DOL Grasps At Straws
The world is laughing at DOL today. From DOL's own press release: "LawLogix
is a company that designs and sells software to businesses that utilize the
permanent labor certification program. LawLogix submitted more than 100
applications using the permanent program's online filing system in the last
year, apparently for the sole purpose of testing the parameters of the
department's electronic processing system." DOL determined that this was
improper behavior, so ... it debarred LawLogix as a PERM employer! The press
release says "Debarring this company for filing false information
demonstrates the department's ongoing commitment to safeguard the integrity
of the permanent labor certification process". Note: This debarment pertains to LawLogix as an employer - NOT as software provider.
Immigration software companies need to know the parameters of DOL's software
(for example, what is the maximum number of characters permitted in the last
name field of the ETA 9089 electronic form). DOL's PERM software is finicky,
- what's more, DOL denies PERM applications even with minor errors or typos.
We understand that all the major immigration software providers attempted to
engage DOL in discussion to ensure that their software would be compatible
with DOL's, and got the brush off from DOL. Furthermore, DOL's software is
user-unfriendly. A law firm cannot track all their cases in one place,
instead DOL's system permits tracking only on an employer-by-employer basis.
Naturally, the software companies remedy this defect, since it is impossible
for a government agency to become a writer of software for all its users.
Recognizing this, many government agencies have published xml standards,
permitting 3rd party vendors to write software compatible with that of the
agency. A notable example is the IRS, the result is easy tax form filing for
millions of people using software like Quickbooks, Money, etc. Writing
standards takes resources, which DOL may not have the budget for. In this
situation the only reasonable course for a software vendor is to set up an
account and test, which is exactly what LawLogix did. And DOL thinks this is
improper, and issues a press release! What does one make of this - should
one laugh or cry?! (Laugh because DOL is inadvertently endorsing LawLogix's
thorough testing procedures, or cry because prospective customers will
erroneously believe that they cannot use LawLogix software to file PERM
DOL issued yet another press release about yet another law firm: "Last year,
the department began auditing applications filed by Cohen & Grigsby as a
result of information indicating the firm may have improperly advised its
clients regarding the recruitment of U.S. workers. Because of concerns
identified in the audits, the department is requiring supervised recruitment
for certain applications filed by Cohen & Grigsby." Contradicting itself on
the same page, the press release says that DOL had "begun placing pending
permanent labor certification applications filed by the Cohen & Grigsby law
firm into department supervised recruitment." Which is it - certain
applications or all pending applications? Can DOL not issue a clear press
release? Or is it intentionally obfuscating? And why is a press release
necessary? Is every employer or attorney to be placed into supervised
recruitment in the future to be a subject of a future press release? Is
character assassination by press release a secret provision within the PERM
rule for those who incur DOL's wrath?
In fairness, we must compliment a part of DOL's edicts today. In the latter
press release, DOL says "The department's regulations require employers to
"test" the labor market for U.S. workers in a manner that is ... fair".
Finally, DOL gets some of its own regulations right - the recruitment
mandated under 20 CFR 656 is a labor market test - it is not intended to be
a recruitment process culminating in the hiring of a US worker. However, we stand by our long-stated position that nothing in 212(a)(5)(A) permits DOL to shove a labor market test down employers' throats. In other words, 20CFR656 - in both pre-PERM and PERM versions - is ultra vires.
Lets take all the three issues above together, and see what pattern is
painted thereby. First, DOL debars an immigration software provider ... as an employer! Second,
DOL places some of a law firm's PERM applications into supervised
recruitment. Third, DOL admits PERM recruitment is only a test. The pattern
we discern is that this is DOL in crisis control mode, after beginning its attack on the bar and the misstep of taking on the immigration bar's largest firm. DOL will likely throw
in the towel shortly on almost all the Fragomen applications that it is
currently auditing (a few will make their way to BALCA or the federal
courts). As it prepares for a retreat from the major effort involved in auditing thousands of applications, it is growling all the way on minor issues and
hoping no one notices that it has only gums, no teeth. DOL would do better
to realize that there is no graceful way out here. When you are in a hole,
the first rule is to stop digging! Then fess up, say you are sorry, and get
on with your job. Perhaps we are overly optimistic, but we believe that even
DOL will learn these truths soon. If not, Congress will have to step in, and
perhaps it is already doing so as we write this.
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Latest In Consular Processing
Greg Siskind, et al. share recent citations from this recently concluded seminar series.
Bloggings: July 10, 2008
Greg Siskind shares the latest entries to his blog.
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DOL Initiates Supervised Recruitment Of PERM Applications By A Law Firm
DOL announced that it has begun placing pending permanent labor certification applications filed by the Cohen & Grigsby law firm into department-supervised recruitment.
DOL Debars Immigration Software Company As Employer
DOL announced that it has debarred LawLogix Group Inc. from filing applications for permanent labor certification for its own employees.
USCIS Revises Instructions On Biometric Changes For Re-Entry Permits And Refugee Travel Documents
USCIS issued revised instructions for USCIS Form I-131, Application for Travel Document.
USCIS Continues Suspension Of Premium Processing Service
For Religious Workers
USCIS announced that
the suspension of premium processing service for religious worker (R-1) nonimmigrant visa
petitions will continue at least until January 7, 2009.
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Law Students Rush To Meet Needs In Booming Field Of Immigration
A subject that three decades ago was a secondary, technical field delegated to adjunct professors is booming at law schools nationwide.
Immigration Comes To Fore For McCain, Obama
After months of treading softly on immigration, Barack Obama put the issue center stage Tuesday when he accused John McCain of setting aside years of support for a guest-worker program to appease conservatives and further his presidential ambition.
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Fiorella Granda has joined Valentini Law Offices, PLLC as a legal assistant. She
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I am concerned about the millions of undocumented immigrants who are living in the shadows of our society, but I am more concerned about the plight of the LPRs and citizens who have unconscionably long waits to bring family members into the US (07/09/08 ID Comment). I feel the same way about the LPR and citizen families that are destroyed by the retroactive removal grounds and the other Draconian measures of IIRIRA. I don’t think it makes sense to say that an immigration reform bill is comprehensive if it doesn’t fix the IIRIRA problems.
This (07/09/08 ID Comment) has been going on for over many decades except that since 9/11 it has gotten worse. Some of the spouses and children are retain because the priority date may regress to an ungodly date that immigration did not have this kind of sequence. Let say the priority date came on the month of May 2008 to July 1, 2000; however the month of June 2000 the priority date may regress to June 20 1989. It is unreal how this priority date can dance of the tune of two steps forward and three steps backward. There is only a wait until immigration will forward the priority date to where it was on May 2000 and this could take months or perhaps a year and half. Why?
No one knows the answer. Yes, immigrants are really in purgatory.
Gladys C. Farris
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