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Immigration Daily August 12, 2008
Previous Issues
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Comment

Fragomen Sues DOL - Two Documents

Fragomen, the country's largest immigration law firm, filed a lawsuit late on Friday, August 8th against DOL, in the ongoing saga of DOL's unprecedented punitive actions against the bar for following long-established practice in labor certs, without any attempt at rule-making, prior announcement or cogent explanation. We reproduce below, two documents in the litigation, the Complaint in Fragomen v Chao (1:08-cv-01387, D.C. DC., 08/08/08) (hereinafter referred to as the "Complaint") and the Motion for Preliminary Injunction in Fragomen v Chao (1:08-cv-01387, D.C. DC., 08/08/08) (hereinafter referred to as the "Motion"); brief summaries of the documents also appear below (see the "News" section below for both of the above).

In addition to the summaries which appear below in the News section, we note the following items of interest.

  • DOL audited 2,500+ labor certs under the unprecedented DOL action of early June 2008 (from the Complaint). This number may well be the limit of DOL's auditing capability for an entire fiscal year. What this means is that all audited PERM cases filed by any employer through any attorney (or even without an attorney) will likely be delayed a minimum of one year, over and above the already existing delays in audited cases that were significant even before DOL lost its senses in pursuing its recent course of action. Further, the Fragomen firm filed 6,500 labor cert applications in the last 12 months (from the Declaration of Michael Patrick, part of the Motion). What this means is that if DOL persists in its current course of action (assuming arguendo that the Federal Courts don't soon enjoin DOL from its unlawful behavior), hounding the Fragomen firm alone is likely beyond DOL's capability. Absent significant new funds from Congress, DOL is unlikely to be able to sustain its current policy beyond another year or so. It is unlikely that Congress will be keen to fund such ham-handed and ill-advised enforcement, especially when DOL's actions destroy job opportunities for US workers.
  • It appears the Solicitor of Labor (equivalent to a General Counsel, but much more senior to a General Counsel, in DOL's hierarchy) actually believes that Uncle Sam ought to be able to compel a US employer to hire US workers during the labor cert process. How he arrived at this extra-statutory opinion is not clear since there is no requirement in the statute or the regulations that an employer hire US workers during the labor cert process, even if such worker is deemed minimally qualified. Nevertheless, the compliant alleges that the Solicitor of Labor told Fragomen on May 19, 2008, that he could not understand why an employer would want or need to speak with an attorney after forming an opinion that a US worker was qualified for the purposes of the labor cert process. Perhaps the Solicitor should have read In re Robinson (2007-PER-00084, BALCA, 10/15/07) where BALCA advised "given the legal requirements of the labor certification process, [the employer] might consider engaging an immigration attorney to assist her in understanding and complying with the regulations" (this case and text is quoted in the Complaint). DOL appears to want to compel employers to become lawyers by barring them from legal counsel during the labor cert recruiting process - per the Complaint: "If enforced, [the DOL's] new edicts would prohibit an employer's attorney from informing the employer that his lay opinion on worker qualification under the regulations is legally incorrect."

Brief notes on the lawsuit have already appeared on blogs at ILW.COM. See here for Greg Siskind's comments including a statement by Fragomen's lawyer (himself a former Solicitor of Labor) and here for a brief comment by The Labor Cert Guru, Joel Stewart. Stay tuned to Immigration Daily for more analysis of this lawsuit and developments in PERM.

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


Focus

Deadline Is Tuesday, August 12th For PERM With Joel Stewart

ILW.COM is pleased to announce a new 3-part seminar series " PERM With Joel Stewart" featuring a long list of distinguished speakers including: David Ware, Ann Kanter, Michelle Skole, David Lazaar, Rohit Turkhud, Ed Litwin, Sherry Neal, Arthur Amdur, Robert Banta, Richard Tasoff, Larry Rudnick, Sofia Zneimer, Lorna Burgess, and David Pakula. The curriculum is as follows:

FIRST Phone Session on August 14: Preparing the application

  • New Regulations on Prevailing Wage Request
  • Basics of PERM Process
  • Review of PERM Definitions
  • Analysis of Current SVP and SOC Problems
  • How to O*Net Occupations and Job Zone Levels
  • Job Descriptions and Requirements
  • Preparing PERM for 2nd Preference
SECOND Phone Session on September 24: Audit Proofing the Application
  • New 9089 Form: Step by Step
  • Restrictive Requirements
  • Audit Proofing a Perm Case
  • Schedule A Health Workers, Exceptional Aliens & Artists
  • Special Recruitment for College & University Procedures
  • Prohibition on Payments to Attorneys
  • Current Ethical Issues in Recruitment Process
THIRD Phone Session on October 22: Final Determinations
  • Reconsideration and Appeal.
  • Supervised Recruitment.
  • Validity and Invalidation.
  • Fraud and Misrepresentation
  • Revocation of Approved Cases
  • Summary of Recent BALCA Decisions
  • Update on Federal Litigation
The deadline to sign up is Tuesday, August 12th. For more info, including speaker bios, detailed curriculum, and registration information, please see: http://www.ilw.com/seminars/julyA2008.shtm. (Fax version: http://www.ilw.com/seminars/julyA2008.pdf).


