwan, and the attorney argued that he was the alien's agent only for purposes of providing a mailing address and to facilitate the alien's responses to requests by the government for information or documents. BALCA disagreed by holding that it was common in labor certification cases for the same attorney to be listed as the attorney for both the employer and the alien on the labor certification form.
Contrast Sharon Lim Lau with the earlier BALCA decision in Matter of Marcelino Rojas.18 In Rojas, the employer contended that his attorney interviewed U.S. applicants because he had difficulty communicating effectively in the English language. Here too, the certifying officer alleged that 20 CFR §656.20(b)(3)(i) had been violated because the attorney had interviewed a U.S. applicant for the position. BALCA initially noted:
"In labor certification cases, the employer's attorney is almost automatically the alien's pro forma attorney. The employer's attorney "represents" the alien to the extent that if the employer succeeds in its application then the alien also succeeds by receiving labor certification. It would be the rare exception to find the alien and the employer represented by different attorneys."
But BALCA, in Rojas, held that the attorney represented the employer rather than the alien in the conduct of the interviews. The employer was present at the location of the interviews to observe the applicants and to decide, after conferring with his attorney, whether to conduct follow-up interviews. Therefore, the attorney only represented the employer and 20 CFR §656.20(b)(3) was inapplicable to this case.19 Rojas, can thus best be described as an exception to the generally accepted maxim that the attorney for the employer will also be treated as the attorney for the alien.20
In a more recent decision, Chicken George,21 the attorney for the employer and the alien was the one who issued letter for the interview to one of the U.S. applicants who applied for the job. The letter was written on the letterhead of the law firm. Since the employer's attorney assented that he was the attorney for both the employer and the alien, BALCA held that 20 CFR §656.20(b)(3)(i) and (ii) had been violated. In another decision, Staffing Services, BALCA inferred that the attorney was representing the alien by virtue of the attorney's Notice of Entry of Appearance, Form G-28 that presumably indicated both the employer and the alien.22
Finally, in Matter of Scan,23 the labor certification was denied because it appeared that the applicant was to have been screened by the attorney rather than by the employer. There, the Certifying Officer concluded:
"The initial assessment of the applicant's qualifications constitutes attorney involvement and is prohibited by the Regulations. It is clearly adverse to the interests of U.S. workers for the alien's attorney to have any involvement in the recruitment process. The rebuttal provides no satisfactory assurance that the attorney did not initially assess the applicants qualifications in this case despite the fact that the employer actually interviewed the workers and made the hiring decision. We cannot say that U.S. workers were not prejudiced by the attorney's actions in this case."
Although it is unclear from the fact that the attorney claimed to only be the employer's attorney, BALCA appeared to have broadly held that the attorney violated 20 CFR §656.20(b)(3)(i) because he had engaged in the "filtering process" which is part of the personnel procedures that the employer follows when the employer hires staff personnel.
Thus, under the predecessor provision, 20 CFR §656.20(b)(3),24 with the sole exception of Rojas, BALCA has held that an attorney interfering in the recruitment process, either by interviewing or initially screening applicants, violated the regulation.25 Of course, the regulation does carve out an exception where if the attorney is the person who normally interviews job applicants outside the labor certification process, this provision will not be implicated.26
The Meaning of "Considering"
ABANDON HOPE ALL YE WHO ENTER HERE:
"Can you do addition?" the White Queen asked, "What's one and one and one and one and one and one and one and one and one and one."
Through The Looking Glass
Recently, the DOL has been struggling to interpret 20 CFR §656.10(b)(2)(i) and (ii). There is no dispute that the regulation clearly bars an attorney from participating in the interviewing of U.S. workers. More fuzzy is the prohibition against lawyers participating in the consideration of U.S. workers. Would it preclude attorneys from advising employers during the recruitment process even though the attorney makes no contact with the applicants? Does it allow attorneys to screen resumes on behalf of the employer?
These questions appeared to be answered in the affirmative when, on June 2, 2008, without warning, the DOL announced by press release that it was auditing all of the labor certifications of the law firm of Fragomen, Del Rey, Bernsen & Loewy LLP ("Fragomen") allegedly based on forms that Fragomen provided to certain clients instructing the employer to contact Fragomen if it determined that a domestic applicant appeared qualified for the position. Fragomen has publicly asserted that this was done in order to allow an attorney at the firm to discuss a U.S. worker's qualifications with the employer's representative in light of the peculiar requirements of the certification regulations.27
On June 13, 2008, DOL issued "Clarification of Scope of Consideration Rule in 20 CFR §656.10(b)(2)" ("June 13, 2008 Guidance"), which thankfully has since been rescinded. However, it is still worth noting that in the June 13, 2008 Guidance, the DOL stated that if "an employer evaluates a U.S. worker and concludes that the worker is unqualified, the employer may seek the advice of its attorney…to ensure that its reasons for rejecting the U.S. worker are lawful. (emphasis added). "By contrast, if an employer evaluates a U.S. worker and determines that the worker is minimally qualified, the attorney…may not thereafter consider the applicant's qualifications." Id.28 (emphasis added). Fortunately, the DOL realized how counterintuitive and profoundly unhelpful this guidance proved to be. It failed to explain how an employer would be able to determine that a U.S. applicant was minimally qualified under its complex regulatory structure without being able to consult with an attorney who was specialized in labor certification.29
DOL rescinded the June 13, 2008 Guidance in its latest interpretation, dated August 29, 2008, Restatement of PERM Guidance Bulletin on the Clarification of Scope of Consideration Rule in CFR §656.10(b)(2) ("August 29, 2008 Restatement").30 In the August 29, 2008 Restatement, the DOL stated that it has always expected an employer's recruitment process under a labor certification to closely resemble an employer's normal consideration process, which does not require the role of an attorney. But in a telling reversal of its original stance, DOL acknowledged, that since the DOL recruitment process imposes standards that deviate from the normal recruitment process, it "understands and appreciates the legitimate role of attorneys and agents play in the permanent labor certification process. Additionally, the Department respects the right of employers to consult with their attorney(s) or agent(s) during that process to ensure that they are complying with all applicable legal requirements."31
The following passage from the August 29, 2008 Restatement is worth noting:
While the August 29, 2008 Restatement allows attorneys to advise the employer during all phases of the recruitment, and eliminates the artificial blackout period imposed by the June 13, 2008 Guidance, it still appears to preclude the attorney from initially reviewing an applicant's qualifications, prior to the employer reviewing them, and to properly advise the employer whether the applicant meets the minimum requirements of the position. This seems to contradict DOL's own past practice when, prior to allowing an employer to conduct its own recruitment in advance of filing a labor certification,32 the DOL supervised the employer's recruitment and directed that all resumes be forwarded to the DOL's designated P.O. box address. Upon receiving the resumes, the DOL used to forward them to the employer's attorney and not directly to the employer. On the other hand, the August 29, 2008 Restatement may have some support in Matter of Scan, supra, where BALCA held that the initial assessment of the applicant's qualifications constituted attorney involvement that was prohibited by the predecessor regulation, 20 CFR §656.20(b)(3)(i). Yet, banning an attorney from making initial assessments on the resumes prevents the attorney from communicating legal advice to the employer about applicant qualifications, and otherwise contradicts the authority that the August 29, 2008 Restatement has given to attorneys to consult with an employer during the recruitment process.33
Needless to say, it is at least salutary that the attorney can advise the employer, apart from the screening of applicants before the employer does, in all aspects of the recruitment. The August 29, 2008 Restatement also allows an attorney to undertake routine clerical and ministerial tasks in organizing resumes without assessing or commenting on them, or withholding any resumes from the employer. On the other hand, 20 CFR §656.10(b)(2) is not violated if the attorney is the representative of the employer who routinely performs this function for positions for which labor certifications are not filed. While the authors have yet to come upon a BALCA decision involving such an attorney, such a situation is conceivable in a law firm where it may be an attorney who usually is also involved in the hiring of other attorneys outside the labor certification context. Or it could also involve an employer, who in the exercise of abundant caution, involves an employment lawyer in all hiring decisions. Query whether it could also involve an attorney34 representing a "job shop" that only hires foreign national workers and files labor certifications on their behalf.
What came next was positively Twilight Zone material. On September 15, 2008 in a stunning admission, the DOL submitted an "Errata Statement" to the federal court that essentially dropped its argument that "long-standing and consistent"35 BALCA case law supported its interpretation of 20 CFR §626.20 (b)(2)(i) and (ii). While we cannot know for sure why DOL took this step, the authors speculate, doubtless at their own peril, that this seeming admission against interest was a pre-emptive strike by DOL lawyers who sought to blunt the anticipated impact of Fragomen invoking Matter of Rojas. They need not have bothered since Rojasis, in fact, older than more recent cases such as Scan and Sharon Lin Lau that acknowledge, if not implicitly accept, the reality and propriety of dual representation. There was more to come. On September 17, 2008, the following cryptic statement appeared on the DOL Office of Foreign Labor Certification website:
"The Department has been presented with evidence indicating that prior to its recent audits, many immigration attorneys believed that the Department's rule regarding consideration of U.S. workers did not apply to them unless they represented not only the employer seeking the labor certification, but also the alien for whom the certification was being sought. That interpretation is incorrect, as the Department's recently issued PERM program clarifying guidance makes clear. Nevertheless, the Department will apply the requirements for the consideration rule as interpreted by its recent guidance only to labor certification applications the recruitment for which was begun after August 29, 2008, the date on which the Department's final guidance was issued. All pending audits triggered exclusively by consideration rule concerns are therefore being released and will be processed in accordance with their original filing date."36
While this latest announcement of the DOL, along with the settlement and case dismissal, surely vindicates Fragomen and also suggests that DOL justifiably feared that the court might rule against it for violating the APA with respect to the unauthorized revision of 20 CFR §656.10(b)(2), the authors find it strange that the DOL assumes that attorneys prior to August 29, 2008 thought that this regulation did not apply to those attorneys who only represented employers. The change to 20 CFR §656.10(b)(2)(i) implemented on December 28, 2004, which took effect on March 28, 2005, and which slipped the magic words "for either the employer" into the regulation without opportunity for notice and comment, codified what had been BALCA's consistent interpretation and did not create a new restriction. BALCA's default position has always been, save for outlier cases like Rojas, that dual representation is intrinsically present in labor certification.
Rather than issue such an illogical and cryptic statement, even though it vindicated Fragomen, the DOL ought to have rescinded its August 29, 2008 Restatement too as it has been wont to do with respect to the earlier June 18, 2008 Guidance. It would have been more honest for the DOL to acknowledge, as it has already done, that the recruitment procedures incorporated into the labor certification process, deviate markedly from recruitment procedures followed by employers generally, thus creating a legitimate need for an employer to consult with the attorney on the initial assessments of the resumes. Indeed, by allowing attorney involvement during this phase, it might lead an employer to actually determine that an applicant is minimally qualified under the DOL's regulations. Otherwise, an employer not knowledgeable about what constitutes a minimally qualified U.S. applicant, might disqualify such an applicant in a "real world" assessment of the resume.37
While DOL may have suffered a black eye in the press,38 the fact remains that the Fragomen audit has achieved its desired effect. The APA has been violated with impunity. The immigration bar has been shocked and chastened, put on notice that they had better be careful from here on out as to what they tell their client and when. Employers are left on their own to make a first pass at applicant resumes and all interested parties know that, lacking the financial clout and political muscle of the Fragomen law firm, an audit by DOL could be a death knell. The will to sponsor any alien, however qualified, for labor certification will be surely re-examined by all but the most intrepid employer. Fragomen may have escaped the death penalty but the road ahead remains full of terrors, both seen and unseen, for those who come next.
What a Lawyer Can or Cannot Do
A WORD TO THE WISE:
Alice: Would you tell me please, which way I ought to go from here?
Alice in Wonderland.
If, according to 20 CFR §656.10(b)(2)(i), it is contrary to the best interests of U.S. workers for a lawyer that represents either the employer or the alien to participate in interviewing or considering U.S. applicants, what's left in light of the recent flurry of DOL interpretations since the August 29, 2008 Restatement? Indeed this is not the first time that the DOL has placed curbs on lawyers. Last year, on July 17, 2007, the DOL prohibited foreign nationals from paying lawyer fees associated with the labor certification process or to reimburse the lawyer for any costs associated with this process.39 This was phase one of the DOL campaign to restrict the scope of attorney involvement in the labor certification process. First, prevent the alien from paying the lawyer in an attempt to cut down on what the lawyer can or will be motivated to do for the alien. Fast forward to the Fragomen audit scare of 2008. Here, the goal was to circumscribe what the lawyer could do for the employer in the labor certification process. These actions on the part of the DOL should be properly interpreted as two parts of a concerted campaign to make the lawyer a specatator rather than a participant, thus depriving the lawyer of any meaningful or consistent ability to shape the outcome of any labor certification submission. This is a two pronged attack on the right of counsel, first on the alien and now on the employer.
Before getting into a laundry list of do's and don'ts, the overarching note of caution is to never advise the client to pre-determine the outcome of the recruitment. It is neither legal nor ethical to structure the process to ensure that no U.S. workers will qualify for the position. Beyond that, it will conspicuously and properly fail to achieve the desired result. Labor certification attorneys should ask the following questions of their employer clients:
What a Lawyer Cannot Do
Based on the August 29, 2008 Restatement, the authors believe that the following actions taken by the employer's lawyer will jeopardize the labor certification:
It is also worth noting, as will be discussed in greater detail, infra, that the above prohibitions apply to laid off workers who are considered for the position.43
What A Lawyer Can Do
The list of prohibitions would have been much longer had the DOL not issued the August 29, 2008 Restatement. Based on current guidelines and recent interpretations issued by the DOL, lawyers assisting in the labor certification process may appropriately take the following actions:
Before we leave this section, it is worth discussing grey areas, which could lead the DOL to consider sanctioning an and law firm for unwittingly violating 20 CFR §656.10(b)(i) or (ii), the charge brought against Fragomen, even though the lawyer believes he or she has acted in good faith. Fragomen's questionnaire instructed the client to contact a Fragomen attorney should any applicant appear to be qualified for the position. This is what triggered the DOL's interest in auditing Fragomen cases.55 While such an instruction appears innocuous, and is consistent with the attorney advising the employer with respect to every phase of the labor certification process, as recently affirmed by the DOL's August 29, 2008 Restatement, one never knows when such an instruction will irk a DOL adjudicator in the future as it may be viewed as an attempt by an attorney to dissuade the employer from hiring a U.S. worker. On the other hand, as the authors have previously noted, an employer is not required to hire a qualified U.S. job applicant. What the employer is prevented from doing in such a case is filing the labor certification.56 The recent AILA Advisory on the Role of the Lawyer also suggests that an employer may modify its normal resume screening procedure. For example, the employer may appoint a Hiring Manager to screen resumes relating to a labor certification advertisement as opposed to an overworked HR Department to ensure that the screening of these applicants are consistent with the specific requirements under the DOL mandate. This is consistent with the DOL's August 29, 2008 Reinstatement that the labor certification process imposes recruitment standards that "may deviate from the employer's normal standards of evaluation." It is hoped that the DOL does not some day contradict itself and decide that such a practice deviated from the employer's normal standards and audit an employer as well as the employers attorney!
The attorney may also believe that since he or she normally assists the employer in recruiting outside the labor certification context, that they may also be directly involved in recruiting U.S. workers through filing of a labor certification application. The DOL may not agree with the attorney's interpretation of his or her involvement in the employer's recruitment activities, and may decide to audit all of the law firm's cases. Likewise, an attorney may rely on Muriel Horowitz, supra, and in good faith screen resumes, before the employer does, to ascertain whether the applicants applying for the position qualify as U.S. workers or not. The DOL may still penalize this attorney as it may suspect that some of the resumes screened belonged to U.S. workers. Additionally, we have also seen the DOL go after another law firm, Cohen and Grisby, for stating in a training that was recorded on video and made available on YouTube, "[O]ur goal is clearly not to find a qualified and interested worker."57 While the attorneys in the video may have been intending to say that the DOL program does not require an employer to hire the qualified U.S. worker, the DOL came down harshly on this firm, audited all their applications and have placed them under supervised recruitment.58
What DOL objects to, and what we should all guard against, are actions by the lawyer that taint the basic integrity of the recruitment process. Those actions which do not taint the process should not be a reason for denial, even if such practices fall within a grey area. Can we apply the harmless error concept by analogy here? In other words, can we not argue that any action by the lawyer which, while not preferable, would not so prejudice the legitimate interests of U.S. workers as to prevent or preclude their full and fair consideration? In Madeline Bloom, the 35-day deadline for a rebuttal was waived when BALCA said that the employer should not be penalized for the attorney's negligence.59 Is this not a reasonable extension of the need for common sense that BALCA articulated in Matter of Health America?60 The point being that there is or should be a difference between things that we wish a lawyer would not do and things which so predetermine the ultimate outcome as to mandate denial. PERM regulations, after all, should serve to promote fundamental fairness, not serve as a trap for the unwary. Hyper technicality, the hallmark of PERM, is not a victimless crime. There is a cost to complexity. It does not help U.S. workers if an unsuspecting employer misinterprets one of the many cryptic features of PERM and, without warning, the terrible swift sword of the CO swings down to chop off the ETA 9089 adjudicatory framework; where the regulators and the regulated can strive towards a clean system that says "yea" or "no" depending not on technical minutiae but on issues of substance that really counts. That would help all of us sleep better at night.
