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Immigration Daily October 11, 2005
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Comment

DOL Mandamus

In a remarkable action involving severely backlogged labor certification applications, a number of petitioners recently sought mandamus relief in the US District Court for the District of Columbia. Their consolidated cases were recently dismissed in summary judgement by that court. For the case, Liberty Fund, Inc. v. Chao, No. 04-0915 (JDB)(and consolidated cases No. 05-142, 05-144, 05-145, 05-147, 05-148, 05-149, 05-150, 05-156, 05-258, 05-259, 05-260, 05-261, 05-262, and 05-412 ) (US District Ct. for the Dist. of Columbia, Sept. 30, 2005), see here.

Since several practitioners across the country are currently considering mandamus actions against DOL, and since this case offers pointers when seeking mandamus relief for labor certs, we offer our comments below for those who are interested in such matters.

It is our opinion that it is futile to commence litigation in labor cert matters without challenging whether 20 CFR 656 (both pre-PERM and PERM) properly implements the statutory scheme at 212(a)(5)(A). The fact is that there exists a fundamental conflict between the statutory intent behind 212(a)(5)(A) and the plain language of 212(a)(5)(A) - Congress's intent was clearly to produce a statistics-driven system (the kind that DOL operated the labor cert program under from 1965 thru 1980), whereas the plain language clearly mandates an individualized system, not a statistical one. The general rule in statutory construction is that, absent ambiguity, the plain language of the statute controls. For the last two-and-a-half decades, under both the variants - pre-PERM and PERM, DOL has operated the labor cert program under an individualized decision paradigm. However, the DOL has, without any statutory authority whatsoever, shifted the burden of production in labor certs from its shoulders' onto the employers'. Under the plain language of the statute, it is the DOL's burden to produce such workers as are willing, able, qualified and available in order to deny an application for labor certification. Under the plain language of the statute, the employer has merely to apply for labor certification, which must be certified, UNLESS DOL can produce a suitable worker. There is nothing in the statutory scheme to permit DOL to compel the employer to perpetrate a recruiting charade on the alien worker and US workers alike. Even if Congress were to step up now or later and say that DOL's fraud on US workers (the labor cert recruiting circus) is A-OK by Congress, it would not change the fact that these last 25 years, DOL has acted without Congressional authority to back up its promulgations at 20 CFR 656. As to the related matter concerning burden of proof, in theory this always remained with DOL pre-PERM, however, in practice, through the use of devices such as BALCA's "totality of circumstances" test and CO's use of conclusory language in reaching arbitrary conclusions, the DOL de facto moved the burden of proof onto employers' shoulders, without any statutory authority to do so. This was the case not in isolated situations, but a consistent, pervasive pattern of behavior by COs across years and decades. However, since the bar found ways to procure certification despite the hurdles raised by DOL, and since employers were concerned more about ends not means, this extra-statutory behavior by DOL went unchallenged. The situation on burden of proof is much more serious in PERM, which enshrines the "totality of circumstances" test into the regulation, thereby granting DOL enormous extra-statutory power unto itself in the labor certification process. Currently, the bar does not grasp how unfriendly a regulation PERM really is. Only the passage of time will convince the bar and the regulated community that denial after arbitrary denial, delay after arbitrary delay, is the direct result of PERM. The heart of PERM is unpredictability, without which DOL's powers in PERM become meaningless, this unpredictability is DOL's design in PERM, and unfortunately, predictability is what the bar and employers have gotten used to over the last 25 years of the labor cert process. The situation is particularly ghastly at 20 CFR 656.24(b)(3), through which the DOL seeks to bring back statistical determinations back into the labor cert process. DOL is apparently willing to re-test long-established case law which forbids DOL from taking into account labor market information, also known as unemployment rate, in making labor cert determinations. Put plainly, the statute commands that labor certification applications be certified in the teeth of massive unemployment UNLESS the statutory conditions are satisfied (able, willing, qualified, available), which, nota bene, are DOL's burden both to prove and to produce. One can quarrel about whether such an outcome is just to US workers, what one cannot quarrel about, in our opinion, is what the plain language of the statute says.

For a fuller analysis and discussion of these issues, see "The Lawyer's Guide To 212(a)(5)(A): Labor Certification From 1952 To PERM" by Gary Endelman and Editor's Interpretation and Comment in Part 1: The PERM Rule - Interpretation/Commentary in THE PERM BOOK, 2005-2006 Edition, Editor Joel Stewart.