Article

Exhaustion Of Exhausted Remedies: The 5th Circuit Black Hole
John Wheat Gibson writes "The position of the Fifth Circuit is thus plainly at odds not only with the APA, but also with broader principles of separation of powers."

The Myth Of Cultural Imperialism
Robert K. Rauth, Jr. for the Foundation for Economic Education writes "While condemnations of America’s spreading influence are usually limited to the cultural sphere, a surprisingly large chunk of the opposition stems from the economic risks American firms pose to local inefficient enterprises."

To submit an Article for consideration, write to editor@ilw.com.


News

Fragomen Seeks Injunctive Relief In Complaint Against DOL
In the Complaint in Fragomen v Chao (1:08-cv-01387, D.C. DC., 08/08/08), the plaintiff seeks to "invalidate, rescind and permanently enjoin" DOL for actions which plaintiff alleges are in excess of DOL's statutory authority, which violate the employer's constitutional right to counsel, which force attorneys to breach ethical duties to clients, which violate plaintiff's constitutional right to pursue a vocation, which depart from decades of settled practice in the immigration bar, and which violate the APA. Plaintiff seeks injunctive relief. Exhibits A, B and C of the complaint reproduce three forms used by the Fragomen firm to guide clients through the labor cert recruiting process, these were provided by the firm to DOL during audits which preceded DOL's unprecedented action in early June 2008 (mandating audits in each and every case filed by the Fragomen firm). The complaint alleges that DOL threatened to institute debarment proceedings against the Fragomen firm if information sought by DOL on advice rendered by Fragomen to its clients was not submitted to DOL. Exhibit G of the complaint reproduces an agreement dated July 16, 2008 between Fragomen and DOL which plaintiff alleges it was compelled to enter into to prevent all future cases from being audited until a court rules on the legality of DOL's actions. The complaint also alleges that DOL's actions violate Fragomen's Fifth Amendment right to engage in its chosen business. (Large document, 63 pages).

Fragomen Motion For Preliminary Injunction Argues DOL Exceeds Statutory Authority
In the Motion for Preliminary Injunction in Fragomen v Chao (1:08-cv-01387, D.C. DC., 08/08/08), the Plaintiffs put forth a detailed argument in favor of their prayer for relief. Pages 12 and 13 of the Motion explain "[b]ecause the regulation of the attorney-client relationship is the traditional province of the states, and because the statute lacks any statement, much less a clear one, authorizing such an extraordinary intrusion, the [DOL's] interpretation of [20CFR656.10(b)(2)] is in excess of statutory jurisdiction or authority, in violation of the APA." This argument is further developed from pages 13 through 17. The Motion points out that the 20CFR656.10(b)(1) "contemplates a role for attorneys throughout the labor cert process." The motion says "The [DOL's] actions have caused incalculable harm to the reputation for probity that Fragomen has maintained since 1951." (Large document, 82 pages).


Classifieds

Help Wanted: Immigration Attorney
Lee's Summit, Missouri - USCIS Office of the Chief Counsel (OCC) seeks experienced attorney for the position of of Service Center Counsel at the National Benefits Center (NBC). Responsibilities include, but are not limited to, providing legal advice to the NBC personnel on issues involving immigration related adjudications, inadmissibility and deportability grounds, and national security. Service Center Counsel are also responsible for writing visa appeal briefs and providing litigation support to the U.S. Attorney's office on cases arising from Service Center adjudications. The Service Center Counsel will be directly supervised by the Deputy Chief Service Center Counsel and the Chief of the Service Center Counsel Division. Applicants must possess a JD degree, be an active member of the bar (any jurisdiction) by the entry on duty date. For full details enter COU-CIS-2008-0009 here. Submissions for this announcement are preferred by email (all attached documents must be in MS Word or Adobe Acrobat PDF format) to W. Douglas Craig, Chief Service Center Counsel Division, at William.Craig@dhs.gov. Contact Information: Sheila Fisher. Phone: 949-389-3687. Or write: Office of the Chief Service Center Counsel, USCIS, 101 West Congress Parkway, Suite 560, Chicago, IL 60605.

Help Wanted: Immigration Paralegals
Reston, VA - Feeling undervalued? Goel & Anderson, LLC, seeks experienced business immigration paralegals to provide professional services to its clientele, composed of Fortune 1000 corporations and leading multinational firms. Our compensation and benefits package is commensurate with top-tier law firms, with no billable hour requirement. We offer family-friendly work hours (with little/no OT required), attorneys who are easy to work with, business-casual dress policy, fully paid health/dental/vision insurance premiums, 401(K) plan with generous match, free parking, and occasional additional perks (this year, our entire staff, along with spouses/significant others, was treated to a paid vacation at the Atlantis resort in the Bahamas). Ideal candidates will have 4-6 years of experience as a business immigration paralegal with a top tier law firm or in-house corporate immigration team, coupled with undergraduate degree, excellent organizational and communication skills (both written and oral), and ability to work independently. Please apply with resume, cover letter, + salary req. to careers@goellaw.com or fax to (703) 796-9232. All submissions kept confidential. No phone calls please.