The key point is that, while the lawyer may be perceived to be acting improperly under the regulation without intending to violate them, DOL does not see things that way. Why? Remember first that labor certification appears as a ground of inadmissibility under INA §212(a)(5). The DOL has designed the labor certification program to fail for the employer. It is designed to keep foreign-born workers out. That is how DOL sees its mission. Any approval of a labor certification in this sense is a failure to protect U.S. workers. Involvement by lawyers is tolerated only if they can represent the interests of U.S. workers by virtue of their participation in the process. That is the perspective with which DOL has approached its task historically and they have brought that perspective to the Fragomen dragnet.
When that is how you see your mission, it is not surprising that any failure by a lawyer to abide by every sentence in every regulation cannot be dismissed or accepted as a harmless error but, rather, takes on larger and more sinister significance. The danger to the bar is that they do not even realize they are crossing the line when it happens.
Hard Times: Layoffs and Labor Certification
In the souls of the people the grapes of wrath are filling and growing heavy, growing heavy for the vintage.
John Steinbeck- The Grapes of Wrath
In the souls of the people the grapes of wrath are filling and growing heavy, growing heavy for the vintage.
John Steinbeck- The Grapes of Wrath
We live in hard times. New figures from the Labor Department paint a far bleaker portrait of economic job loss than most economists expected. Last month, 533,000 Americans, not including those who worked in agriculture, lost their jobs. This was the most severe one month report since the mid-1970's and figures for the September-October time period were revised upward by 199,000.The unemployment rate rose two-tenths of a point to 6.7 percent in November; the numbers would have been worse if discouraged workers had not simply stopped trying and went home.61 Even if an employer can survive a PERM audit sparked by layoff concerns, the sheer volume of such investigations can directly and significantly slow down the process, thereby negating the very reason why DOL created PERM in the first place. When that happens, the inherent contradictions and structural imbalances within the labor certification system that DOL has never confronted will force themselves center stage once again. Nor will the ripple effects stop there. As more employers find the PERM process less suitable to their needs, they will increasingly turn to strategic alternatives as a way to bypass labor certification itself. It would not be surprising if USCIS reacted by adopting interpretative stringencies to force employers back into the labor certification arena. A breakdown in labor certification cannot be confined but will inevitably, and with growing speed, make itself felt elsewhere, much as the sub-prime mortgage crisis has led to a credit collapse, so that the entire system will seize up. DOL and USCIS do talk to each other. Attempts to avoid the need for labor certification can only result in much closer examination of national interest waivers, outstanding researcher petitions, claims of extraordinary ability and anything else put forward by agile advocates looking for an exit from the closing ring of PERM audits.
Among the most enduring guidance a good lawyer can offer an anxious employer is that the PERM layoff regime combines strict liability with a maddening absence of definition. As important as telling the employer what the lawyer knows is telling the employer what the lawyer does not know for it is this lack of knowledge that helps the employer to be careful and avoid potential minefields for the unwary. The right questions are just as critical as the correct answers. Becoming a teacher to your client is one of the most powerful forms of assistance that the concerned lawyer can provide.
Interpreting the Lay-off Regulation62
"Confusion Now Hath Made His Masterpiece"
What does the PERM Layoff regulation tell us? 20 CFR 656.17(k)(1) deserves to be quoted in full:
The ambiguities in this regulation abound. Is the term "occupation" different from the job opportunity that is the subject of the labor certification?64 For example, if the job opportunity involves an architect with 5 years experience, does the employer have to consider all laid off workers with less than 5 years of experience as long as they are still within the same occupation, namely, architects? To err on the side of caution, always a recommended practice in the wacky world of labor certification, it is preferable that the employer be advised to consider all laid off architects even if they had less than 5 years of experience. On the other hand, the following limiting language in 20 CFR § 656.17(k)(1) is worth noting: "employer must document it has notified and considered all potentially qualified laid off (employer applicant) U.S. workers." This seems to suggest that the employer only has to notify and consider "qualified laid off" workers. Does this language allow the employer to only consider architects who would have qualified for the job opportunity, i.e. architects with five years of experience? There is yet a deeper ambiguity in this regulation. Even if the employer only considers qualified laid off architects, those with five years of experience, should it consider architects whom the employer hired with 5 or more years of experience? Or should it consider any laid off architect who acquired 5 years of experience, even if the five years was gained with the employer?
Furthermore, "a related occupation is any occupation that requires workers to perform a majority of the essential duties involved in the occupation for which certification is sought." Now this is a curious definition. What is "essential" can only be meaningfully defined in the context of a specific job for the sponsoring employer with particular business needs. Outside of this context, the very notions of relevance and essentiality lose all texture and meaning. For example, in the context of an employer's business, an architectural draftsperson may perform a majority of the duties of the architect and may qualify as a related occupation. Hence, all laid off draftspersons would also need to be notified and considered as they may also be potentially qualified for the position. Indeed, since the related occupation involves the performance of the majority of duties of the occupation subject to labor certification, it would logically follow that the laid off worker in the related occupation may be potentially qualified for the labor certification position. But this does not mean that every draftsperson is related to architect. Essentiality ought to be viewed in the context of the employer's business.
While this argument has intrinsic merit, the DOL may likely view essentiality outside the context of the employer's business by examining formulaic job descriptions of allegedly related occupations in O*Net. Thus, the cautious lawyer ought to view related occupations not set against the background of the sponsoring employer's business needs but by objectively examining whether two occupations share essential duties by examining them in O*Net.65 Even here, O*NET may not be of that much help, speaking as it does of what are normal and necessary "requirements" rather than "essential " job duties. Indeed, the very notion of an "essential" job duty belongs to a bygone industrial age when job structures, like the Maginot line, remained both rigid and impassable. O*NET's creation, by contrast, was specifically designated to gauge and promote the acquisition of talents, aptitudes, and interests that transcended occupational boundaries To speak of "essential" duties for specific job opportunities or even insular occupational groups is, in a very real sense, to deny O*NET's legitimacy and reject its most basic rationale, the need to identify transferable skill sets that make possible the seamless transition from one role to another so that employees and those who hire them can anticipate and profit from the ever-changing challenges of the global economy in the information age. Beyond that, are normalcy and essentiality the same thing? If they are, how exactly can O*NET be used to judge them, either separately or together? In the pre-PERM days, we knew that, if an employer's requirements were part of the DOT job description, that, without more, proved business necessity.66 Reliance upon PERM descriptors should provide the same level of assurance but the language of the layoff regulation may yet remain elusive and unsatisfied.
In a worsening economic climate, DOL is likely to interpret 20 CFR § 656.17(k)(1) broadly, and until there is further guidance from the DOL, prudent lawyers should best advise their clients to consider all laid off workers in the occupation.
Other Grey Areas
Then, the regulation has other elements the meaning of which are far from self-evident:
So much for the PERM regulations themselves. What does BALCA think they mean? Now that is not as easy as you might think to answer for there are no reported BALCA decisions where the recruitment was entirely conducted under the PERM regulations. En banc decisions, examine whether recruitment was sufficient to qualify for reduction in recruitment treatment that existed before PERM. There is the same temporal staleness to DOL guidance on RIR adjudications in a climate of widespread layoffs.92 We simply do not know with any degree of reliable assurance how BALCA or DOL itself will interpret the PERM layoff regulation. Partly, that is because DOL has never been sure of what it wants PERM to achieve. Is success measured by the number of denials, the amount of certifications or the volume of audits? Does DOL want to encourage employers to file or make it so burdensome that they will shrink from doing so? One measure of this uncertainty attaches itself to the question of how far the employer must go to notify laid off workers. The entire labor certification system is predicated upon the area of intended employment and that should serve to define the geographic scope of such obligation. This is how DOL has always seen it.93 That is still the most sensible view.94 Yet, there is some sliver of ambiguity created by the fact that the explicit wording of 20 CFR 656.17 (k)(1) does not contain this geographic limitation on the employer's notification obligation. Is it broader than we think? There is some BALCA authority from the halcyon RIR days that suggests it might be.95 Clearly, this is a hot topic and one hopes that DOL will address it in the not too distant future on the logical assumption that clarity normally precedes compliance.
Preparing for the Inevitable Audit
How can you as the lawyer help your client prepare for the inevitable DOL audit ? Consider some of these helpful( we hope) hints:96
Lay offs, Revocation and Supervised Recruitment
Is there a possible link in the mind eyes of a skeptical CO between layoffs and supervised recruitment? Beyond that, delving deeper into the twilight zone, can the CO take administrative notice of widespread layoffs after filing to revoke a previously approved labor certification? Taking the more extreme case first, DOL does not, in theory, have to have any specifically articulable reason to revoke an approved labor certification; indeed, 20 CFR 656.32(a) simply says that the Certifying Officer need only find that certification was not "justified." Nor is there any time limit so that, in the worst case scenario, revocation conceivably could take place after the beneficiary becomes a lawful permanent resident, or even a citizen! Fundamental fairness, common sense, finite agency resources and the well-recognized principle of finality all tell us that DOL would have to find and prove material fraud to adopt such extreme measures, or otherwise demonstrate with unchallenged clarity that the labor certification was otherwise improvidently obtained. 656.32 (a) is informed by 656.31 which requires fraud and material falsehood for denial of a labor certification; the two regulations are bookends and must be interpreted in pari materia. Neither law nor logic could countenance a result where it is easier to revoke an approved certification than to deny one in the first place. Moreover, such revocation must take place within a reasonable time so that the alien can take remedial measures. If there is no time constraint imposed by 20 CFR 656.3297(a), there certainly is the six month window before the ETA 9089 is filed mandated by 20 CFR 656.17(k)(1). Just as the sponsoring employer is bound by this window, so is the DOL. This is fundamentally different from the pre-PERM practice under Reduction in Recruitment of looking to layoffs during the expected six month period of advertisement that DOL expected as a matter of common practice in keeping with GAL 1-97. That is why BALCA allowed DOL to breach this self-imposed statute of limitations98 For a Certifying Officer to use layoffs post-certification as a rationale for revocation would be an ultra vires action in express violation of 20 CFR 656.17(k)(1) that could and should be overturned in court.
What about layoffs as a rationale for supervised recruitment? 656.21 teaches us that the CO may require such recruitment after filing if "appropriate" which is not defined nor limited by time and is presumably a decision soundly within the CO's discretion.99 For had not been robust enough to warrant RIR treatment.100 The purpose of supervised recruitment, then, was to cure a defect that precluded RIR approval. Now, under the PERM regime, remand for supervised recruitment due to post-submission layoffs would serve a very different objective. The CO would not be questioning the adequacy or propriety of the employer's recruitment in any way. There would be no flaw to correct. Rather, the recruitment could have been letter perfect when the employer acted but, months or even years later, depending upon the DOL's processing time, augmented by the increasing likelihood of an audit, the world had turned over. What was fine before is not acceptable now and the CO orders supervised recruitment as a way to adjust the facts of the case to this changed reality. What this would also show is that layoffs do not affect just one PERM regulation, or one aspect of the labor certification process, but, rather, the way in which the DOL will interpret the entire corpus of PERM rules and take a far more jaundiced view of the very propriety of any labor certification in any industry or occupation that knows hard times. Layoffs have a multiplier effect whose dynamic nature will take on increasing velocity in direct proportion to the rise and fall of the American economy.
WHAT IF I DON'T AGREE?: Review of a Denial of a Labor Certification in Federal Court101
Now, I give you fair warning, either you or your head must be off, and that in about half no time! Take your choice!
The Queen - From Alice In Wonderland
Now, I give you fair warning, either you or your head must be off, and that in about half no time! Take your choice!
The Queen - From Alice In Wonderland
What role does the lawyer play when the DOL denies, or for that matter, revokes the labor certification? The lawyer will instinctively advise the employer to appeal to the Board of Alien Labor Certification Appeals (BALCA) or seek reconsideration.102 Like a racehorse, it's in our blood. Yet, it could at times make more sense to re-file the PERM application if the grounds for appeal are hopeless.103 In the event that the employer does appeal to BALCA and it affirms the denial, the lawyer may further advise that the employer seek review in federal court. Or the lawyer may want to think of directly going to federal court.
What if the employer decides to opt out and not appeal, but still holds out the job offer to the alien? Can the alien himself or herself seek redress for the denial of the labor certification without the employer being a litigant? All of these issues will be explored in this section.
Remember that INA § 212(a)(5), the spring board for the DOL regulations in 20 CFR 656, is a ground of inadmissibility aimed against the alien. Under all other grounds of inadmissibility, the alien has the opportunity to present evidence to establish that he or she "is clearly and beyond doubt entitled to be admitted and is not inadmissible under section 212.."104 Also, interestingly, even the DOL regulation at 20 CFR § 656.2(b) cite to INA §291, which places the burden on the person who is either making a visa application or applying for admission to establish that he or she is not excludable. INA §291 thus compliments INA § 212(a)(5), by placing the alien beneficiary right at the epicenter of labor certification, a vital presence whose claim of ownership is equal in all respects to the employer who sponsors him or her.
Is it then not paradoxical that while the alien bears the burden of proof to overcome inadmissibility under INA § 212(a)(5), the DOL has cut off the alien completely from the labor certification process? Indeed, not only is the alien prohibited from paying the attorney's fee with respect to "any activity related to obtaining labor certification,"105 but he/she cannot appeal a denial or revocation of the labor certification to BALCA pursuant to 20 CFR § 656.26(a)(1) if the employer is unwilling to do so.106
Legal Basis for Appealing an Adverse Decision
20 CFR § 656.26(a)(1) specifically states, in part, "If a labor certification is denied, if a labor certification is revoked pursuant to § 656.32, or if a debarment is issued under § 656.31(f), a request for review of the denial, revocation, or debarment may (emphasis added) be made to the Board of Alien Labor Certification Appeals by the employer or debarred person or entity by making a request for such an administrative review in accordance with the procedures provided in paragraph (a) of this section."
Let's first discuss the options for the employer before analyzing the options for the alien. Can an employer seek review directly in federal court? 20 CFR § 656.2(a)(1) does not state that the specified parties, be it the "employer" or "debarred person or entity," must take an appeal to BALCA. It only says "may." If there is no compulsion to go to BALCA, can these aggrieved parties directly seek federal court review under the Administrative Procedures Act and bypass BALCA? The APA provides a cause of action for judicial review where a person has suffered a "legal wrong" or has been "adversely affected or aggrieved by" agency action.107 An aggrieved party may want go directly into federal court if he or she wished to challenge a regulation on constitutional grounds rather than waste time with BALCA, which may not have jurisdiction over such a challenge. Moreover, if the employer desires to file a new PERM application, and still seek review of the old denial, going to BALCA would preclude the filing of a new application until there was a final adverse decision.108 The same prohibition does not apply if the aggrieved employer directly goes into federal court.