Applying these principles to the case mentioned above Liberty Fund, Inc. v. Chao, No. 04-0915 (JDB)(and consolidated cases No. 05-142, 05-144, 05-145, 05-147, 05-148, 05-149, 05-150, 05-156, 05-258, 05-259, 05-260, 05-261, 05-262, and 05-412 ) (US District Ct. for the Dist. of Columbia, Sept. 30, 2005), we believe that TRAC factors arguably would not control the outcome, if the mandamus action simultaneously challenged the DOL's application of 212(a)(5)(A) (see p. 13). We further believe that reliance on Ganem v. Heckler may have been better placed had the statutory basis of 20 CFR 656 been challenged (see fn 8 at p. 15). In light of the serious statutory objections to 20 CFR 656, asking for simplification of the review process is akin to re-arranging the deck chairs on the Titanic (see fn 16 at p. 24). However, the plaintiffs in this case have made it somewhat easier for future litigants similarly situated in that DOL has provided the District Court with a projected timeline for adjudicating the massive DOL backlog, the failure to do which may make future courts more sympathetic (see p. 16). This case also provides a helpful list of cases arguably on point which other district courts in other circuits may find more persuasive than those cited by the District Court in justifying its decision (see p. 15).

Assuredly, this is not the last we will hear of mandamus actions against DOL. Immigration Daily will continue to keep our readers on top of this critical issue.

We welcome readers to share their opinion and ideas with us by writing to editor@ilw.com.


Focus

PERM: An Up To The Minute Course

The October 13th phone session of "PERM: An Up To The Minute Course" will cover the following topics:

  • Professionals: Additional recruitment requirements
  • Recruitment Procedures: Resumes, Interviews, Results
  • Issues likely to result in Audits
  • Supervised Recruitment/Denials/Refiling
  • Nuances from Balca
  • Review of Civil and Criminal Labor Certification Cases

The deadline to sign up is Tuesday, October 11th. For more info, including speaker bios, detailed curriculum, and registration information, please see: http://www.ilw.com/seminars/august2005.shtm. (Fax version: http://www.ilw.com/seminars/august2005.pdf.)


Article

A Lifeline To Renewal: The Demographic Impact Of Immigration At State And Local Levels
Rob Paral for The Immigration Policy Center writes "We have long known that immigration has different impacts in different states."


News

District Court Says Mandamus Relief Is Not Warranted For DOL's Labor Cert Delays
In Liberty Fund, Inc. v. Chao, No. 04-0915 (JDB)(and consolidated cases No. 05-142, 05-144, 05-145, 05-147, 05-148, 05-149, 05-150, 05-156, 05-258, 05-259, 05-260, 05-261, 05-262, and 05-412 ) (US District Ct. for the Dist. of Columbia, Sept. 30, 2005), the court said that "[We] recognize[] that, on its face, a delay of two to four years in processing applications for permanent labor certification appears unduly long and works a hardship on employers and their prospective employees. However, the competing priorities posed by the tens of thousands of other pending permanent labor certification applications and by the H-1B and H- 2B temporary certification applications, together with the good faith efforts of the agency to alleviate the delays, outweigh those considerations. Hence, after careful consideration ... the Court concludes that mandamus relief is not warranted." The court applied the six principles cited in the leading case on the issue of unreasonable delay, Telecommunications Res. and Action Ctr. v. FCC to determine whether agency delay was so unreasonable as to warrant mandamus.


Classifieds

Help Wanted: Immigration Paralegal
Kapoor & Associates seeks paralegal/legal assistant for busy family- and employment-based immigration law firm located in Midtown Atlanta, GA; Duties include a little of everything, including preparation of immigration documents, case mgmt, and client liaison; Must have a college degree, and 1-2 years of immigration experience; Must have excellent computer skills; Multi-linguals preferred. Competitive salary/benefits. Send resume with salary history to Romy Kapoor: employment@kapoorlaw.com.

Help Wanted: Immigration Attorney
Well established Midtown New York City firm has opening for attorney with experience in immigration related litigation. Firm has a large nonimmigrant practice and represents corporate and individual clients in all aspects of the immigration process. Individual will concentrate on litigation side of practice but will also be involved in nonimmigrant appeal work and I-9 review. Candidate should have 2 to 5 years experience. Salary commensurate with experience. Submit resume + cover letter in confidence to: Steven Weinberg: sweinberg@wwgw.com.

