PERM And DOL's OIG
Attorneys who are faced with the puzzle as to why DOL needs to verify the existence of Fortune 500 corporations when certifying labor certs, and why the magic language must be just so on the PERM application, would do well to realize that these both flow from DOL's OIG Report on 245(i)'s impact on labor certs. The OIG at DOL continues to be active each year on labor certs, we recently discovered a March 2005 "Management Letter Report" from that organization criticising the-then San Francisco Regional Office, which we carry as a news item below. DOL's OIG has historically issued slanted reports on labor certs which have been criticized by the immigration bar (see Steve Bell "DOL’s Audit of Permanent Labor Certification Program: An Analysis" 17 Immigr. Law Rep. 86 (1998) - see also Gary Endelman's discussion of the OIG report at The Lawyer's Guide To 212(a)(5)(A): Labor Certification From 1952 To PERM). For those attorneys and their clients who are anxiously awaiting certification for applications made under 245(i) in early 2001, and which have been back-logged a remarkable 5 years and counting, despite the expenditure by ETA of hundreds of millions of taxpayer dollars in allegedly processing these, we offer below our comments on four items of the September 2004 OIG report which have bearing on all labor cert applications including PERM applications
It is to be regretted that, in the labor certification context, much energy at DOL continues to be misdirected, not just in that it does not protect US workers one jot, but that in making the labor cert program onerous for small employers, the DOL is certainly doing its bit in contributing to the growth of the undocumented population in the US. DOL would be well advised to read the actual language in the statute at 212(a)(5)(A) - the statute commands certification unless DOL can produce a US worker and can prove that such US worker is able, willing, qualified and available. There is no obligation on employers to either produce anything or prove anything. The labor cert program as we have it today, is not of Congressional design or intent, it is a figment of DOL's fancy, and apart from costing aliens a lot of money and apart from harrassing employers who want to comply with the law, achieves little else.
- Existence of employer: One of three recommendations in the OIG Report's Executive Summary reads "Verify an employer’s current in-business status prior to certification and refer to the OIG’s OLRFI any applications where the employer is determined not to be a bona fide employer" (OIG Report at iii). Clearly, this is the genesis of the cumbersome existence check process which bedevils first-time PERM applicants and first-time PERM counsel. Perhaps worse is to come, the OIG report says "It would seem appropriate for the CO to verify the employer is still in business just prior to certification" (OIG Report at 12).
- Magic Language: The Auditor's Conclusion reads, in pertinent part, "Backlog center directors must ensure that staff complies with statutes, regulations, and ETA policies, especially in regard to qualifying earned experience with the petitioning employer" (OIG Report at iv). Clearly this is the genesis of the insistence on the magic language in PERM.
- Information flow in Labor Certs between the government and the regulated community: In "scope, methodology and criteria", the OIG Report reads "In pulling the sampled applications, we identified many applications that were either cancelled or withdrawn", these applications were discarded in the report's statistical calculations (OIG Report at 23). It is because of this methodology (which is faulty as we explain below) that the report's Executive Summary states "We estimate that 69 percent of the 214,406 applications filed from January 1, 2001, through April 30, 2001, and not subsequently canceled or withdrawn, were either misrepresented, incomplete, or both." (OIG Report at ii). The reason that this methodology is faulty is as follows. The labor cert program has historically had a large quantity of informal information exchange between the government (both SWAs and Regional Offices) on the one hand and the regulated community (through the immigration bar) on the other. This information exchange was not merely through regular liaision and a large quantity of phone calls and correspondence, it was also through the cancellation or completion of applications which had been mistakenly or incompletely made. With PERM this information flow has become a more formal process where applications are either certified or denied without benefit of governmental advice until the very end of the process. The increased costs of such information flow are being borne by the employers, since employers need to undergo an expensive recruitment process before hearing from DOL through a computerized yes or no. It can thus be justly concluded that the formal information flow inbuilt in the PERM system disadvantages smaller employers who are both the largest employers of immigrants and the job engine of the US economy (unlike larger employers who have in recent decades shed many more jobs than they created).
Purpose of labor cert program: The OIG Report goes on and on about what the OIG perceives to be serious problem at the heart of the labor cert program's purpose. A few quotes will suffice to get to the gist of the OIG's problem with the program: "Almost 28 percent worked for 5 or more years prior to application. Over 46 percent worked for 1 to 4 years prior to date of application. With so much employment history with the petitioning employers, there may be a disincentive for employers to replace the aliens with qualified U.S. workers who may apply for the positions, in which case the openings are not bona fide" (OIG report at 4). "When an application is submitted for an alien worker who is already occupying the offered position, it is unlikely the employer is going to
honestly test the labor market in order to find a qualified and available U.S. worker" (OIG Report at 8). "... Section 245(i) opened the door for illegal aliens and aliens with no legal right to work in the U.S. to apply for permanent work visas" (OIG Report at 4). "... the intent is for the program to be employer driven to meet the employers’ needs, not to provide legal status to
aliens in the U.S. without legal status. We concluded that Section 245(i) changed the system, at least from January 1, 2001, through April 30, 2001, to an alien driven system; i.e., employers were not seeking foreign workers to fill jobs for which they could not find U.S. workers, illegal aliens were attempting to get legal resident alien status" (OIG Report at 5).
