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.
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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).
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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.
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.
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?
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