Help Wanted: Immigration Attorney
Experienced immigration attorney to work in legal department of global consulting firm. Ideal candidate will have substantial experience dealing with all issues relating to foreign nationals working in US, including regulatory filings and HR counseling. Attorney will report to Senior Immigration counsel and must be a team player with excellent written and oral communication skills. Compensation is competitive, excellent benefits. Submit resume to Sharon Lewis at: salewislegal@aol.com.

Help Wanted: Immigration Professional
Yum! Brands, Inc., the world's largest restaurant company comprised of A&W, KFC, Long John Silver's, Pizza Hut, and Taco Bell - seeks an I-9 Specialist. Primarily responsible for supervising the proper completion of I-9 Forms in the restaurants, inputting I-9 information into database and tracking expiration dates of work authorizations and visas. This position is based in Irvine, CA. Reviews all I-9 forms for compliance with federal law; inputs I-9 information into PeopleSoft and escalates any concerns to Legal Compliance Specialist. Acts as consultant to field managers regarding immigration related issues. Requirements: High school graduate, AA or Bachelor's Degree preferred; Must have Immigration experience; ability to manage multiple tasks effectively with minimal supervision; Proven customer service skills along with excellent communication skills; telephone skills must include the ability to understand and determine a resolution in a fast-paced environment; must be able to maintain confidentiality; team-oriented; ability to understand, interpret, and apply extensive laws and governmental regulations relating to immigration and employment; experience with Outlook, Microsoft Word, Excel and Internet navigation; Experience with PeopleSoft HR applications and HelpDesk tools; Bilingual is a plus. To learn more, including how to apply, see here: http://www.yumcareers.com/. (Job ID: I-9 Specialist, HR).

Help Wanted: Immigration Paralegal
Washington, D.C. - Krupin O'Brien LLC seeks experienced paralegal to support immigration practice. We seek candidates with strong academic credentials and excellent communication skills. We are looking for an experienced immigration paralegal with the ability to prioritize, organize and communicate effectively, and has the flexibility to work overtime. Paralegal will work directly with lawyers and staff in a professional environment. Must be proficient in MS Office. Email resume and cover letter to Evie Baskin: evb@krupinobrien.com.

Labor Certification Advertising/Recruitment
Computerworld is the best no-hassle solution for meeting PERM requirements. Place your 2nd IT recruitment ad in print in the IT Careers section, or online at www.Computerworldcareers.com. If you choose to use both methods, you will receive 50% off the online job posting rate. In addition, our staff will tend to your needs from ad layout and design to immediately sending tear sheets once the ad is published. Call today to place your labor certification ad in print and online. Call 1-800-762-2977 or email your ad to itcproduction@itcareers.net.


comingsNgoings

Readers can share their professional announcements (100-words or fewer at no charge), email: editor@ilw.com.

New Offices
Veronica Tunitsky wishes to announce that she has opened an office for the practice of Immigration and Family Law to be known as Law Office of Veronica Tunitsky located at: 2425 West Loop South, Suite 200, Houston, TX 77027. Telephone: 713.335.5505; Facsimile: 713.335.5506.


Letters

Readers are welcome to share their comments, email: editor@ilw.com (300-words or fewer preferred). Many letters to the Editor refer to past correspondence, available in our archives.

Dear Editor:
In response to Ali Alexander's letter to the Editor (10/07/05 ID), such an opinion can only be one from someone who has obviously never owned a business. You don't simply offer more money to attract labor when you are operating on a narrow margin and know you can't pass the costs along. You either cut your business down, find the labor you need, go out of business, or move to where the labor is located which is exactly what your theory in practice is causing in this country.

Dave Anderson
Gainesville, GA

Dear Editor:
In 2003, Immigration Daily's comment on January 6, 2003 seemed to say Tancredo's guest worker bill was good for immigration lawyers. How does Immigration Daily feel about his new bill, H.R. 3333?

Rob Sanchez
ZaZona.com


An Important disclaimer! The information provided on this page is not legal advice. Transmission of this information is not intended to create, and receipt by you does not constitute, an attorney-client relationship. Readers must not act upon any information without first seeking advice from a qualified attorney. Copyright 1999-2005 American Immigration LLC, ILW.COM. Send correspondence and articles to editor@ilw.com. Letters and articles may be edited and may be published and otherwise used in any medium. The views expressed in letters and articles do not necessarily represent the views of ILW.COM.

Publisher:  Sam Udani    Legal Editor:  Michele Kim


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