We start from the premise that the APA "'embodies the basic presumption of judicial review'" available to those aggrieved by agency action.109 The foundation case for exhaustion under the APA is Darby v. Cisneros, 509 U.S. 137, 144-54, 125 L. Ed. 2d 113, 113 S. Ct. 2539 (1993) . In Darby, the Court taught us that, in actions brought under the APA, the courts lack discretion to require exhaustion unless it is "expressly required by statute or when an agency rule requires appeal before review and the administrative action is made inoperative pending that review." Id. at 154. The Court pointed out that "While federal courts may be free to apply, where appropriate, other prudential doctrines of judicial administration to limit the scope and timing of judicial review, § 10(c),110 by its very terms, has limited the availability of the doctrine of exhaustion of administrative remedies to that which the statute or rule clearly mandates."111Otherwise, without Darby, the doctrine of exhaustion applies.112 McCarthy has explained: "[w]here Congress specifically mandates, exhaustion is required….Where Congress has not clearly required exhaustion, sound judicial discretion governs."113
The following criteria in Darby need to be satisfied if an employer or other aggrieved party desires to bypass BALCA:114
Based on the four Darby criteria, it may be possible for an employer to bypass BALCA and seek review in federal court as there is no mandatory requirement in § 656.26(a), except for one hitch. Will the employer be thrown out of court for failure to exhaust available administrative remedies? The authors doubt it. 20 CFR § 656.24 (e)(3) provides that if the labor certification is denied, the Certifying Officer's final determination will "[a]dvise that failure to request review within 30 days of the date of the determination, as specified in § 656.26(a), constitute a failure to exhaust administrative remedies." Now the phrasing here is passing curious: there is no automatic failure to exhaust if you bypass BALCA; all the regulation says is that the Certifying Officer should "advise" the employer that this could be his or her fate. Is this enough under the expansive Darby test to bar the courthouse door? To answer this in the affirmative would be to turn this regulation, and indeed the exhaustion requirement itself, into a trap for unwary litigants, and that means standing Darby on its head. Darby requires more than telling the employer what might happen; there must be an iron mandate that the failure to go to BALCA will always and forever result in exhaustion as a matter of law. Short of that absolute certitude, any sliver of ambiguity must be resolved to promote the broad avenue of APA appeal. To hold otherwise is to ignore the plain teaching of the Supreme Court in Citizens To Preserve Overton Park Inc. v. Volpe, 401 US 402, 410 (1971): "In this case, there is no indication that Congress sought to prohibit judicial review and there is most certainly no "showing of 'clear and convincing evidence' of a . . . legislative intent" to restrict access to judicial review. Abbott Laboratories v. Gardner, 387 U.S. 136, 141 (1967). Brownell v. We Shung, 352 U.S. 180, 185 (1956)." Further, although it is possible that DOL may have in fact intended to bar judicial review without first resorting to BALCA, it simply failed to express it. It is the agency's regulations, not its intentions, which are controlling. For these reasons, the spirit and logic of Darby strongly suggest, if not compel, the conclusion that the language in § 656.24(d)(e)(3) does not fatally wound a litigant who directly wishes to bypass BALCA and seek review in federal court. At most, this provision may be read as offering two bites at the apple: the Certifying Officer's denial is final in the administrative sense; it becomes the decision of the Secretary of DOL, if no appeal to BALCA is timely filed. Such a final denial means that the employer is without any administrative remedy. It does not necessarily mean that the employer is without any judicial remedy. The employer gives up the opportunity to win at BALCA before going into court. Nothing more.
It could thus be argued that the purpose of 20 CFR § 656.24(e)(3) is to admonish the employer that if he or she fails to pursue the administrative appeal, there will no longer be any administrative remedies that he or she can pursue, although this does not preclude review in federal court. The analogy here might be to the warning on the I-290B Notice of Appeal that failing to act within 33 days will render the Service Center Director's decision final without any appeal to the AAO.. Moreover, as the Supreme Court noted in Darby: "The purpose of § 10(c) was to permit agencies to require an appeal to "superior agency authority" before an examiner's initial decision became final." DOL regulations, rather than holding that an LC denial is not final for judicial review purposes unless it is appealed to BALCA, say just the opposite - that a CO denial IS final if the employer doesn't appeal the decision to BALCA.115While the DOL decides who gets to ask BALCA to take a second look, it cannot decide who gets to go to court; only the Congress can say what relief the APA may provide. We would all do well to remember that "the rulemaking power granted to an administrative agency charged with the administration of a federal statute is not the power to make law. Rather, "it is the power to adopt regulations to carry into effect the will of Congress as expressed by the statute."116 Since Congress has not shut the door to the courthouse, the Secretary of Labor cannot either.
Knowing that this is uncharted territory, prudence bids us remember that finality is not exhaustion. Even if the employer does not have to go to BALCA, and the decision to deny becomes final, that same employer must confront the very real and unwelcome prospect of being thrown out of court by a skeptical and overworked judiciary. While we know that not taking an appeal to BALCA will surely have some consequences, primarily for the employer who has such an option, it is far less certain precisely what those consequences will be, when they will be felt and how they will announce themselves. Whether the employer who bypasses BALCA foregoes only administrative remedies or, in addition, sacrifices the possibility of judicial review as well remains today very much of an open question to which no confident answer can be given. 20 CFR 656.24 (e)(3) undoubtedly has a purpose but its true nature seems neither open nor obvious.
Can the Alien Seek Review of an Adverse Decision?
If the failure to exhaust verbiage in § 656.24(d)(e)(3) is read as mandating appeal, only the employer ought to be doomed in an APA action bypassing BALCA. Not the alien. It is clear that, so far as the alien is concerned, 20 CFR 656.26 does NOT require an alien to go to BALCA; indeed, the alien has no such right . In the labor certification context, the alien is not even informed of a right to appeal in contrast to the notification of such right provided to an alien investor, 8 CFR 204.6(k), or fiancé(e) , 8 CFR 123.2 (k)(4).117 Then, under Darby, an alien ought to be able to get APA standing even if the employer does not seek review of the denial with BALCA. Let's analyze some decisions precisely on this point.
In the latest decision in this area from the DC Circuit Court of Appeals, Ramirez v. Reich,118 aliens brought actions in federal court challenging the denial of their labor certifications on the ground that the employer had not sufficiently documented that the landscaping position was full time employment. The district court granted the DOL's motion to dismiss as the aliens had failed to exhaust their administrative remedies. The DC Circuit Court of Appeals recognized that under the DOL regulation, an alien was unable to file an appeal with BALCA, and thus it held that the aliens had not failed to exhaust their administrative remedies. Yet, rather paradoxically, the Court upheld the district court's finding based on employer's essentiality to the labor certification process, and here, the employer withdrew from the administrative process by failing to request review of the adverse decision.
Ramirez reasoning puzzles the authors (as well as David Pakula and Michael Piston). On the one hand, the court opined that an alien can never prevail on the merits if the employer failed to exhaust by pursuing a BALCA appeal. On the other hand, the court stated that the alien cannot be barred for failing to exercise an administrative remedy, a BALCA appeal, which is essentially unavailable without the employer's participation. Thus, while recognizing the alien's standing to sue, Ramirez still deprived the alien of that right because of the lack of the employer's participation in the administrative process. What good is a right without a remedy? The Ramirez court likened the essentiality of the employer's participation in the BALCA appeal process to the earlier steps of the process such as filing an application, recruitment and making assurances relating to the job offer.
More surprisingly, Darby was not mentioned in the decision, but perhaps the Ramirez court did not need to as it accepted the alien's standing to sue, but then only to thwart it on the ground that the employer's participation in the labor certification process was essential. Ramirez makes no sense and was wrongly decided, according to the authors, and ought not to be followed by other circuits. Perhaps, in Ramirez the outcome could have been different if the aliens had challenged the validity of the regulations. The aliens in Ramirez only challenged the DOL decision as being arbitrary and capricious. The court stated: "Appellants [the aliens] do not challenge the validity of these regulations on appeal, and so we have no occasion to examine whether the regulations' requirement that the employer be present at each stage of the process is valid." 156 F. 3d at 1278. In addition, if, as the court suggests, the aliens would not have been barred from raising constitutional issues notwithstanding the employer's failure to exhaust, then why should the aliens be barred from otherwise challenging the CO's decision on non-constitutional grounds? What if the alien raised both constitutional and non-constitutional issues? Would the court find that the alien was barred only on the non-constitutional issues? Probably, but the court's logic begins to fall apart here. The hidden golden nugget in Ramirez may turn out to be the unexpected invitation to link APA standing and constitutional challenges. Is Ramirez inviting such a nexus and would raising such a challenge strengthen the alien's APA credentials in a new and significant way? Beyond that, elevating the argument to the constitutional level would make the need for going to BALCA even less compelling since BALCA lacks the ability to render constitutional pronouncements.119
The court in Ramirez seems to be stuck on the fact that the regulations make the employer's participation necessary from start to finish. Hence, the alien should be able to challenge the validity of the regulations themselves even if the operation of these regulations, if valid, has foreclosed federal court review because of the employer's failure to pursue a BALCA appeal. Clearly, the employer is "essential" in the sense that there can be no labor certification without a bona fide job offer to support and sustain it. However, proof of this can be brought forward in a variety of different ways, such a sworn affidavit or similarly probative expressions of intent by the sponsoring employer. While the employer's degree of participation in the challenge may wax or wane, the fundamental question of standing enjoyed by the alien beneficiary under the APA does not change, but remains as a constant upon which rests the alien's guarantee that he or she will have their day in court. Neither law nor logic suggests that the alien's rights should be enlarged or negated by the actions or inaction of another who does not bear the ultimate burden of proof under INA § 291.
Fortunately, Ramirez is not the only case that the practitioner would need to rely upon to represent the alien in federal court. The precursor to Ramirez was the Seventh Circuit decision in Stenographic Machines, Inc. v. Regional Administrator for Employment and Training,120 which revolved around whether the alien had standing to sue a denial of a labor certification under § 10(a) of the APA. Both the employer and the alien were plaintiffs in Stenographic Machines. The issue in Stenographic Machines was whether the alien was within the zone of interests protected by INA § 212(a)(5),the predecessor of INA § 212(a)(14). DOL argued that this statute protected the American labor market and not foreign workers. The court in Stenographic Machines disagreed with DOL by holding that the alien was protected under INA § 212(a)(14) even though it was intended to protect American workers. INA § 212(a)(14) was a ground of exclusion and provided "the standards for determining whether given classes of aliens are to be permitted to enter and remain in the United States, and was necessarily intended at least in part for the protection of aliens who are arguably entitled to enter or remain in the United States on the basis of those standards (citation omitted)." Id. at 528.
While the employer was also a party to the action in Stenographic Machines, it laid the foundation for an alien to challenge a denial of a labor certification without the participation of the employer in the law suit.121Stenographic Machines progeny only involved the alien who brought suit against the DOL in federal court without the employer. In Gladysz v. Donovan,122 DOL denied the labor certification because the employer failed to meaningfully respond to a finding that US workers who had applied for the job were qualified for the position. At the time of this case, in 1984, 20 C.F.R. § 656.26(a) then provided:
[i]f a labor certification is denied, a request for an administrative-judicial (emphasis added) review of the denial may be made:
The district court adopted the reasoning in Stenographic Machines that the alien was within the zone of interests of INA § 212(a)(14) and thus had standing. Although Stenographic Machines had not addressed the prohibition in 20 C.F.R. § 656.26(a) prohibiting an alien from seeking "administrative-judicial" review, the court in Gladys stated that an agency through its own rulemaking power cannot override the review provisions of the APA, a Congressional Act. Furthermore, there was no legislative intent in INA § 212(a)(14) to foreclose judicial review. Thus, Gladys boldly pronounced, "To the extent that § 656.26(a) is inconsistent with APA's grant of judicial review to aliens, it is invalid." Id. at 54. Unfortunately, the alien lost on the merits. Yet, Gladys still is the key to unlocking the door of a federal court even post Ramirez. A future litigant, if blocked by Ramirez, can cite Gladys and also demonstrate through an employer's affidavit that the job offer is still open to get around the Ramirez court's insistence of the employer's essentiality to the labor certification process.
But we also need to discuss the other progeny of Stenographic Machines, which is Sieminski v. Donovan.124Here too, the alien sued the DOL sans employer in federal court after the labor certification was denied. But instead of seeking judicial review, the alien in Sieminski sought to challenge § 656.26(a) not because it deprived him of seeking judicial review but because it prevented him from seeking administrative review without the employer also seeking it. While the Sieminski court also affirmed that the alien had standing to bring the action,125 his constitutional challenge to invalidate the regulation on the ground that it prevented him from seeking administrative review was turned down. Specifically, his equal protection challenge was viewed under the rational rather than strict scrutiny test. The Sieminski court thus held that § 656.26(a) was not wholly irrational. "To require an alien's employer to join in seeking administrative review is a rational way for Secretary [sic] to make certain the alien's job will still be available to him if he prevails, thus assuring a live controversy." Id. at 793.
Gladys and Sieminski teach us that it is preferable for an alien to get into federal court to seek judicial review rather than fight for administrative review of an adverse decision on a labor certification. Sieminski seems to hold that the DOL can constitutionally deprive an alien of administrative review, and Gladysz holds that the DOL cannot go one step further by depriving an alien of judicial review. These two cases are interesting precursors to Ramirez. One holding of Ramirez seems to evolve from an idea advanced in Sieminski that the employer's failure to join in an administrative appeal constitutes non-compliance with the regulations, effectively precluding the alien from seeking judicial review. Then there is the other holding of Ramirez that seems to spring from Gladysz that the DOL cannot by regulations deprive the alien of the right to judicial review. The distinction between Sieminski and Gladysz teaches that an agency may be able to regulate the finality of its own decisions, but does not have the power to insulate itself from judicial review. It may seem that these powers are the same at times, such as when the employer's failure to pursue administrative remedies ultimately has the effect of barring the alien from seeking judicial review, as in Sieminski and Ramirez.
Further Arguments to Bolster the Alien's Ability To Seek Review
The authors urge future litigants to be strong and of good courage . While the aliens in Sieminski and Ramirez may have lost, employee litigants can continue to demonstrate that their employers have not terminated the job offers. It is not clear from these two decisions whether the aliens presented credible evidence to document the employer's interest in continuing to offer the job. Moreover, a key argument is to assert that ultimately the burden of proof under INA § 291 is on the alien to establish that he or she is not inadmissible under INA § 212(a)(5). 20 CFR § 656.26(a) thus conflicts with the INA's admissibility provision placing the burden on the alien, by making it impossible for the alien to sustain his or her burden without the employer's participation. Even if the plaintiff in Sieminski lost on the constitutional argument, namely that 20 CFR § 656.26(a)'s prohibition against an alien appealing to BALCA did not violate his due process rights, future plaintiffs can still rely on Ramirez in making other types of constitutional arguments in the context of due process or equal protection violations.
Come to think of it, just how "essential" is the employer anyway in view of the whole notion of adjustment of status portability, brought to us by Section 106 (c) of the American Competitiveness in the 21st Century Act of 2000 (AC21),126now codified as INA Section 204(j)? Is the employer still "essential" once the adjustment of status has been on file for 180 days? If the alien owns the adjustment of status and the underlying labor certification at that point, if the original sponsoring employer fades out of the picture, perhaps a recalibration of "essentiality" is in order. How could an employer remain "essential" when a written notice of I-140 withdrawal from this same employer has absolutely no effect after the magic 180 day mark?127Since Ramirez was decided before AC 21, its understanding of the employer's role in labor certification must be revisited in light of what came after. What if DOL revokes an approved labor certification128after the alien has ported to a new employer under INA 204(j)? Notice of the proposed revocation does not go to the new guy who is most interested and the alien never even hears about it! Only the original employer who has nothing to do with the adjustment any longer has a chance to submit rebuttal evidence.129Thank God for the APA for it allows the alien, the one party most directly affected, to challenge such revocation in federal court. At this point, Ramirez is flat wrong as the employer's participation is no longer necessary.
Moreover, since Ramirez, Congress has enacted other provisions that reinforce the alien's ownership interest in the labor certification. Under INA § 245(i), which sunset on April 30, 2001, an alien can "grandfather" for purposes of ultimately adjusting status in the US through a labor certification filed on or before the sunset date. § 245(i) ought to be read from an alien's point of view; so even if the employer who filed the labor certification has lost interest or withdrawn from the process, the alien is still "grandfathered" under the provision.130Also worth noting was another AC 21 provision, Section 106(a), which also allows an alien to use the labor certification to remain in H-1B status. Thus, § 106(a) of AC21 allows an alien in H-1B status to continue to extend the status beyond the six year limitation based on a labor certification that was filed 365 days prior to the sixth year on the H-1B visa status. The § 106(a) benefit under AC21 continues to accrue even if the alien has changed employers and is basing the extension on a labor certification filed by a previous employer.131
And, finally, if the alien seeks review of the denied labor certification in federal court, would the DOL still expect the employer to bear the fees of the litigation pursuant to 20 CFR § 656.12(b)? It can be argued that 20 CFR § 656.12(b) should be limited to activity related to obtaining labor certification and not while appealing a denial to federal court where the employer has dropped out as a plaintiff. If that is not the case, the DOL would be obliterating the alien's ability to seek review in federal court assuming that the employer still had a job offer open for the alien. 20 CFR § 656.12(b) prohibition against the alien from paying the attorney's fee ought to also be challenged by the alien who has standing to seek review of the denied labor certification in federal court.132 Based on the above, it is both necessary and proper to reject any interpretation of § 656.12(b) that conflicts with the alien's right under the APA from seeking judicial review in federal court, a right that Congress has not taken away. The authors do not question the right of DOL to implement regulations governing the labor certification process for such authority was previously upheld in Production Tool, supra, and recently ratified by Durable Manufacturing Co, supra. Rather, we note only that Congress has not and DOL cannot condition or restrict the full and complete exercise of the alien's APA rights in any way. That being the case, the courts should be properly reluctant to impose by judicial fiat that which is not already found in the law with unmistakable clarity.133 The silence of those most directly responsible for the creation and administration of the labor certification process suggests, indeed commands, that the alien's APA rights not only be respected but nurtured and encouraged.
