Keep The Faith
Author's Note: Given that the DOL had less than veiled threats of its critics at the Las Vegas AILA conference, I write under a nom de plum: Acton Orwell Doesgood. I also note receiving a denial on the basis that the dates for the ten day job posting were not mentioned, (even though form 9089 does not require it and) even though they are written on the posting itself AND on an attachment, and denied also on the theory that the experience letter included in the audit which shows 10 years experience does not qualify the person because the requirement is 3 years experience ! (Now an appeal to BALCA and wait, wait wait).
Whatever happened to the harmless error (now reserved only for the government?) and the ability to "cure" defects? Gone with the idea of timeliness, fairness, and the old "if-you-follow-the-rules-then-you-can-get-approved" attitude of DOL.
- Labor Certification is predicated on the fallacious theory that a person seeking to become an American "takes" a job from an American, when the reality is that the job creates an economic "multiplier effect" and predictability in performance - and profits, are the only reason employers sponsor foreign nationals.
- The employer, and not DOL are in the best position to decide who is best qualified for a job, ( not least qualified, as DOL would seek).
- The DOL is acting ultra vires through "legislation through inaction" and acting as a legislature rather than an implementing agency.
- The DOL has shown an active and dangerous hostility to lawyers and due process - by forbidding foreign nationals from hiring attorneys, by publicly questioning attorney's good faith when attorneys succeed by actually following the DOL-created rules and by creating a sub rosa quota on immigration via publicly announced slow downs and announced suspicions that "too many labor certs are getting approved" ( AILA conferences: New York Chapter December conference and Las Vegas 2009), and by stating publicly that DOL is "seeking denials".
- The DOL has acted ultra vires by rule-making which violates the Administrative Procedures Act and via rule-making intended to obfuscate rather than clarify such that those using the system are disadvantaged or denied.
- The DOL has "dumbed down" occupations increasingly requiring more rather than less education or experience.
- The DOL, which claims to be protecting American workers, hurts American workers by disadvantaging employers seeking Labor Certs for key workers whose positions are foundations for the jobs of other "American" workers.
- The DOL has disadvantaged America by "dumbing down" minimum requirements rather than deferring to employers own determination of business necessity. The DOL has disadvantaged America by failing to recognize the inherent business advantages to foreign language use in marketing, sales, overseas production, international business, and a host of other business applications.
- The DOL violates the current administration's emphasis on "transparency" by failing to respond to inquiries or phone messages.
- The DOL violates the second amendment's "right to petition the government for a redress of grievances" by taking bureaucratic "revenge" against those who seek to challenge their system. (question asked at AILA conference at Las Vegas - "Is my partner right that all of his cases are now being audited after his challenge to denied cases?" DOL answer: " We reserve the right to scrutinize anyone we feel is not acting in good faith.") Is this a “good faith” answer or a veiled threat that DOL will hide behind its authority to investigate to “punish” those who challenge it?
- The DOL is not acting in good faith, issuing denials for picayune omissions without permitting the petitioner to cure, and in so doing, the DOL violates the gravamen of its charge: i.e., if there are no US workers who meet the minimum requirements for a position who are also willing and able to perform the job duties at the prevailing wage, then the Labor Certification should be approved, not denied because of a missed date on a form which is supported elsewhere in evidence, etc.
- The DOL represents the arrogance of power by willfully and knowingly refusing to adjudicate PERM in general, and particularly, where delay harms employers, employees and families who are near the 6th year limitation of their H-1B program.
- The DOL advocates for regulations which strangle the process and are designed to obfuscate, block, slow, and deny cases, rather than meeting their mission (erroneous to begin with) of testing the American job market.
About The Author
Acton Orwell Doesgood is a sole practitioner based in New York with clients across the country, specializing in Employment-based and family immigration since 1993. The author earned Bachelors and Masters degrees in history from the University of Cincinnati, and earned a J.D. at New York Law School evening division while teaching history and literature during the day. The author has served on the Congressional Liaison and other AILA chapter committees, and has been pressing top AILA brass to ask members to create a Model Immigration Code since 1996.
The author writes under a pen name in recognition that DOL may selectively and unfairly deny his client's cases, a recognition borne of recent experiences where DOL has denied a case for being submitted early, (and then re-opened it) and for a denial where evidence submitted was claimed as not submitted when the file copy clearly shows that it was.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.