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Bloggings on Immigration Law

by Roger Algase

The four horsemen of the immigration bureaucracy; ignorance, incompetence, idiocy and insanity

It is bad enough for immigration supporters when one of America's two major parties tacks to the extreme right on the immigration issue and demagogues it in a way that used to be a monopoly of fringe white supremacist hate groups. It is also bad enough when the other major party, while losing no opportunity to speak out for the rights of women, religious freedom and African-Americans, which are also under attack from the far right which now controls the Republican party, runs away from the immigration issue as if that issue had caught the bubonic plague. 

But we should also not forget the dangers to the system coming from inside the immigration bureaucracy. Immigrant rights mean nothing when they depend on officials who are under the influence of the four horsemen of the immigration system: ignorance, incompetence, idiocy and insanity. My next few columns will focus on some of the more egregious  examples of these which I have encountered recently in my own practice. 

Every H-1B lawyer is familiar with the cumbersome and irrational LCA (Labor Condition Application) system which the US Department of Labor (DOL) runs out of its Chicago office. Ever since July, 2009, when DOL installed a defective software system that refuses to recognize a valid federal employer ID number (FEIN) which has not been inputted into the system before, an employer (often a small business) using the LCA system for the first time has to submit an LCA electronically, wait at least a week to receive a denial notice, based on inability to recognize the FEIN, and then submit evidence that the FEIN is valid.

Acceptable evidence usually includes notices sent to the employer from a federal, state, or local tax agency showing the company's name  and the FEIN. After the DOL's "Business Verification Team", which might better be called its "Business Nullification Team", sends the employer (or attorney) an email accepting the FEIN as valid, then the LCA must be submitted again and the employer must wait at least another week for an the LCA to be certified. Only then can the employer file the actual H-1B petition with USCIS.

However, for the past 2 and 1/2 years, this illogical and senseless system has at least been working, as most employers have received at least a few notices of one sort or another from a state or local tax office or other government agency, if not from the IRS, clearly showing the FEIN. But these notices do not usually identify the number as a "FEIN". They may identify it as a "Tax ID Number" or some other equivalent. Up to now, they were still being accepted by the DOL.

However, recently, a notice that I submitted to the employer from a state tax agency that identified the number as an "EIN" was rejected by the DOL because the notice did not say that the number was an "FEIN".  If that number was not an FEIN, what kind of EIN was it? A "GEIN"? A "QEIN"? A "ZEIN"? It would be difficult to carry idiocy to any lower level than this.  

When I asked a DOL phone operator why such an absurd requirement was now in place, I was told that the DOL no longer trusts state tax agencies to identify FEIN's and that the notice must come form the IRS only, in order to be accepted for LCA verification purposes. To idiocy, now add insanity.

About The Author

Roger Algase is a graduate of Harvard College and Harvard Law School. He has been practicing business immigration law in New York City for more than 20 years

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.