Dual Representation within the Immigration Bar.
OH YE OF LITTLE FAITH:
"Alice laughed: "There's no use trying to believe impossible things."
Alice in Wonderland.
Although Fragomen in its law suit against the DOL took the position that it was solely representing employers, even while the foreign national workers were not being represented by separate lawyers,134 dual representation is generally the favored approach within the immigration bar. While it may be ideal for each co-client to be represented by a separate attorney, it would be impractical and unworkable in immigration practice as both clients generally share a common objective. In the family context, immigration attorneys represent the husband and the wife, both of whom work together so that the spouse who is the foreign national can become a permanent resident of the United States. Similarly, both employer and foreign national employee share a common objective, i.e. assisting the foreign national employee in obtaining permanent residency so he or she can assume full-time permanent employment with the employer. The immigration attorney generally forms a lawyer-client relationship with both the employer and the employee as joint action is required to attain the goal of permanent residency or some other visa status. The lawyer is expected to remain loyal to both clients. So long as the objectives of the co-clients are aligned, it is ethical for a lawyer to represent multiple clients provided that he or she obtains the informed consent from the co-clients regarding the limitations of dual representation.135On the other hand, dual representation implicates the lawyer's fiduciary duty of loyalty toward the client. It also implicates the lawyer's duty to keep all information confidential. In dual representation, unless previously agreed upon, there can be no secrets between the two clients. If a conflict develops, the lawyer could attempt to resolve the conflict, and if it cannot be resolved, he or she is expected to withdraw from the representation of both clients.
Some attorneys attempt to avoid dual representation by assuming one of the parties, frequently the employer, to be the client, by what has come to be known in the immigration bar as the "Simple Solution," although the authors will refer to it as sole representation. Representing one party, and not the other, may take quite a feat since a lawyer-client relationship can be implicated, regardless of the attorney's intent, so long as a party to the action believes they are being represented.136 In the opinion of the authors, it would be difficult for a lawyer who takes the position that he or she is only representing the employer to avoid being considered the lawyer for the unrepresented foreign national during the labor certification process. Throughout the process, the foreign national will also be expecting to be advised about being able to qualify for the position described in the labor certification, as well as being advised of qualifying subsequently under an employment-based immigrant visa category and then being able to either adjust status in the U.S. or proceeding overseas for consular processing. Again, it would be ideal if both the employer and the foreign national had their own lawyers, but this is generally not the case.
One of the authors has proposed a third approach, called the "Golden Mean."137 While acknowledging dual representation, the Golden Mean assists the lawyer in recognizing conflicts in advance of the representation. A careful evaluation of potential conflicts enables the lawyer to limit representation or waive conflicts in advance. Limiting the representation may minimize the potential for conflict. If a conflict does arise, the fact that the lawyer has contemplated the conflict in advance may ethically enable him or her to continue to represent both, or one of the clients, rather than completely withdraw from the representation.138
Sole vs. Dual Representation In Labor Certification Practice
"When you come to a fork in the road, take it!"
"When you come to a fork in the road, take it!"
As noted previously in this article, BALCA has implicitly recognized dual representation insofar as the attorney for the employer is also considered the attorney for the alien, which we have seen in decisions such as Rojas, Sharon Lim Lau, and Scan. Based on its September 17, 2008 announcement, as well as the August 29, 2008 Restatement, it not possible for the attorney to take the position that because he or she is only the employer's attorney, 20 CFR §656.10(b)(2) will not apply to such an attorney, and thus he or she can screen resumes or even interview candidates on behalf of the employer. The DOL is likely to hold in the context of 20 CFR §656.10(b)(2), notwithstanding that an attorney may disagree with the insertion of the magic words in 2005 as being in violation of the APA - "for either the employer" - that this employer is also representing the alien.139Yet, this section will likely not be implicated if the attorney represents the employer in hiring employees outside the labor certification context, a relatively unlikely scenario.
Yet, the joint representation is fraught with conflicts in labor certification practice, and it is important for the attorney to advise the co-clients about the various conflicts so as to manage expectations. One commentator has wryly observed: "Joint representation of the employer and employee in a search for a U.S. worker to fill the foreign national's position suggests, if not a conflict of interest, a contortion of interest, although by now the immigration bar is used to the contortions undertaken by all parties in order to appropriately manage the labor certification process."140
A conflict typically arises when the objectives of the employer and the foreign national worker are no longer aligned. This may occur when an employee informs the attorney that he or she wishes to leave when he or she can exercise portability under INA § 204(j) without first informing the employer. The attorney representing both clients, however, must first try to resolve the conflict before withdrawing from the representation. Then there may also be situations which do not involve an actual conflict, but could still lead to the perception of a conflict in the mind of one of the co-clients. For example, the employer may have conducted a good faith test of the labor market and encountered a U.S. job applicant who is minimally qualified for the position. The attorney who is representing both the employer and the foreign national worker must advise the employer that the labor certification cannot be filed any longer. The alien may press the attorney to nevertheless find some way of advising the employer that the U.S. applicant is not qualified. Let's suppose this U.S. worker applicant did not possess a computer skill that the position required, but the attorney, after consultation with the employer, has determined that the applicant can learn it through on the job training during a reasonable period of time.141While there may still be an aggressive, albeit legal basis, to disqualify the U.S. applicant on the ground that the training may be too lengthy and thus an unreasonable period, the lawyer in good faith believes that adopting a conservative approach on behalf of the employer would be in the employer's best interests.142On the other hand, the foreign national worker feels let down that the attorney is not taking a more aggressive stance on his or her behalf. To further complicate matters, the employer may not want the attorney to share information about impending layoffs in the company to the foreign national worker, which may be another reason why the employer may not want to repeat the labor certification process that previously failed on his or her behalf.143
The Golden Mean approach might be able to alleviate these types of conflicts. It encourages the attorney to predict conflicts at the outset of the representation. A lawyer can either limit the representation of one of the parties or obtain a waiver of the conflict in advance. Limiting the representation may minimize the potential for conflict. Under the Golden Mean approach, a lawyer who more frequently represents the employer can also advise the foreign national worker at the outset of the representation that certain confidential information pertaining to the employer client can be withheld from him or her. If a conflict does indeed arise, the fact that the lawyer contemplated the conflict in advance, such as the inability of the employer to file the labor certification on the ground that a qualified U.S. worker applied and is available for the position, would allow the attorney to avoid the conflict or even the perception of a conflict. Moreover, the lawyer can also make clear to the co-clients that the job description will reflect the employer's true requirements, and that the lawyer will be free to independently advise the employer, without undue pressure or interference from the foreign national worker, who is also the co-client, regarding the contents of the job duties and requirements.144The attorney will continue to advise the employer despite its inability to proceed to file the labor certification. If the employer is a longstanding client of the attorney, he or she can continue to represent the employer on other labor certifications for related positions, provided the attorney was able to limit the representation of this foreign national worker up until the point that the labor certification could proceed. Conversely, predicting this conflict in advance will enable the attorney to also advise the foreign national about alternative options.145Not every conflict, however, is consentable. New York's Code of Professional Responsibility, DR 5-105 (c), for example, requires a fictional "disinterested lawyer" to believe that the attorney can still continue the representation in the event of a conflict. Thus, each time there is a conflict, the immigration attorney needs to put on the hat of the "disinterested lawyer," a hypothetical lawyer who has no financial interest or interest in the outcome of the case, to figure out whether the attorney's representation will be so compromised that it will be rendered ineffective or prejudicial to the client or clients.
Dual Representation in Federal Courts
In two federal district court cases, discussed here, the courts have not completely embraced the dual representation model in immigration practice. In In re De Mayolo,146 an immigration attorney attempted to assert the attorney-client privilege with respect to communications with the employer who had indicated an interest in filing labor certifications on behalf of undocumented aliens who had retained her services. No labor certifications had yet been filed. The court declined to accept the attorney's argument that since she was in a dual representation situation, she could assert the privilege with respect to the employer, by holding:
"In the typical labor-certification representation, the employer and alien are acting lawfully. For example, an employer in the United States seeks to bring an alien into the country on a valid work visa or adjust the status of an alien who is already in the country lawfully. In such cases, the interests of the employer and the alien are aligned, and thus the duty of the lawyer with respect to each is the same: namely, to help the alien obtain permission to work in this country legally.
The court in De Mayolo thus held that the attorney could not have been representing the employer as the employer did not seek to become the attorney's client. Moreover, the court also rejected the attorney's assertion that dual representation was the norm within the immigration bar with respect to family and work-related applications.148 Instead, it highlighted the ethical tensions that could arise when an attorney represented an employer who was planning to file a labor certification on behalf of an undocumented worker. On the other hand, the court's rejection of the dual representation theory, or rather, its failure to consider it, was probably in light of the fact that a claim to the "attorney-client privilege is generally strictly construed because it inhibits the search for the truth."149(citation omitted) Thus, De Mayolo is limited to its facts in the context of a narrow construction of the attorney-client relationship so as to allow the release of information through a grand jury subpoena that would otherwise have been withheld through the invocation of the attorney-client privilege.
This decision, however, raises more questions than settles them, and appears to be contrary to the spirit of §245(i) of the Immigration and Nationality Act, which allows certain aliens who are out of status to ultimately adjust their status in the U.S., if they are beneficiaries of immigrant visa petitions or labor certifications filed on or before April 30, 2001. Moreover, it is inconceivable that dual representation is impermissible whenever an alien is unauthorized to work for an employer. Under the Golden Mean, an attorney may still be able to represent both clients by apprising them of the conflicts, including the inability to continue working, and how they would be handled upon their occurrence. Indeed, the court in De Mayolo observed that there was no evidence that the attorney apprised both the employer and foreign national clients "of the nature and consequences of dual representation or obtained a waiver of any potential conflicts of interest"150Finally, 20 CFR §656.12(6), the provision prohibiting the payment of fees by the alien, mandates that the attorney be considered to be representing the employer if he/she is assisting in the preparation and filing of the labor certification.151
It would be more convenient, of course, for the attorney to solely represent the employer in the labor certification, but it is fraught with problems as the foreign national worker would obviously have different expectations, and when aggrieved, may sue the attorney. This is what happened in DerKevorkian v. Lionbridge Technologies Inc.152 where the plaintiff sued the employer for inter alia breach of fiduciary duty and the attorney for malpractice. In this case, the plaintiff's employer retained the services of an attorney and her firm to handle plaintiff's green card application. It was not possible to start the process until plaintiffs "work visa" (presumably an H-1B visa) was amended to reflect her new position. However, plaintiff's employer was not willing to pay the higher prevailing wage as determined by the State Workforce Agency. The plaintiff refused to be demoted from a translation manager to translator. The employer, furthermore, refused to "tweak" the job description of translation manager so that it would fall within the entry level 1 wage rather than the higher level 2 wage.. The district court granted the attorney's summary motion to dismiss on the ground that there was no attorney-client relationship. The court accepted the attorney's deposition testimony stating that she was not the plaintiff's lawyer until she was asked by the employer to represent the plaintiff in connection with "green card" processing, and only once a decision had been made to apply for a green card.153 Until that event, when the attorney would have represented both the employer and the plaintiff, her only client was the employer.154 The Tenth Circuit sidestepped the issue of whether there was an attorney-client relationship with the plaintiff employee or not. Instead, the Tenth Circuit held that the statute of limitations for the plaintiff to initiate a malpractice claim had expired by the time that the plaintiff initiated the action. Interestingly, regarding the plaintiffs claim against the employer, the Tenth Circuit upheld the fiduciary relationship between the employer and the plaintiff by virtue of the fact that Lionbridge had accepted the plaintiff into its permanent residency program. On the other hand, the Tenth Circuit also found that the plaintiff ought to have mitigated damages by agreeing to take the lower position of translator and remanded for a new trial.
While DerKevorkian v. Lionbridge ultimately sidestepped whether the attorney was representing the employer as well as the plaintiff employee, it teaches that an employer can control the labor certification process. Here, if the wage for the existing position of translation manager was too high, it was well within the discretion of the employer to force the employee to accept a lower position if she desired to be sponsored for permanent reisdence. In sum, DerKervokian v. Lionbridge and De Mayolo provide less than clear guidance regarding the ability of the lawyer to solely represent the employer or the foreign national employee, their facts are distinguishable since the immigration attorneys were involved only in preparatory work as opposed to full fledged representation in the filing of a labor certification application. And in De Mayolot
Conclusion and Policy Recommendations
BEFORE WE GO:
Eaglet: "Speak English! I don't know the meaning of half those long words, and I don't believe you do either!"
Alice in Wonderland
Eaglet: "Speak English! I don't know the meaning of half those long words, and I don't believe you do either!"
Alice in Wonderland
Struggling to deal with an ever-growing backlog, the DOL placed its hopes on PERM for the survival of the labor certification system. It will not be enough. PERM does nothing to resolve the internal contradictions that have plagued the labor certification system since 1965; until these internal inconsistencies are resolved, no procedural reform can achieve the desired effect. Whether PERM is a good or bad idea is not the issue. The issue is rather the extent to which PERM contradicts what Congress had in mind when it changed labor certification in 1965 to the scheme in place today. The ethical knot that is tied ever tighter around every lawyer cannot be cut unless and until Congress reclaims control over labor certification and restores proper balance by eliminating the system of individualized recruitment, which Congress never had in mind when it changed the law over 40 years ago. The real problem with PERM is not only that it goes beyond what Congress thought it was doing in 1965, but that it views enforcement as a barrier against immigration rather than as a control mechanism within which intelligent and enhanced immigration can occur. U.S. workers are not helped, U.S. employers and foreign national employees are frustrated, and a confused public is not told, and therefore does not realize, why the expansion of immigration, rather than its reduction, is something that they and their families should view in a positive light. Ethical reform can only flow from adoption of a job registry-like approach based on reliable occupational statistics sent by the states to Washington, D.C. that allows the U.S. government to match a willing employer with eager workers while monitoring the courtship to make sure that both parties play by the rules.
In 1965, even while the 89th Congress was considering what to do about labor certification, Andrew Biemiller, the AFL-CIO Legislative Director, called for the "proposed establishment and up-to-date maintenance of a list of occupations and professions in which the skills, talents, and technical competence are most needed in the United States and for which a continuing need is anticipated."155 Mr. Biemiller felt that such a list of occupational and professional shortages, the same kind of information that President Bush thinks is important today, should be compiled by the Attorney General after consultation with the Secretaries of Labor, State, and Defense. The DOL proudly proclaims at every turn that its mission is to protect American workers. They should. Having said that, one wonders if PERM, and the philosophy that is behind it, is the best way to help U.S. workers. Is it possible to help workers without helping the employers who hire them? The real problem with PERM is not what lawyers do or when they do it, but, rather, something far deeper. The ethical tensions that have rightly occupied both DOL and the immigration bar cannot be divorced from the system of individualized recruitment that DOL has created out of whole cloth completely without the legal cover of congressional sanction. THAT is why all parties to the labor certification process are forced into compromises that none of them prefer and all of them seek to avoid. Lawyers would not have to walk a tightrope if Congress realigned the labor certification system away from individualized recruitment grounded on proof of something that does not exist and towards a labor market system that rested upon real time data with regional variations and periodic updates.
For those who are not sure where or how to begin, the authors would offer the following observation:
The focus of PERM as administered by the DOL is all wrong. It creates bright-line distinctions that can be used to punish past transgressions. The DOL's mindset is insular, that of a "fortress America" that looks only to preserve current employment rather than, as it should, being interested in the creation of new jobs and the mining of rich, but untapped, veins of future economic opportunity. If we accept the premise that U.S. workers are best helped by a rising economy that strives to improve our collective living standard, then whether or not an employer can recruit a U.S. worker for a particular job is irrelevant. What counts is whether that employer can demonstrate how the certification of the job opportunity filed on behalf of a pre-designated alien beneficiary makes economic sense. Does it create more jobs for U.S. workers both now and in the days to come? Does it enable the employer to hire more people by becoming more profitable? These are the questions that any system of labor market control must ask and answer. The question is not one of lax versus close enforcement but, rather, whether and how such enforcement serves a larger national purpose. Enforcement should be an aide to policy, not a substitute for it. There is no reason to accept the false dichotomy between tough DOL programmatic safeguards and more labor certification approvals. The two can and must co-exist.156
End Notes1AILA/DOL Liaison Meeting Minutes (10-27-08) published on AILA Infonet Doc. No. 08111262 posted on Nov. 12, 2008):
"DOL held a retreat recently for its senior executives to discuss implications of the economy, including downsizing in financial companies and other businesses. In light of the current state of the economy and financial difficulties facing companies, DOL will be focusing its attention on companies in certain industries that are negatively impacted by the economic downturn, including those hit by the "domino effect." DOL will review all reports available to them, including WARN notices, reports in the media, trade notices, etc. DOL data created by other DOL entities is also available to the Office of Foreign Labor Certification (OFLC). If DOL finds that a company that is filing PERM applications has been laying off employees or downsizing, DOL will look at U.S. worker availability, especially if the position is for a "roving" employee who is not locally based. These cases will be reviewed with extra scrutiny. DOL may require supervised recruitment as a result. DOL urged employers to exercise diligence with regard to the recruitment report and to demonstrate clearly good faith in its recruitment efforts. DOL must document that a decision to certify a PERM application is justifiable, especially if the company has had layoffs in the occupation or generally. DOL will also look at the existence of industry layoffs, which can affect U.S. worker availability generally, in scrutinizing whether recruitment reports are credible. Practice Tip: DOL is not free to share all of the unemployment and lay-off data that comes to its attention. However, it may be useful to ask the SWA about industry statistics before starting PERM cases in particular sectors. This can help the practitioner gauge the level of DOL scrutiny to be expected on filing."