The labor cert program has been tragically misunderstood both by DOL and by immigrant rights advocates. Congress's stated purpose of the program is to protect US workers, however, Congress's plans have badly misfired here for two different reasons. (a) The largest competition to US workers by immigrants emanates not from any employment-based category, but from the family-based immigrants who are shielded from labor certification. Thus if Congress intends to effect any labor market controls, it would be well advised to impose these on the family categories (including immediate relatives). (b) In reality, as every immigration practitioner knows, immigrants typically use labor certification as a means to immigrate - this program has rarely been used by US employers to hire immigrants - it is just too cumbersome to use. Put another way, every family chain must begin somewhere, and it usually begins with a labor cert; seen in this light, labor certs are best understood as the foundation for all family immigration - something immigrant rights advocates are woefully ignorant of. We see no reason why section 245(i) of the INA cannot be read along with section 212(a)(5)(A) of the same statute to render the labor cert program an "alien driven system", especially since the later enactment of the 2001 extension of 245(i) should trump the older 212(a)(5)(A) provision of the statute.
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DOL's OIG Management Letter Report On Labor Certs In San Francisco
DOL's Office of Inspector General issued a memo dated March 29, 2005 saying "The San Francisco Regional Office May Be Certifying Inaccurate, Deficient, or Possibly Fraudulent Applications for Foreign Labor Certification".
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Re. Mr. Murray's letter (ID 12/27/06) please note that the United States is not officially at war. If we were officially at war, the undocumented alien could enlist.
Paul Good, Esq
Re "No Santa For Hazleton" (12/26/2006 ID), actually, Santa Claus is not an "undocumented worker". Santa enters the USA on a B-1 Visa Waiver and is inspected at the point of entry at the Peace Bridge at Buffalo New York, some time late Christmas Eve. Santa does not work in the US for a US employer and does not get paid in the US. Coming to the US just once a year, on Christmas Eve, Santa Claus represents his foreign employer in the North Pole, who has sent him on a public relations mission of kindness and love, spreading good cheer at no cost to anyone. In fact, not only does Santa Claus not get paid, he does not solicit donations by Pay Pal, as does the sponsor of Hazelton's "No Santa for Hazelton" campaign. It is a shame that the self-appointed representatives of Hazelton, PA have picked the Spirit of Christmas Good Cheer's good name to tarnish in order to solicit their dubious donations. Where will this money go? Certainly not to Santa Claus. If "No Santa for Hazelton" want to stop illegal immigration, they must encourage Congress to pass and enforce effective federal laws ... the true problem lies with the US employers who employ undocumented workers, not with Santa Claus or with the illegals. These employers, with the assistance of a lazy Congress, have for the past twenty years dangled the proverbial carrot on the stick of easy jobs, good money and opportunity for a better life, in flagrant and visible violation of US Immigration laws. "No Santa for Hazleton" should look to local employers for the resolution to their community's illegal immigration problem, for if there were no law breaking employers in and around Hazleton, their perceived "illegal Santa" would not come there.
David D. Murray, Esq.,
Newport Beach, CA
As to what shade of Blue that Democrats are in Congress will have little effect on passing an immigration Bill (see comment ID 12/27/06). After the election we see a fader Red on the GOP side.
As then entered the election they had 44% of the Latino vote at the end of the day they lost 15% of that vote or in one election 1 out of 3 Latino votes.
Democrats in Congress that may of missed the message and GOP members that don't get it will next week form leadership that do get it.
The fact that between elections 50,000 Latinos a month will turn 18 or 1,200,000 for this election to 2008 will swing more elections.
A few words in broken Spanish and chomping on a Taco is not going to get many votes, it is going to be issues. It is going to be delivering to the voters.
The good news is that out reach is not coming form the parties but form with in the community. In the off year election we marched as we said we would with pride and with the US flag. We chanted that we would vote and we did and it made a difference. With twice as long to get ready with more voters we will be marching and voting in 2008 in even bigger numbers.
We have turned out the young voters and they will be back with there friends, brothers and sisters, it will be issues and votes that will make history.
J C Connors
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