Help Wanted: Immigration Paralegal
New York, NY - A downtown Manhattan immigration law office seeks associate/senior paralegal. Prepare NIV & IV/consular applications. Experience with O-1 visas for artists preferred. Handle billing, calendar deadlines, client queries. Good writing skills essential. Use ImmPro, Access, Excel. Must be able to multi-task. Own office. P/T possible. Japanese language skills a plus. Email resume to lawyersinternational@gmail.com.

PERM Services
At Jon Byk Advertising, Inc., we provide a wide range of services that will help fulfill your PERM recruitment requirements quickly, cost-effectively, and efficiently. With 15+ years of experience working with one of the nation's largest immigration law firms, our customer service is unparalleled. We understand the importance of meeting DOL requirements with regards to ad content, media selection, ad documentation (tear-sheets), and deadlines. We will locate publications that meet DOL and EDD requirements by geographic region, provide upfront pricing, and timely deliver original tear-sheets for all ads (print, online or broadcast). Our experience in recruitment solutions means valuable time saved for you. For more info and a free quote, contact Mya Le at 310-476-3012 or myale@bykadvertising.com.

Border And Consular Assistance
For visa application processing at US-Canada border or at US Consulate in Montreal, Toronto, Ottawa and/or Quebec, please contact Charles J. Leamy at Ogilvy Renault LLP. Mr. Leamy is a Montreal-based AILA member with more than 15 years experience in U.S. immigration law. Ogilvy Renault s Business Immigration team will accompany your client and provide representation at border/consular posts. We have wide-ranging expertise with border/consular issues including all TN visas, L visas and waiver of inadmissibility cases. For more information: Charles J. Leamy at Ogilvy Renault LLP; Montreal, QC; (514) 847-6103; cleamy@ogilvyrenault.com


Headlines

Immigration Rights - The Next Struggle?
"How have immigration and the changing demographics of cities such as Los Angeles affected the civil rights discussion?"

Deport-Yourself Plan Isn't Going To Work
It looks like the [ICE] agency is so overwhelmed with its hunting expedition that it wants immigrants to aid in their own deportation.

Appeals Judges Decry Immigration Case 'Tsunami'
Two federal appeals judge and the chair of the Board of Immigration Appeal painted a bleak picture on Sunday of a growing crisis in the adjudication of immigration cases at the administrative and appeals levels.

Exhibition Looks Into the World of Immigration
Rather than rehashing familiar imagery and old, circular debates, "Laberinto de Miradas" explores some of the factors that are driving global immigration from Tijuana to Morocco.


comingsNgoings

Readers can share their professional announcements (100-words or fewer at no charge), email: editor@ilw.com. Readers interested in learning about featuring your event or conference in Immigration Daily, see here. To feature your newsletter in Immigration Daily, see here.

Immigration Book
Metropolitan Migrants: The Migration of Urban Mexicans to the US. By Ruben Hernandez-Leon. University of California Press, 272 pp. Hardcover, ISBN: 0520256735, $55.00. http://www.amazon.com/exec/obidos/ASIN/0520256735/.


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:
Yes, the Chinese exclusion laws were racist. These were pushed by a heavily Irish-American constituency on the West Coast mostly as a way to restrict labor competition, the option of legally harassing blacks, Latin Americans, Italians or the non-Irish generally being impractical in California for most of that time. I thought Mr. Algase's letter (08/11/08 ID) was talking about immigration restrictionism in general during those periods period and my letter'spoint was that racism was often a more socially acceptable cover for the generally unpopular (prior to the 1930s at any rate) tactic of restricting entry into protected labour markets. Doing it by race was more practical than doing it by seniority. Nevertheless, mea culpa. My letter missed your letter's main thrust of attack and went off on a tangent.

Honza Prchal, Esq.
Birmingham, AL

Dear Editor:
Regarding the immigrant carrying the US flag at the Olympics, this is another inspiring immigrant personal story. However, let us not forget the USCIS officers who went to Kakuma camp to process the refugees there, and the officers here in the U.S. who adjudicated his adjustment of status and citizenship applications to make this event become reality.

Areyes

Dear Editor:
With regards to "harewoods" letter (08/11/08 ID), I agree. I am an American citizen and I might add, very embarrassed to being one when it comes to how we treat people from other countries coming here to live. USCIS doesnt have a clue. I've never seen such a poorly run "business". No-one knows their jobs, hence all the 10 year long screw ups. I have a client 35 years ago went through the same problems and sometimes even finishes my sentence, because she has first hand "USCIS"experience 35 years ago. Nothing has changed, why?

Mo Cunningham


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 1995- 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                        ISSN:   1930-062X


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