2Simply stated, before 1965, the Secretary of Labor had to identify and designate those occupational categories with a surplus of U.S. workers. There was no need for the employer to do or file anything. After 1965, the Secretary no longer had to be proactive. While the employer now had the burden of applying for the benefit, there was no indication that Congress ever intended for the employer to discharge this burden through a pattern of individualized advertisement and recruitment designed to prove that able, willing, qualified, and available job applicants did not exist. In perhaps the most perceptive article ever written on labor certification, Harish Singhal explained from the Secretary's viewpoint, therefore, all that the new procedure achieved was to relieve him from the burden of having to act on his own initiative. The two burdens, the burden to apply for the labor certificate and the burden to determine whether the condition specified in section 212(a)(5)(A) have been met, are separate and independent. (See Harish Singhal, Labor Certification under Revised Regulations, 51. S. Cal. L. Rev. 823, 827 1987).
6See 20 CFR §656.17(h). The notion of what is unduly restrictive, depending as it does upon current technology and present commercial realities enshrined in the DOL's O*Net system www.onetonline.org, does not contemplate or tolerate the notion of change and handicaps American companies from utilizing the talent of their foreign-born workers in a way that will anticipate and profit from such change. Contrary to what DOL would have us believe, the focus of any labor market control system should not be to penalize past mistakes or preserve present standards but to prepare for the challenges of the future in a manner that benefits foreign-born workers, their employers, and the American worker standing next to them who will share in the bounty of such advance planning.
7See Gary Endelman, Labor Certification from 1952 to PERM: Parts 1 and II, Interpreter Releases, October 4, 2005, (Part 1), 81 Interpreter Releases 1401 (Oct. 11, 2004) (Part II); see also Stuart Anderson, Certifiable: The Department of Labor's Approach to Labor Certification, NFAP Policy Brief, July 2008, National Foundation for American Policy, available at www.nfap.com. But in Production Tool Corporation v. ETA, 688 F.2d 1161 (7th Cir. 1982), the Seventh Circuit Court of Appeals upheld the validity of the regulations requiring the employer to advertise the position, 20 CFR § 656.21, Still, in Production Tool Corporation, the court held that "labor certification must be granted under § 212(a)(14) unless the Secretary affirmatively determines that able, qualified, and willing United States workers are available or that employment of the alien will have an adverse effect." Id., at 1169. That court also held, however, that the employer has a "burden of production." Id., at 1170. The employer must document its recruitment efforts to enable the Secretary to make an informed decision on the basis of reliable evidence. Id., at 1170 (emphasis added). Production Tool Corporation can fairly be read to stand for the proposition that the employer only has to go forward and produce a record of advertisement and recruitment but the employer does not have the burden of showing the unavailability of able, qualified, willing and available US workers. This burden remains with the Secretary of Labor. There are two ways to interpret this decision. One understanding concentrates on the fact that the court sustained the DOL regulation as reasonable and necessary, thus strengthening it against future challenge. However, another, less comforting view, is equally plausible, one which emphasizes that the Secretary of Labor, not the employer, must prove the absence of qualified, willing, able and available US workers. Who knows where that burden of proof will lead in the future? The authors stumbled upon a very recent decision, Durable Manufacturing Company v. DOL, 2008 WL 4785964, 2008 U.S. Dist. LEXIS 89885 ( N.D. Ill. 2008), where a federal district court in Illinois held - in a challenge to the 180 day time limit to the validity of a labor certification - that the DOL had inherent authority to promulgate regulations under INA § 212(a)(5). While the court in Durable Manufacturing did not opine on who had the ultimate burden of proof in the labor market test, it cited Production Tool for the proposition that the DOL had broad authority to interpret INA § 212(a)(5).
9Statement of Senator Edward Kennedy, Congressional Record, September 17, 1965, as cited in Gary Endelman, "Labor Certification From 1952 to PERM: Part I," 81 Interpreter Releases 1359, (October 4, 2004), supra, note 6.
10Even if the employer hires this minimally qualified worker, and files the labor certification on behalf of the foreign worker, the employer will by found to be in violation as a result of "diversion." BALCA has held that a U.S. applicant cannot be diverted to another position, even a more senior position] Engineering Technology, Inc.,89-INA-10 (BALCA 1990), Sam's Exxon, 91-INA-362 (BALCA 1992). BALCA has found "diversion" even when the U.S. worker was hired for the same position as the foreign national worker where the employer was unable to establish multiple openings. Aloha Airlines, 91-INA-181 (BALCA 1992). It is not clear whether diversion would apply, although it should not, when the U.S. worker applicant does not meet the position's minimum requirements but fills the need for a different position with the same employer. The vitality of the labor certification system, now on life support, would benefit enormously from an infusion of common sense if employers, and lawyers, were rewarded, not penalized, by hiring US workers.
[I]n some situations, the Certifying Officers have reported that some employers have utilized unusual interviewing consideration procedures for job opportunities involving job offers to aliens. For example, the attorney for the employer or alien or some nonpersonnel official would conduct the interview and participate in the consideration of U.S. workers applying for the job.45 Fed. Reg. 4920 (Jan. 22, 1980).
1520 CFR §656.10(b)(1). The provision also states that "[w]henever…any notice or other document is required to be sent to the employer, the document will be sent to the attorney or agent who has been authorized to represent the employer." Id. While the authors are obviously and justifiably dismayed, the DOL has also allowed non-attorney agents to file labor certification on behalf of the employee and the alien. When two commentators objected to allowing representation by agents prior to the interpretation of the PERM regulations, the preamble to the regulation states: "Amending the regulations at 20 CFR 656.10(b) as proposed by the commenters would be a major departure from our longstanding practice allowing representation by attorneys and agents, and may have serious consequences for those individuals who are not allowed to represent employers and/or aliens in the capacity of an agent. We believe it would be prudent before making such a major change in our longstanding practice and procedures to issue another proposed rule and consider the comments we would receive in the proposal." See 69 Fed. Reg. 773336 (Dec. 28, 2004).
16These four words were silently slipped under cover of darkness into the rule that created the new PERM system, which required employers to electronically file labor certification applications and attest to the truthfulness of their good faith requirement and other conditions. 69 Fed. Reg. 77,326, 77, 336 (Dec. 27, 2004). Although the DOL inserted these words without prior notice and comment, it is beyond the scope of our article to discuss whether the DOL violated the rulemaking section, 5 USC §553, of the Administrative Procedure Act (APA).
17See Sharon Lim Lau, 90-INA-103 (BALCA 1992). It is highly instructive to compare this holding with a different and more commendable result reached by BALCA in In re Le Petit Prince, Inc., 91-INA -354 (BALCA 1993), which reversed a denial of labor certification on the grounds that the attorney did not interview or consider any U.S. job applicants.
19In Physicians Incorporated, 87-INA-716 (BALCA 1988), the employer contracted with a search firm to interview candidates for the position of physician for a medical practice. Like in Rojas, BALCA agreed with the employer that the search firm was an agent of the employer and not the alien, and thus there was no violation of 20 CFR §656.20(b)(3).
20See E.g. K&S Sportswear, 91-INA-52 (BALCA 1992) (employer's attorney's involvement in contacting U.S. applicants during bookeeper's absence violated regulations), Techknits, Inc.92-INA-0001 (BALCA 1993) (employer's attorney violated regulations when attorney sent letters to prospective U.S. job applicants in order to expedite recruitment and claimed that he was only "a contact person"). Clearly, BALCA fears that any overt involvement by the lawyer at any stage of recruitment would fatally compromise the integrity of the process and exercise a chilling effect. See, e.g., Taam Shabbos, 90-INA-97 (BALCA 1991)( exercise of authority by employer's agent over contact and consideration of US job applicants violated 20 CFR §656.20(b)(3)(ii) when such involvement was not the norm in non-labor certification recruitment).
21See 2003 BALCA LEXIS 72. The attorney in Rian Cleaners, 96-INA-00012 (BALCA 1997) made the same mistake of sending out an interview letter to job applicants. Don't do it! However, by word of caution against the avenging angels of overzealous enforcement, it would be prudent and accurate to remember that the "chill" to which BALCA has traditionally taken exception is not so much guidance provided by the lawyer to the employer but something far more sinister, namely direct contact with the U.S. job applicant. That being said, there may still be ample running room for attorney involvement that stops short of such frontal impact. We know, for example, that an attorney cannot testify as a witness for his or her client and sign a report of recruitment results. See Matter of Modular Container, 89-INA-228 (BALCA July 1991). However, the attorney can submit precisely such a report that is countersigned by the employer. See Matter of Bimbo Bakery, 94-INA-436/437 (BALCA July 1995), a name simply too delicious to make up!. The key is to engage in honest exploration without a predetermined outcome. That is the proper role for the diligent yet ethical lawyer.
25A classic example of what not to do came in Matter of Hair, 97-INA-301 (BALCA 1998) where the employer's rebuttal perhaps inadvertently disclosed that a call to the job applicant came from the office of the employer's attorney. BALCA assumed that it was the lawyer who had made the call. Note that BALCA assumed that the lawyer for the employer also represented the alien for labor certification purposes, although no representation to that effect was made. It is also worth noting, that at the time the application was filed, the regulation only barred attorney involvement if the attorney was representing the interests of the alien.
26In Alsuna's Caribbean American Café, 96-INA-0268 (BALCA 1999), BALCA found unconvincing the attorney's claim that he was also retained by the employer "to perform legal and non-legal services…which include…employee recruitment." BALCA held that the employer's explanation was printed on the stationery of the attorney and that the ETA 750, Part A and B forms were signed by the attorney and the alien. BALCA also referred to the attorney's Notice of Entry of Appearance, Form G-28, which acknowledged that the attorney was representing both parties.
27The DOL's action against Fragomen was roundly criticized from several quarters. Upon the issuance of the June 2, 2008 press release, the American Immigration Lawyers Association (AILA) wrote to the DOL Secretary: "Contrary to the implication in the [the Department's announcements], attorneys are permitted to do more than simply provide general information on the meaning of 'qualified.' An intrinsic part of the right to counsel is the right to receive advice on the application of the law to the specific facts. DOL cannot change this right to counsel, ingrained through decades of practice in the presence of the same regulatory language visa press release." This letter is available on AILA Infonet at Doc. No.08060430 . See also Angelo A. Paparelli & Ted J. Chiappari, U.S. Labor Department to Immigration Lawyers: You're All Just Potted Plants, NEW YORK LAW JOURNAL, June 23, 2008, available at http://www.entertheusa.com/publications/0807_article_pottedplants.pdf; Comment, DOL Puts Foot in Mouth, IMMIGRATION DAILY, June 5, 2008, available at http://www.ilw.com/immigdaily/digest/2008,0605.shtm#comment. Also, regarding Fragomen's justifications for the use of these forms, see the pleadings in Fragomen's law suit against the DOL, infra, note 27.
28On August 8, 2008, Fragomen sued the DOL in federal district court in Washington, DC asking for a declaratory judgment and moving for a preliminary injunction that would prevent the DOL from enforcing its new interpretation of 20 CFR §656.20(b)(2), and requesting the cancelling of the audit of Fragomen's cases. Fragomen's pleadings in this matter, Fragomen v. Chao (Cir. No. 08-1387), are available on AILA Infonet at Doc. No. 08081135.
29For instance, even if a U.S. worker met the employer's minimum requirements, the employer could still lawfully reject the worker if he or she was unable to perform the duties of the position. See e.g. Ashbrook-Simon-Hartley v. McLaughton, 863 F.2d 410 (5th Cir. 1989) (proficiency in English even if not listed as a job requirement is an inherent requirement for the performance of the duties of the position).
31The DOL filed a memorandum of law opposing Fragomen's Motion for a Preliminary Injunction (Opposition Brief) on September 15, 2008, in Fragomen v. Chao arguing that most of Fragomen's claims were moot as a result of the issuance of its August 29, 2008 Restatement, but justified its rationale to continue to audit all of Fragomen's labor certification applications based on the language of the forms requesting its clients to contact an attorney of the firm if it found a qualified worker, and also on the additional allegation that the DOL had discovered that Fragomen had placed its paralegals at various employer client sites to assist HR, and Fragomen had conceded that at least one of these paralegals had screened resumes on behalf of the employer client. The DOL's Opposition Brief is available on AILA Infonet at Doc. No. 08090361. Fragomen's Reply of September 10, 2008 still objected to the DOL's ban on the attorney's ban on screening resumes as stated in its August 29, 2008 Restatement, further arguing, inter alia, that the DOL's insertion of the additional language in 20 CFR §656.10(b)(2)(i), "for either the employer", without notice and comment, violated the rulemaking requirements set forth in the Administrative Procedures Act (APA). Fragomen asserted, citing Rojas, that it was always acting as the attorney for the employer and not the alien, and thus was not affected by 20 CFR §656.10(b)(2)(i) and (ii). Fragomen's Reply is available on AILA Infonet at Doc. No. 08091135. On October 24, 2008, DOL and Fragomen filed a Joint Stipulation and Order setting forth the terms of settlement and case dismissal, available on AILA Infonet at Doc. No. 0811030.
32See DOL's General Administrative Letter No 1-97, Measures for Increasing Efficiency in the Permanent Labor Certification Process (GAL I-97), which introduced the "Reduction in Recruitment" procedure that allowed employers to conduct their own "real world" recruitment prior to filing a labor certification, available on AILA Infonet at Doc. No. 96100140.
33In Muriel Horowitz, 96-INA-369 (BALCA 1998), the agent, rather than attorney, did not implicate old 20 CFR §656.20(b)(3) as he interviewed an applicant who did not qualify as a U.S. worker. The authors, however, do not advise that attorneys rely on this decision to screen or interview job applicants solely to determine whether the applicant is a U.S. worker or not. If, after the screening, it turns out that the applicant is a U.S. worker, the attorney will have violated the regulation on the ground that it has a "chilling effect" on such workers applying for the position. See Techknits, supra. This task, at least initially, is also best left to the employer. Once the employer makes the initial determination, there is nothing to prevent the employer from consulting with an attorney. Indeed, determining who qualifies as a U.S. worker requires an attorney's intervention as it is a rather complex definition. Pursuant to 20 CFR §656.3, "United States worker" is defined as any worker who is: 1) A U.S. citizen; 2) A U.S. national; 3) Lawfully admitted for permanent residence; 4) Granted the status of an alien lawfully admitted for temporary residence under 8 USC 1160(a), 1161(a), or 1255a(a)(1); 5) Admitted as a refugee under 8 USC 1157; or 6) Granted asylum under 8 USC 1158.
36Available on AILA Infonet at Doc. No. 08091781; See also "What's New" at http://www.foreignlaborcert.doleta.gov (Sept. 19, 2008).
37One example is 20 CFR §656.17 (h)(4), which states: "If the alien beneficiary already is employed by the employer, and the alien does not meet the primary job requirements and only potentially qualifies for the job by virtue of the employer's alternative requirements, certification will be denied unless the application states that any suitable combination of education, training, experience is acceptable." Where the foreign worker is already employed and does not meet the primary job requirements, an attorney, during the initial assessment of the resumes, might be able to guide the employer as to whether a U.S. applicant is qualified for the position based on "any suitable combination of education, training or experience."
38Mark Hamblett, "Labor Department Drops Green Card Audit of Nation's Largest Immigration Law Firm", New York Law Journal (Sept. 19, 2008), available at http://www.law.com/jsp/law/LawArticleFriendly.jsp?id=120242639265.
3920 CFR §656.12(b), which took effect on July 17, 2007, provides: "An employer must not seek or receive payment of any kind for any activity related to obtaining permanent labor certification, including payment of the employer's attorneys' fees, whether as an incentive or inducement to filing, or as a reimbursement for costs incurred in preparing or filing a permanent labor certification application, except when work to be performed by the alien in connection with the job opportunity would benefit or accrue to the person or entity making the payment, based on that person's or entity's established business relationship with the employer. An alien may pay his or her own costs in connection with a labor certification, including attorneys fees for representation of the alien, except that where the same attorney represents both the alien and the employer, such costs shall be borne by the employer. For purposes of this paragraph (b), payment includes, but is not limited to monetary payments; wage concessions, including deductions from wages, salary, or benefits; kickbacks, bribes, or tributes; in kind payments; and free labor."
On the other hand, the lawyer representing the employer in the labor certification who acts in a manner that would lead the alien to reasonably consider the attorney to be representing his or her own interests, owes the same duty of loyalty and zealous advocacy to the alien as to the employer paying the legal fees. See, infra, note 68, for a discussion on why this prohibition does not preclude the attorney from also representing the foreign national at the same time as the employer.
40This does not mean that the employer has to hire such an applicant but, rather, that the requirements at issue must genuinely represent true minimum requirements whose satisfaction is essential to effective job performance. An employer who answers this question in the negative should look in the mirror to determine if such requirements would benefit from revision or replacement.
41These questions were suggested by the panel entitled The Appropriate Scope of Representation of Employers in Labor Certification at the AILA Annual Conference in Vancouver, BC, on June 26, 2008. The authors also recommend that readers review the latest AILA advisory in the aftermath of the Fragomen settlement, The Role of the Attorney in the PERM Process After the Fragomen Settlement, available on AILA Infonet at Doc. No. 08110666 ("AILA Advisory on the Role of the Lawyer").
42Although in Tom O'Brien Nissan Inc, 97- INA-0435 (BALCA 1999), BALCA held that the name of the immigration consultant/paralegal on the return receipt did not create a chilling effect, such a practice could result in a challenge from the DOL and thus the authors advise that it is best to avoid such practice. See also Leo's Automative Service #1, 2006-INA-00020 (BALCA 2007)(followed Tom O'Brien in case where alien's name appeared on the return receipt).
43This will be discussed in detail in the next session, infra, Hard Times: Layoffs and Labor Certification. There are several key qualifiers and unresolved issues that surround this definition under 20 CFR § 656.17(k)(1). It would be impossible for any employer untutored in the law to understand them or even realize they exist. That is why the close and constant involvement of the attorney is necessary not merely to make sure that the employer is living up to its obligations under the PERM regulations but to afford all U.S. workers who must be considered, the opportunity to receive meaningful review. Unduly intrusive restrictions on the scope of attorney involvement in consideration of job applicants works to their detriment. The regulation cannot be interpreted or applied in a vacuum but only in a manner that achieves, rather than frustrates, a larger objective. Not allowing the attorney to advise the employer as to which U.S. workers will have been deemed laid off under PERM guidelines, makes it immeasurably more difficult for the employer to understand what the regulation on layoffs means and what it requires the employer to do. There is no way that any laid off U.S. worker benefits from such confusion. The only attorney involvement that should be prohibited is that which impermissibly limits full and fair consideration of applicants. Attorney involvement in consideration of U.S. applicants that facilitates proper consideration of laid off workers should be promoted by DOL, not penalized.
49The employer must be apprised of who can qualify as a minimally qualified worker. For instance, even if the applicant does not posses a skill, which can be acquired through a "reasonable period of on-the-job training." 20 CFR §656.17(g).
55One example of such an instruction in Fragomen's questionnaire indicated: "Reminder: Immediately review all resumes and contact all applicants for a phone interview who on the face of their resume are potentially qualified for the offered position. 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 the position." Another version of the Fragomen questionnaire stated: "Reminder: Immediately review all resumes and contact all applicants for a phone 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 on ETA 9089." Yet another version stated: "Closing the interview: If the applicant meets the requirements and is still interested in the position after the interview (including location and salary), tell the applicant that the company will contact him/her after considering the application (contact FDBL immediately)." These questionnaires are part of Fragomen's pleadings (Exhibits A, B and C to the Complaint), supra, note 26, available on AILA Infonet at Doc. No. 08081135.
57The video clip can be found on youtube at
5988-INA-152 (BALCA 1987). But see Park Woodworking, Inc., 90-INA-93 (Jan. 29, 1992) (strictly construing Madeline Bloom to situations involving egregious conduct beyond attorney negligence or administrative oversight, and grant of labor certification was a foregone conclusion but for such conduct); see also Hopkins Lumber Co, 2008-INA-0037-41 (BALCA 2008) (following Park Woodworking, and further holding that even if Matter of Lozada, 19 I&N Dec. 637, applied to DOL proceedings, there was no attempt to comply with Lozada).
61See The Employment Situation: November 2008, Bureau of Labor Statistics, http://www.bls.gov/news.release/empsit.nr0.htm
62Much of the legal research for this section was originally done for Gary Endelman, Not All Layoffs Are Created Equal: Layoffs in the PERM Looking Glass, available at http://www.ilw.com/articles/2005,0517-endelman.shtm. The authors are grateful to Sam Udani and ILW.COM for being able to use it for this article as well.
63Note that the position itself may not necessarily go away. So, for PERM purposes, a layoff does not require the work force to shrink. Where you have a worker let go while the job itself stays, this is not a reduction in force as this term has traditionally been interpreted for non-immigration purposes. In an employment case involving allegations of age discrimination, for example, the common understanding is that "an employee is not eliminated as part of a work force reduction when he or she is replaced after his or her discharge. "Barnes v. GenCorp, Inc., 896 F.2d 1457, 1465 (6th Cir. 1990) (emphasis added); See also Matthews v. Allis-Chalmers, 769 F.2d 1215, 1217 (7th Cir. 1985) ("By definition, when the employer reduces his work force he hires no one to replace the ones he lets go"). In fact, in those instances where the alien beneficiary will perform the job previously held by a laid off US worker, labor certification will obviously take place outside the context of a reduction in force. This would clearly require a termination for cause and hence not be considered a layoff for PERM purposes.
6420 CFR § 656.3 defines job opportunity as "a job opening for employment at a place in the United States to which U.S. workers can be referred." On the other hand, "occupation" is not defined. The critical point is that jobs have requirements; occupations do not. The regulation does not grasp this. While the PERM layoff rule defines a "related occupation" with reference to "essential duties", elsewhere in this same rule at 20 CFR §656.17(h)(1), DOL relied on O*NET to judge the business necessity of job opportunity requirements. 20 CFR § 656.17(h)(i) speaks of job duties that are essential to perform. Does "essential" mean different thing for lay offs and for justifying job requirements. Maybe not, but the very need to even ask such a question suggests the true problem. At present, lawyers are confounded by the sheer lack of definition and massive intellectual confusion resulting from use of this free floating term when it is not moored to a particular job for an individual employer. Query: Are normal and essential the same thing? What about duties and requirements? Which one belongs to a job and which to the larger occupation? Hard to tell the players without a scorecard.
65The authors wish to extend a grateful thanks to their colleague William Stock for allowing them to read and profit from his cogent decoding of the O*NET enigma published most recently in AILA's David Stanton Manual on Labor Certification, 4th Edition. Co-authored by Geoffrey Forney and William Stock, The "New Normal" Job Requirements :Understanding O*NET and Its Role Within PERM, remains the starting point for any serious or sustained O*NET analysis.
66See Forney & Stock at n.68(Accord Lebanese Arak Corp., 87-INA-683 (BALCA April 24, 1989), Matter of Ivy H. Cheng, 1993-INA-106 (BALCA June 28, 1994), Matter of Karim Amiryani, 2003- INA-226 (BALCA Sept. 28, 2004)).
6720 CFR 656.17(k)(1). Even here, nervous employers and their anxious advocates cannot rest easy when they remember that, under the RIR regime, BALCA allowed DOL to review layoffs that came before this six month cut-off. See Matter of Qwest Communications, No. 2004- INA- 361 and 362 (BALCA Dec. 16, 2004) available at 2004 BALCA LEXIS 245; Matter of Solectron Corp; 2003-INA-143 (BALCA Aug. 12, 2004); Matter of Staples Inc., 2003-INA-177 (BALCA Sept. 7, 2004).
6869 Fed. Reg. No. 247, 77326,77354 (Dec. 27, 2004) ("We do not believe it is reasonable to place such requirements on employer applicants with respect to workers laid off by other employers.") ("hereinafter cited as "PERM RULE"). But see note 1 infra as a caution to remember that DOL is going to be sorely tempted to consider industry layoffs despite the plain text of its own rule. Any PERM application in a hard-hit area or industry is going to be audited or, at a minimum, subjected to supervised recruitment where the Certifying Officer may properly consider industry layoffs. Id.
70By requiring "cause" as an insulation against problems with layoffs, the PERM rule conflicts with the employment at will doctrine. In the absence of any expressed or implied intent by Congress that this should be the result, one wonders on what authority DOL draws to legislate in such an expansive fashion. This is certainly not what traditional labor law would teach should be done; nothing in the PERM rule gives DOL the license to substitute its judgment for that of the employer as the price of labor certification when it comes to deciding what personnel practices are best adapted to its business needs::"Thus, unless the employer has manifested its intent to terminate for cause only, the traditional doctrine of at will employment is applicable." Batchelor v. Sears, Roebuck & Co., 574 F. Supp. 1480, 1485 (E.D. Mich. 1983). DOL lacks the authority through the mechanism of the PERM rule to give the US employee a property interest in his/her job and/or an expectation of continued employment that would otherwise not exist. See Bishop v. Wood, 426 US 341, 345 n.8 (1976) citing Arnett v. Kennedy, 416 US 134, 151-152 (1974) ( an employee who could be dismissed only for cause "had a property interest entitling him to procedural due process.")
Employers who file PERM cases do not abrogate their right to invoke the employment at-will doctrine. The issue is not the unquestioned authority of DOL as a federal agency to operate a federal program according to federal standards but, rather, the lack of authority for any federal agency to decide questions of state employment law on its own for its own purposes. Consider the following three examples ( more could be given):
A: Say, for example, your employer has a corporate headquarters in Portland, Oregon. Trying to be a decent corporate citizen, this company tries to treat its employees in the right way. Then, they file a PERM case for a talented foreign-born worker after going through some layoffs. Does this mean that they are no longer an at- will employer ? Under the PERM rule, yes; under Oregon law no. See Bland v Blount Inc., 2001 U.S. Dist. LEXIS 7283, 8-9 (D. Or. April 9, 2001)("An employer's general adherence to good business practices does not create a binding contractual obligation always to terminate employees only for cause. Cf. Wooton v. Viking Distrib. Co., 136 Ore. App. 56, 60, 899 P.2d 1219 (1995) (employer's intention and hope to retain good employees for long periods of time does not transform at-will employment into a contract for extended employment), rev. denied, 322 Ore. 613, 911 P.2d 1231 (1996)") What Oregon law allows, PERM would take away: "Under Oregon law, there is a legal presumption that absent a contractual, statutory or constitutional requirement, an employer may discharge an employee at any time and for any reason." Koepping v. Tri-County Metro. Transp. Dist., 120 F.3d 998, 1002 (9th Cir. 1997).
B:Take a second illustration: an employer in Los Angeles has to lay off some engineers and then files a labor certification in that same occupation. Does that employer have to prove that its layoffs were for cause? PERM says yes; California says No: "Under California law, an employee's term of employment, when not specified in an employment contract or other document or oral agreement, is considered a term that may be terminated "at will" by either party. Cal. Labor Code § 2922… This presumption may be rebutted only by evidence of an express or implied agreement that the employment will terminate only "for cause". Pugh v. See's Candies, Inc., 116 Cal. App. 3d 311, 324-25, 171 Cal. Rptr. 917 (1981); Foley v. Interactive Data Corp., 47 Cal. 3d 654, 668, 254 Cal. Rptr. 211, 765 P.2d 373 (1988)."Hoy v. Sears, Roebuck & Co., 861 F. Supp. 881, 884-885 (N.D. Cal. 1994)
C: Does an employer in Aberdeen, South Dakota have to throw out its employee handbook and layoff employees only for cause simply because it files a PERM case? Yes under PERM; no under South Dakota law:" South Dakota law provides that employment having no specific term may be terminated at the will of either party… The South Dakota Supreme Court has recognized "a narrow, contract-based exception to the employment at will doctrine . . where an employer specifically agrees in an employee handbook to discharge employees, for cause only. "Butterfield, 437 N.W.2d at 859, citing Osterkamp v. Alkota Mfg., Inc., 332 N.W.2d 275 (S.D. 1983) (Osterkamp). "Stedillie v. American Colloid Co., 967 F.2d 274, 276 (8th Cir. S.D. 1992). Submission of an ETA 9089 is not such a "narrow, contract-based exception".
There is another thing, perhaps a larger and more profound objection: What DOL thinks "cause" means may not be the same throughout the nation; in effect, what the PERM rule seeks to do is to nationalize the meaning of "cause" in a way that could conflict with established state law. Suppose, for example, an employer in Michigan files a labor certification after recent layoffs. Termination because of economic hardship constitutes termination for cause under Michigan law. See, e.g., Bhogaonker v. Metropolitan Hospital, 164 Mich. App. 563 (1987), appeal denied, 429 Mich. 898 (1988); Friske v. Jasinski Builders, Inc., 156 Mich. App. 468, 472 (1986), appeal denied, 428 Mich. 880 (1987); Boynton v. TRW, Inc., 858 F.2d 1178, 1184 (6th Cir. 1988) (en banc). Under the PERM rule, however, this same termination may not be for cause. So, what governs- Michigan law or 20 CFR 656.17(k)(1)? Is such action a PERM layoff or not?
This kind of conceptual confusion inevitably results when a federal agency seeks to regulate conduct best left to the state police power. Had DOL allowed the SWAs to retain a meaningful role in labor certification, something they lost with the advent of PERM, perhaps this could have been avoided.
72Matt Richtel, More Companies Cut Labor Costs Without Layoffs, New York Times p. 1, cl.1 ( December 22, 2008)("A growing number of employers, hoping to avoid or limit layoffs, are implementing four- day workweeks, unpaid vacations and voluntary or enforced furloughs, along with wage freezes, pension cuts, and flexible work schedules. These employers are still cutting labor costs, but hanging onto the labor.")
75Fishgold v. Sullivan Drydock & Repair Corp., 328 US 275, 285 (1946)(" Discharge normally means termination of the employment relationship or loss of a position. In common parlance and in industrial parlance a person who has been laid off by operation of a seniority system and put on a waiting list for reassignment would hardly be considered as having been "discharged.") A "layoff" is ordinarily defined as a "period of temporary dismissal"; embedded in the concept is the expectation of recall. Id. at 287 n.11 & 286-87; Accord, Lord Manufacturing Co. v. Nemenz, 65 F. Supp. 711, 723 (W.D.Pa.1946); See also Acme Industrial Co., 227 N.L.R.B. 249 (1976).
81PERM Rule at 77355: "Employers must document that they offered the position to those laid off workers who are able, willing, and qualified for the job opportunity and the results of their consideration of such workers."(emphasis added)
85DOL realizes that even a conscientious employer who wants to do the right thing may find it hard to get in touch with laid off workers: See PERM RULE at 77355 :" Laid-off staff may be unreachable , and may be unwilling to cooperate with former employers seeking information about their current employment or salary."
91Cf The definition of layoff in the Seventh Edition of Black's Law Dictionary:" The termination of employment at the employer's instigation' esp., the termination - either temporary or permanent - of a large number of employees in a short time." BLACK'S LAW DICTIONARY 896 (7th Ed. 1999).
92See the famous Ziegler Memoranda . AILA Infonet Doc. Nos. 0232232 (posted March 22, 2002) and 02060703 (posted August 6, 2002). The Memoranda themselves date from March 20th and May 28th, 2002, respectively.. Eleanor Pelta penned a cogent analysis of the foundation Ziegler Memorandum in AILA Infonet Doc. 04041633 (posted April 16, 2002).
93That was precisely the view that Dale Ziegler took of the matter. See Ziegler Memorandum dated March 20, 2002 posted as AILA Infonet Doc. 02032232. But see Report of DOL-ETA Liasion Committee Teleconference at question No.9 on p.3 posted as AILA Infonet Doc. No. 02012871 (January 28, 2002)( Dale Ziegler instructs the Dallas Certifying Office to hold certain cases from national companies experiencing large-scale layoffs that took place in multiple divisions at different locations to determine if qualified US workers from out of market sites were given an opportunity to apply for the advertise job opportunity).
"Thus, when considering an RIR request by an employer which has engaged in layoffs, the CO is authorized to ask whether the employer looked beyond the "area of intended employment" for workers willing to move. Where the Employer has laid-off numerous workers at other facilities owned by the employer, we see no reason why the CO could not inquire into the availability of laid off employees in geographically diverse locations who may be willing to move, especially when the case is in the posture of an RIR request. See also Compaq Computer Corp., 2002-INA-249 et al (Sept. 3, 2003) (RIR may be denied when an employer who has laid off workers does not address the potential availability of workers from other locations).
The authors wish to thank the noted immigration scholar and New York Yankee fan supreme Naomi Schorr for bringing this unsettling possibility to their attention.
96Interested and diligent readers may profitably look at Matter of Solectron Corp., No. 2003- INA- 144 (BALCA, August 12, 2004) available at 2004 BALCA LEXIS 210 and; Matter of Staples Inc., No. 2003- INA- 177 ( BALCA, September 7, 2004) available at 2004 BALCA LEXIS 149.
97One note of caution can be gleaned from 656.10 (a)(8) which reminds us that the job opportunity has to be "clearly open" to qualified US workers. Query: does this trump the six month statute of limitations in 656.17(k)(1) and provide a justification for considering post-submission layoffs? There is more. Take a long and sober look at 656.1 (a)(1) that says, in pertinent part, something worth pondering:
"There are not sufficient United States workers who are able, willing, qualified and available at the time of application for a visa and admission into the United States"
99However generous, discretion through the use of the term "may" has its limits. As aptly noted by the US Supreme Court in the context of another provision, INA § 241(a)(6), while discretion is expansive, even generous, it is not unlimited but tempered by the element of ambiguity. See Zadvydas v. Davis, 533 U.S. 678, 697 (2001). Indeed, , the exercise by the CO of the revocation power should be for the same reason and in the same manner.
101The authors are deeply indebted to David Pakula for sharing his expertise on this topic through several e mail exchanges. Also, the authors thank Michael Piston for joining in the e mail discussions a few days later and further enriching the conversation on this complex subject. This section has been greatly enriched as a result of extensive e mail exchanges with David Pakula and Michael Piston, which the authors have liberally incorporated into this section for the benefit of readers. Finally, the authors also thank Joel Stewart (he introduced David Pakula to us) and Sam Udani for their input.
103Pursuant to 20 CFR § 656.24(e)(6), "a new application in the same occupation for the same alien can not be filed while a Request for Review is pending with the Board of Alien Labor Certification Appeals."
104See INA § 240(c)(2)(A). If a returning LPR is charged with inadmissibility, including under § 212(a)(5), the authors posit that the government has the burden of proving by "clear, unequivocal, and convincing evidence" that the LPR should not be removed from the US pursuant to Woodby v. INS, 385 U.S. 276 (1966). For a further discussion on the burden of proof for LPRs, see Endelman and Mehta, Home is Where the Card is: How to Preserve Lawful Permanent Resident Status in a Global Economy, 13 Bender's Immig. Bull. 849 (July 1, 2008).
10520 CFR § 656.12(b). There is no regulatory prohibition against a lawyer representing only the alien: An alien may pay his or her own costs in connection with a labor certification, including attorneys' fees for representation of the alien..." When taken in combination with the citation to INA 291 as the foundation for the entire PERM rule (20 CFR 656.2(b)), the PERM regulations clearly establish the alien beneficiary as within the "zone of interests" required for standing to sue in federal court. See Association of Data Processing Service Organization v. Camp, 397 US 150, 153 (1970). Moreover, we can take this logic a step further. Since the alien can pay a lawyer to represent the alien, and only the alien, before the PERM application is filed, why could not this same alien pay this same lawyer to seek judicial review under the APA should the Certifying Officer deny certification, regardless of whether the employer joins in such appeal?
106See Pat's Pizza Restaurant, 67-INA-396 (BALCA Feb., 24, 1998) (holding that appeal was untimely where the attorney submitted a Form G-28 solely for the employee). DOL's recent ability to revoke an approved labor certification at any time if the Certifying Officer "finds that the certification was not justified," 20 C.F.R. § 656.32(a), leaves the alien completely at the mercy of both the DOL and his or her employer. If the employer does not choose to challenge the revocation, the alien is trapped under the DOL rule. And what if the alien has already exercised portability under INA § 204(j)? This would further compound the problem.
110Section 10(c) of the APA, 5 U.S.C. § 704, provides, "Except as otherwise expressly required by the statute, agency action otherwise final is final for the purposes of this section whether or not there has been presented or determined an application for a declaratory order, for any form of reconsideration, or, unless the agency otherwise requires by rule and provides that the action meanwhile is inoperative, for an appeal to a superior agency authority."
For a good explanation of Darby, see Dixie Fuel Co. v. Commissioner, SSA, 171 F.3d 1052, 1058-59 (6th Cir. 1999):
Under the doctrine of exhaustion of administrative remedies, a party is not entitled to judicial relief for an actual or threatened injury until the requisite administrative remedies have been exhausted. See, e.g., McKart v. United States, 395 U.S. 185, 193, 89 S.Ct. 1657, 23 L.Ed.2d 194 (1969) (citing Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 50-51, 58 S.Ct. 459, 82 L.Ed. 638 (1938)). However, the Supreme Court has long held that, at least in non-APA cases, the exhaustion requirement is far from absolute. "Of paramount importance to any exhaustion inquiry is congressional intent. Where *1059 Congress specifically mandates, exhaustion is required. But where Congress has not clearly required exhaustion, sound judicial discretion governs." McCarthy v. Madigan, 503 U.S. 140, 144, 112 S.Ct. 1081, 117 L.Ed.2d 291 (1992) (internal citations omitted).
111Id. See also Ciba-Geigy Corp. v. E.P.A., 46 F.3d 1208, 1210 & n. 2 (D.C.Cir.1995) (summarizing the holding of Darby as "courts cannot require exhaustion of administrative remedies where, as here, it is not expressly required by statute or agency rule").
114For similar advice regarding bypassing the Appeals Administrative Office (AAO), See Mary Kenney, Failure To Appeal To The AAO: Does It Bar All Federal Court Review Of The Case? Practice Advisory, American Immigration Law Foundation, July 22, 2004, available at www.ailf.org.
Examples of the kind of statutes or agency rules under which administrative exhaustion would be required might include: 8 U.S.C. § 1105(a)(c) ( "[a]n order of deportation ... shall not be reviewed by any court if the alien has not exhausted the administrative remedies available to him as of right under the immigration laws and regulations") (see also 8 C.F.R. §§ 3.39, 242.21; Townsend v. INS, 799 F.2d 179, 182 (5th Cir.1986)); and, 20 C.F.R. § 404.900(b) (providing in social security cases that if a party fails to pursue all available steps in the agency review process, "you will lose your right to further administrative review and your right to judicial review, unless you can show us that there was good cause for your failure to make a timely request for review") (see also Paul v. Shalala, 29 F.3d 208, 210 (5th Cir.1994)).
See also Shawnee Trail Conservancy v. USDDA, 222 F.3d 383 (7th Cir. 2000) (exhaustion mandatory where regulation stated that federal district court review would be premature unless the plaintiff exhausted administrative remedies); Conservancy Inc. v. DOA, 134 F.3d 409 (exhaustion mandated where the statute allowed review of final order and final order was defined as an order following administrative appeal); Dixie Fuel Co. v. Commissioner, SSA, 171 F.3d 1052 (6th Cir. 1999).
"Generally, an immigration plaintiff is required to pursue and exhaust all administrative remedies before seeking relief in federal court because there are explicit statutory requirements in certain sections of the INA and a comprehensive administrative review scheme exists. See, e.g., 8 U.S.C. § 1252(d) (providing for judicial review of final orders where the alien has exhausted administrative remedies); Singh v. Reno, 182 F.3d 504, 511 (7th Cir. 1999); Mojsilovic v. INS, 156 F.3d 743, 748 (7th Cir. 1998); Castaneda-Suarez v. INS, 993 F.2d 142, 144-45 (7th Cir. 1993); see also Coit Independence Joint Venture v. FSLIC, 489 U.S. 561, 579, 103 L. Ed. 2d 602, 109 S. Ct. 1361 (1989); Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 50-51, 82 L. Ed. 638, 58 S. Ct. 459 (1938). However, "exhaustion may be excused if: (1) requiring exhaustion of administrative remedies causes prejudice, due to unreasonable delay or an "indefinite time frame for administrative action"; (2) the agency lacks the ability or competence to resolve the issue or grant the relief requested; (3) appealing through the administrative [**17] process would be futile because the agency is biased or has predetermined the issue; or (4) where substantial constitutional questions are raised. McCarthy v. Madigan, 503 U.S. 140, 146-48, 117 L. Ed. 2d 291, 112 S. Ct. 1081 (1992); Bowen v. City of New York, 476 U.S. 467, 483, 90 L. Ed. 2d 462, 106 S. Ct. 2022 (1986); Mathews v. Diaz, 426 U.S. 67, 76, 48 L. Ed. 2d 478, 96 S. Ct. 1883 (1976); Gibson v. Berryhill, 411 U.S. 564, 575 n. 14, 36 L. Ed. 2d 488, 93 S. Ct. 1689 (1973); Houghton v. Shafer, 392 U.S. 639, 640, 20 L. Ed. 2d 1319, 88 S. Ct. 2119 (1968); McNeese v. Board of Ed. for Community School Dist., 187, 373 U.S. 668, 675, 10 L. Ed. 2d 622, 83 S. Ct. 1433 (1963)."
It can be argued that an attempt by an alien to ask for redress from BALCA would be futile, thus dispensing with the need to exhaust. This is one step removed from saying that the alien "may" appeal to BALCA but, even if the regulation said that, which it does not, the exhaustion requirement would still not apply. See Chu Inc. v. Mukasey, 256 Fed. Appx. 935 at 3, 2007 US. App. LEXIS 27851 (Nov. 27, 2007)( no requirement to ask AAO to review I -140 denial as precondition to judicial review):"The APA permits judicial review of agency decisions when, as here, no law or regulation requires interagency review prior to seeking judicial review. See Darby v. Cisneros, 509 U.S. 137, 154, 113 S. Ct. 2539, 125 L. Ed. 2d 113 (1993)." Same result in Hafeez v. Dorochoff, 2007 U.S. Dist. LEXIS 89009 (N.D. Ill. Nov. 30, 2007) (no need to appeal I 130 denial); same result reached in EG Enterprises Inc. v. Department of Homeland Security 467 F. Supp. 2d 728, 732 (E.D.Mich. 2006) (do not have to go to AAO first to appeal denial of H-1B petition). The latter case is particularly on point because it is owned by the employer much the same as a labor certification, more so, because the alien has to sign an approved ETA 9089 while the alien beneficiary does not have to sign an approved I-129. See also Young v Reno, 114 F.3d 879 (9th Cir 1997)(no need to appeal to BIA following revocation of family 4th preference petition under the Darby exception to exhaustion where the petition "may" appeal petition revocation but did not have to).
121Even the Fifth Circuit in Reddy v. DOL, 492 F.2d 538 (5th Cir. 1974) established standing for the alien, and interestingly distinguished cases where the aliens were denied standing, e.g. Cobb v. Murrell, 386 F.2d 947 (5th Cir. 1967), as they were out of the United States. In Reddy, the alien was lawfully resident in the country when he sought labor certification, which the court emphasized:
"We think it beyond dispute that Dhekney, an alien lawfully resident in this country at the time he sought § 1182(a) (14) certification, is "A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute," 5 U.S.C. § 702, 3 and is therefore entitled to review unless "statutes preclude judicial review" or "agency [**14] action is committed to agency discretion by law," 5 U.S.C. § 701. The APA's judicial review provisions were designed to be applied broadly, and "only upon a showing of "clear and convincing evidence" of a contrary legislative intent should the courts restrict access to judicial review." Abbott Laboratories v. Gardner, 387 U.S. 136, 140-141, 87 S. Ct. 1507, 1511, 18 L. Ed. 2d 681, 686-687 (1967), citing Rusk v. Cort, 369 U.S. 367, 379-380, 82 S. Ct. 787, 794, 7 L. Ed. 2d 809, 817 (1962). We find no such evidence here." Reddy at 541.
Beyond that, the DOL could not seek refuge in the proposition that a decision to grant or deny certification was inherently subjective and therefore immune from judicial second guessing:
"Nor can we accept the notion that this determination is committed to agency discretion to such an extent as to preclude our limited review for erroneous application of the statutory standards. The findings required under § 1182(a) (14) are quite specific. There is little room for the exercise of that unfettered discretion based on unique competence which justifies a court in refusing any review at all. Cf. Ferry v. Udall, 336 F.2d 706, 711-712 (CA9, 1964); Davis, Administrative Law Treatise, § 28.16 (Supp. 1970). Additionally, as this court observed in a case somewhat similar to this one, "In immigration and deportation cases courts have been especially responsive to the powerful pull of the [Administrative Procedure] Act in the direction of the right of judicial review of agency action." Estrada v. Ahrens, 296 F.2d 690 (CA5, 1961)." Id.
123Interestingly, the word "judicial" was stricken from 20 CFR § 656.26(a) even prior to the promulgation of the latest version, supra, when PERM was promulgated on December 28, 2005. The deletion of "judicial" comports with the admonition by the court in Gladysz, supra. By only allowing the employer, rather than a stand alone alien, from seeking review, the regulation, with the term "judicial" included in it, was inconsistent with the alien's right to seek federal court review under the APA. Future litigants ought to point out the significance of the deletion of this term from § 656.26(a) in further support of the ability of alien to seek review in federal court.
125The Sieminski Court cited three cases that buttress the alien's claim to independent APA standing: Shuk Yee Chan v. Regional Manpower Administrator, 521 F. 2d 592 (7th Cir. 1975); Jadeszko v. Brennan, 418 F. Supp. 92 (E.D.Pa. 1976) and Ozbirman v. Regional Manpower Administrator, 334 F. Supp. 467 (S.D.N.Y. 1971) Sieminski at 792 n.3. Despite such standing, the failure of the employer to join in the appeal to BALCA caused the APA claim to collapse like a house of cards.
127Memorandum from William R. Yates, Deputy Exec. Assoc. Comm'r, Immigr. Servs.Div., File No. HQPRD 70/6.2.8-P, Interim Guidance for Processing Form I-140 Employment-Based Immigrant Petitions and Form I-485 and H-1B Petitions Affected by the American Competitiveness in the Twenty-First Century Act of 2000 (AC 21)( Public Law 106-313)(May 12, 2005) reprinted at 10 Bender's Immig. Bull. 996 at Q. 11(App. G) (June 15, 2005) available at AILA InfoNet Doc.No. 05051810. Similar guidance can be found in Memorandum from Michael Aytes, Acting . Dir. Operations, USCIS, File NO. HPPRD 70/6.2.8-P, Interim Guidance for Processing Form I-140 Employment-Based Immigrant Petitions and Form I-485 and H-1B Petitions Affected by the American Competitiveness in the Twenty-First Century Act of 2000(AC 21) reprinted at 11 Bender's Immigr. Bull.1265 (App.E)(Nov. 1, 2006) available at AILA Info Net Doc. No. 06092763.
12920 CFR § 656.32 (b). Take a look:
130To further clarify, under INA §245(i), an alien who was the subject of a labor certification or immigrant visa petition filed prior to April 30, 2001 can still adjust status in the US even if he or she entered without inspection or is not in status. If the labor certification or petition was filed after January 14, 1998, the individual must have been physically present in the US on December 21, 2000. The requirement of being physically present on December 21, 2000, does not apply to an alien who was the beneficiary of a labor certification or immigrant visa petition filed on or before January 14, 1998. Approvable when filed" means as of the date of the filing the application for labor certification was "proper filed and meritorious when filed and nonfrivolous…" 8 C.F.R. §245.10(a)(3). For an excellent treatment of what constitutes an "approvable as filed" labor certification, see Jung Y. Pak aka Jung Ye Lee, 2008 WL 4146747 (BIA). It is worth noting that when an alien who is "grandfathered" and is placed in removal and seeks a continuance until he or she can adjust status by way of relief against the removal proceeding, some circuits have found an abuse of discretion on the part of the Immigration Judge who denied such a continuance. See Subhan v. Ashcroft, 383 F.3d 591 (7th Cir. 2004); Rajah v. Mukasey, 2008 WL 435002 (C.A. 2) (IJ abuses discretion if decision cannot be located within the range of permissible decisions; remanded to BIA to set standards under when an IJ may or may not grant a continuance); Cf. Zafar v. U.S. Attorney General, 426 F.3d 1330 (11th Cir. 2005) (upholding denial of continuance because § 245(i) grandfathered alien did not yet prove immigrant visa was available as prospect of labor certification approval was speculative). These cases further demonstrate that it is the alien who has the primary interest in the labor certification process during a removal proceeding.
132While there are several reasons for challenging the fee prohibition rule, they go beyond the scope of the article. Readers should refer to AILA's excellent comments entitled "RIN 1205-AB42 Comments to Proposed Rule "Labor Certification for the Permanent Employment of Aliens in the United States; Reducing the Incentives and Opportunities for Fraud and Abuse and Enhancing Program Integrity" (71 Fed. Reg. 7656 (February 13, 2006))," published on AILA Infonet Doc. No. 06033162 (posted March 31, 2006).
133See National Cable & Telecomms. Ass'n v. Brand X Internet Servs., 545 U.S. 967, 982 (2005)("Chevron's premise is that it is for the agencies, not courts, to fill statutory gaps.") Here, when we look at INA Section 212(a)(5)(A) there is nothing for DOL to add. The statute is clear and unambiguous. If Congress wants to prevent the alien from going into court under the APA to challenge the denial of a labor certification, then Congress knows how to do it. If DOL wanted to stipulate that an employer always had to go to BALCA or forget about the APA, it could have said too. Neither Congress nor the DOL has done so despite the fact that the INA has been amended many times and DOL has reinvented the labor certification process more than once. Their silence speaks volumes. There is no need for DOL to clarify what Congress has made crystal clear. That being the case, it is even more transparent that a federal court must honor the intent of Congress and stay its hand against any temptation to take the APA arrow out of an alien beneficiary's quiver.
134Bruce A. Hake, Dual Representation in Immigration Practice, Ethics in a Brave New World 28 (John L. Pinnix, et al. eds., AILA 2004); 156 F.3d 1273 (D.C. Cir. 1998); Paul L. Zulkie & Charles H. Kuck, Ethics and the Immigration Practitioner: Can One Straddle the Fence and Survive? Immgr. L. Today 44 (AILA November/December 2006); Hamel Vyas, Ethical Issues for Immigration Lawyers, Navigating the Fundamentals of Immigration Law, AILA (2008-09 Ed.).
135Although attorneys are advised to consult their own state ethic bar rules, ABA Model Rule 1.7 titled Conflict of Interest: Current Clients, provides the ethical basis for representing multiple clients:
a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:,
136See Hake, supra note, 134, for a trenchant criticism of the Simple Solution. For a useful discussion on affirmative steps to avoid or limit representation of the foreign national client, See Kristina K. Rost, Managing Ethical Conflicts in Business Practice, Immigration & Nationality Law Handbook 38 (AILA 2006-07 ed.).
137Mehta, Finding the "Golden Mean" in Dual Representation - Updated, Immigration Briefings, August 2006, ("Updated Golden Mean article"); Finding the Golden Mean in Dual Representation, Immigration & Nationality Law Handbook 29 (AILA 2005-06 ed.) ("Original Golden Mean article"). The Updated Golden Mean article was also recently published in Navigating the Fundamentals of Immigration Law, Guidance and Tips for Successful Practice (AILA 2007-08 ed); Mehta, Emerging Issues in Dual Representation and Unauthorized Practice of Law, Basic Immigration Law 2008 (Chair, Cyrus D. Mehta), Practising Law Institute. The author liberally borrows concepts, ideas and phrases from these articles.
138See also Mehta, Counterpoint: Ethically Handling Conflicts Between Two Clients Through The Golden Mean, Bender's Immigration Bulletin, August 15, 2007("Counterpoint article") in response to Bruce A. Hake, Advance Waivers Are Unethical In Immigration Practice: Debunking Mehta's Golden Mean, Bender's Immigration Bulletin, June 1, 2007.
139The DOL has also recognized dual representation in its latest rule prohibiting the alien from paying the attorney fees and costs associated with the labor certification. Pursuant to 20 CFR §656.12(b), employers must pay the costs of labor certification, including preparing, filing and obtaining certification. Under this provision, the sponsored beneficiary for labor certification is prohibited from paying the attorneys' fees unless such payments were made prior to July 16, 2007. Nor can the beneficiary pay any of the costs associated with a labor certification application, such as advertisements. The rule also states, "An alien may pay his or her own costs in connection with a labor certification, including attorneys' fees for representation of the alien, except that were the same attorney represents both the alien and the employer, such costs shall be borne by the employer." This should not be viewed as a green light for the attorney to only consider himself/herself to be representing the alien. A DOL FAQ on the rule, available at http://www.foreignlaborcert.doleta.gov/pdf/fraud_faqs_07-13-07.pdf, clarifies that "attorneys may represent aliens in their own interests in the review of a labor certification (but not in the preparation, filing and obtaining of a labor certification, unless such representation is paid for by the employer), and may be paid by the alien for that activity". Unless the employer corporation has its own independent attorney representing it specifically for purposes of preparing and filing the labor certification, the alien cannot pay the fee towards the attorney, who in a dual representation situation, will also be implicitly representing the employer. Although 20 CFR §656.12(b) insists that the employer pay the attorney's fees, it does not eliminate the attorney's ability to also represent the foreign national employee. The formation of an attorney-client relationship is determined by a state's contract and agency law., and it is not necessary for a lawyer to receive a fee from the client in order to establish this relationship. See Vyas, Ethical Issues for Immigration Lawyers, supra, note 134, citing Nichols v. Village Voice Inc., 417 NY.S.2d. 415, 418 (N.Y. Sup. Ct. 1979) & Kurtenback v. Tekippe, 260 N.W.2d 53 (Iowa 1977); see also Los Angeles County Bar Association Ethics Committee Formal Opinion No. 465 (April 15, 1991).
140Nancy-Jo Merritt, Ethical Issues In Written Communications, Basic Immigration Law 2008 (Chair, Cyrus D. Mehta), Practising Law Institute; See also Panteha Abdollahi, The Labor Certification Process: Complex Ethical Issues For Immigration Lawyers, Georgetown Immigration Law Journal, Summer 2003.
141Pursuant to 20 CFR §656.17(g)(2), "[r]ejecting U.S. workers for lacking skills necessary to perform the duties involved in the occupation, where U.S. workers are capable of acquiring skills during a reasonable period of on-the-job training is not a lawful job-related reason for rejection of U.S. workers."
142Pursuant to 20 CFR §656.31(f), the attorney has to be mindful about the employer, as well as the attorney, being potentially debarred inter alia from filing future labor certifications for the willful provision or willfully assisting in the provision of false or inaccurate information in the labor certification application.
143Within this joint representation in a contradictory labor certification system, a lawyer can also be unwittingly caught between his or her duty of loyalty to the co-clients, under ABA Model Rule 1.3, and the duty of candor to the tribunal, under ABA Model rule 3.3. The lawyer in attempting to be as successful as possible for the co-clients may assist in the drafting of a job description that may not necessarily reflect the employer's minimum requirements, but may be tailor-made to reflect the foreign national worker's qualifications. The DOL may view such a job description as fraudulent, and could potentially seek to prosecute the attorney, which could lead to the imposition of criminal penalties as well as the lawyer's disbarment.
144As a result of the difference in the backlogs between the Employment-based Second Preference (EB-2), INA §203(b)(2), positions requiring advanced degrees, and the Employment-based Third Preference (EB-3), INA §203(b)(3), positions requiring bachelor's degrees or two years of experience, there is bound to be pressure from the foreign national to develop job requirements that would ultimately qualify him or her in the EB-2 rather than the EB-3 category, even though the employer may not always requires an advanced degree for the position.
Moreover¸ if the labor certification is denied, and the employer does not wish to take an appeal to the BALCA, the alien may still desire to seek review in federal court as he or she does have standing under the APA as discussed in the section entitled WHAT IF I DON'T AGREE?: Review of a Denial of a Labor Certification in Federal Court, supra. Indeed, because INA § 212(a)(5) is a ground of inadmissibility directed against the alien, there is also a notion of the right to counsel from the perspective of the foreign national employee. It is a violation of fundamental fairness and the APA to deprive the alien from appealing the denial of a labor certification when this is in fact a ground of inadmissibility against him or her. If an attorney undertakes dual representation, he or she ought to be mindful of the potential conflict in the event that that the alien wishes to appeal a denial of a labor certification in federal court. Under the Golden Mean, it may be possible, depending on which client the attorney is more in contact with, to get a waiver from the other or limit the representation. This conflict can be predicted at the outset. Thus, if the alien is more in contact with the attorney, you may want to get consent from the employer that you may continue to represent the alien's interests in an APA action in federal court even after the LC is denied. If the employer is more in contact with the attorney, you may want to apprise both parties that in the event of a denial and if the employer does not choose to appeal, the attorney will cease to represent the alien if he or she wanted to pursue the appeal in his/her own right. However, the alien client would be free to retain his/her own attorney. By setting forth each client's rights at the beginning of the representation, and limiting it, the attorney can avoid a conflict if the labor certification got denied and the alien still wanted to pursue an appeal and the employer did not.
145Readers may wish to refer to the Counterpoint article for a detailed ethical justification for advance waivers and limited representation in immigration practice. For instance, open ended waivers are more likely to be upheld against sophisticated clients, who are experienced users of legal services. A foreign national employee may not always be a sophisticated client, and if that is the case, the waiver must be more specific and comprehensive in predicting adverse consequences. Most important, the waiver will only be effective if the client has given informed consent. See also ABA Model Rule 1.7 and Comments 18 and 22 to Rule 1.7; New York State Bar Opinion 761.
147De Mayolo, Id. at 8. In a climate of increasingly stringent enforcement, the authors feel obliged to mention that a compassionate employer may unwittingly be charged with harboring illegal aliens if labor certification beneficiaries have entered this country illegally and the lawyer who files the labor certification could be viewed by suspicious prosecutors as having assisted in such potentially criminal conduct. See e.g. US v. Tipton, 518 F.3d 591 (8th Cir. 2008); US v. Kim, 193 F.3d 567 (2d Cir. 1999).
151Even though an attorney may be more in contact with the foreign national, it behooves such an attorney preparing and filing the labor certification application to also ensure that he or she is the employer's attorney and remains in contact with the employer. See Tadeusz Kucharski, 2000-INA-116 (BALCA 2002) (holding that non-attorney agent was recklessly negligent in being willfully ignorant about the fact that the employer had passed away and by relying solely on a third party intermediary for communication with his client). See also Ethical Considerations in Immigration Cases, 4 Immigration Law Report 169 (Dec. 1985). A relevant passage from this article is worth noting: "The difficulty of this situation is compounded when the attorney is retained to represent the alien. It may happen in this situation that the employer agrees to the attorney's representation of it but does not make its personnel representative sufficiently available to the attorney, apparently in the belief that the attorney is fundamentally representing the alien. Proceeding on this basis is a tremendous mistake, since the DOL expects the employer to take responsibility for the application and conduct the recruitment of U.S. workers without the involvement of the alien. The danger of the employee repudiating the certification application or recruitment results in this type of case should serve as sufficient deterrent to the practitioner faced with this arrangement." An extract of this article was published in the Casebook by Aleinikoff, Martin, Motomura & Fullerton, Immigration and Citizenship - Process and Policy (Sixth Edition), Thomson/West. But see Los Angeles County Bar Association Ethics Committee Formal Opinion No. 465 (April 15, 1991) (An attorney representing an undocumented alien in the labor certification process is also representing the employer because the filing of this application requires the attorney to disclose the secrets of the employer), supra, note 139.
152DerKevorkian v. Lionbridge Technologies Inc., Slip Copy, 2008 WL 5077720 (C.A. 10 (Colo.)). motion for new trial denied, 2006 WL 898142 (D. Colo. 2006). This case, along with others, is also discussed in the Updated Golden Mean and Counterpoint articles.
155Hearings on H.R. 2580 Before the House Subcommittee on Immigration and Naturalization and the Committee on the Judiciary, 89th Cong. 340 (1965) (statement of Andrew Biemiller, AFL-CIO Legislative Director).
156Just prior to the enactment of the Immigration Act of 1990 (IMMACT 90), Pub. L. No. 101-649, 104 Stat. 4978, there was a chance to reform the labor certification system in a fundamental way. In fact, a House Committee report explained that labor certification neither served the needs of businesses nor protected US workers, and that the system had become "camouflaged behind multiple layers of adjudication, imprecise recruitment guidelines, and lengthy processing time frames." H.R. Rep. No. 101-723(I) at 43. The proposal was to create an attestation promise where there would be no pre-screening of the employer's assertions, and the resources of the DOL would be directed toward investigating complaints received on the attestation. Unfortunately, this proposal never became part of IMMACT 90 because the DOL in a subsequent House Committee report (H.R. rep. No. 101-723(II), at 139-140) indicated that it was developing its own labor certification system, the Labor Market Pilot Program, which would have prelisted shortage occupations kept by the DOL. The Labor Market Information Pilot Program did indeed become part of IMMACT 90, Section 122(a), but because of negative comments received by the DOL this promised reform ultimately did not happen. See 58 Fed. Reg. 15242-50. For further discussion on the competing proposals, see Endelman, Labor Certification from 1952 to PERM: Parts I and II, supra, note 7.
159INA §204(j), which is a codification of §106(c) of the American Competitiveness in the 21st Century Act (AC21), P.L. 106-313, provides: "Job flexibility for long delayed applicants for adjustment of status to permanent residence. - A petition under subsection (a)(1)(D) for an individual whose application for adjustment of status pursuant to section 245 has been filed and remained unadjudicated for 180 days or more shall remains valid with respect to a new job if the individual changes jobs or employers if the new job is in the same or a similar occupational classification as the job for which the petition was filed."
160On the other hand, dual representation may break down as the interests of the employer and employee are no longer aligned. See Counterpoint article for strategies to deal with conflicts arising out of §204(j) portability.
161The surplus of Employment-Based (EB) visa numbers in the 2002-2005 era came about because of the inefficiency of the labor certification system, hence a fall off in the submission of EB-based adjustment cases. As PERM represents a step up in DOL efficiency, it serves to increase the pressure on the EB quotas by leading to an increase in the number of adjustment cases filed. This will continue unless DOL audits slow the system down. So, there is a direct correlation between the success of PERM as a tool to move labor certification cases through the system and growing EB visa backlogs, especially in the EB-3 category. It would not be an exaggeration to state that PERM has directly led to the need for the Department of State to reimpose cut-offs in the EB-3 (Employment-Based Third Preference) category. There are two ways to deal with this. One is to expand the EB quotas themselves, but this is politically unlikely. At the time of this writing, H.R. 5882, a bi-partisan bill to recapture EB visas from previous years' visas, is still pending, but hopes of its passage are dim. The other way is to de-emphasize the importance of having a current priority date and allow people to apply (though not get final approval) for adjustment of status under INA §245 regardless of the applicant's priority date, as currently established through filing of a labor certification application or immigrant petition. Also, §204(j) should be broadly construed to allow maximum job flexibility, given the fact that adjustment of status applications can sometimes remain pending for several years.
This article updates the version appearing in 11th Annual AILA New York Chapter Immigration Law Symposium 1 (AILA 2008). Copyright AILA 2008. A version of this Article also appeared in Benders Immigration Bulletin.
Gary Endelman obtained a BA. History, University of Virginia, PhD in U.S. History, University of Delaware (1978), J.D., University of Houston (1984). He has practiced immigration and nationality law in Houston in private practice (1985-1995) and as the in-house immigration counsel for BP America Inc. handling all US immigration law for the BP Group of Companies throughout the world since March 1995 until the present. Dr. Endelman is Board Certified in Immigration and Nationality Law. He is a frequent speaker and writer on immigration related topics including a column on immigration law. He served as a senior editor of the national conference handbook published by the American Immigration Lawyers Association for a decade. In July 2005 Dr. Endelman testified before the US Senate Judiciary Committee on comprehensive immigration reform. Dr. Endelman is the author of " Solidarity Forever: Rose Schneiderman and the Women's Trade Union Movement" published in 1978 by Arno Press. All opinions expressed herein are the personal views of Gary Endelman and do not represent those of BP or BP America in any way.
Cyrus D. Mehta a graduate of Cambridge University and Columbia Law School, is the Managing Member of Cyrus D. Mehta & Associates, PLLC in New York City. The firm represents corporations and individuals from around the world in a variety of areas such as business and employment immigration, family immigration, consular matters, naturalization, federal court litigation and asylum. Mr. Mehta has received an AV rating from Martindale-Hubbell and is listed in Chambers USA, International Who's Who of Corporate Immigration Lawyers, Best Lawyers and New York Super Lawyers. Mr. Mehta is a former Chairman of the Board of Trustees of the American Immigration Law Foundation (2004-2006). He was also the Secretary and member of the Executive Committee (2003-2007) and the Chair of the Committee on Immigration and Nationality Law (2000-2003) of the New York City Bar. He is a frequent speaker and writer on various immigration-related issues, and is also an Adjunct Associate Professor of Law at Brooklyn Law School where he teaches a course entitled "Immigration and Work." All opinions expressed herein are the personal views of Cyrus D. Mehta and do not represent those of the organizations he has been part of in the past and presently.
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