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Immigration Daily June 5, 2008
Previous Issues
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DOL Puts Foot In Mouth

In an unprecedented action by DOL, all PERM applications involving attorneys at the Fragomen law firm are being audited. This punitive action is directed at the largest filer of PERM cases in the country. See the ETA news release issued June 2nd here and a DOL Information Paper issued June 4th here. (For the cognoscenti, the significance of the dates and the organizations is as follows: ETA committed itself publicly to this action on 6/2, and in some shape or form, ETA came under attack subsequently. In the ensuing fracas, ETA convinced its parent organization to back it, and DOL did so on 6/4. In other words, the political action behind the scenes has escalated over the last few days from the level of Assistant Secretary to cabinet-level.)

The ETA and DOL documents are replete with misstatements, misconstructions and outright whoppers. Rather than deconstructing the documents bit-by-bit, we take a look at the central issues in the matter below (for the sake of simplicity, the two documents are combined herebelow for reference as one, viz., DOL/ETA). There are three major points: (1) What is the proper role of an attorney in counseling an employer during the labor cert recruiting process? (2) Why is DOL doing this and what will happen in the coming weeks and months? (3) Where do we go from here? Where does the bar go? Where does the US worker go? In analysing the three issues above, lets get one thing out of the way at the outset. DOL/ETA claims that "several recruitment forms drafted by some Fragomen attorneys instructed their clients that 'After interview, should any of the applicants appear to be qualified for the position, please contact a Fragomen attorney immediately to further discuss the candidate's background as it relates to the requirements stated for said position,' or some variation thereof." In our analysis, we are leaving aside the awkwardness/inelegance of the language quoted, and the very real possibility that this quote was taken out of context (also left aside is the specific issue of facts - none of which in any event have been found yet, that ostensibly is what the audit process will unearth - in any organization of over a thousand people, some mistakes are bound to occur - whether that organization is DOL itself or a law firm).

(1) What is the proper role of an attorney in counseling an employer during the labor cert recruiting process?

DOL/ETA says:

... the firm improperly instructed clients who filed permanent labor certification applications to contact their attorney before hiring apparently qualified U.S. workers ... The Department's regulations specifically prohibit an [] immigration attorney [] from participating in considering the qualifications of U.S. workers ... there is no legitimate reason to consult with immigration attorneys before hiring apparently qualified U.S. workers who have responded to recruitment required by the permanent labor certification program ... The Department's rule safeguards against the use of attorneys to find reasons not to hire U.S. workers that the employer would, but for the attorney's involvement, deem qualified ... The rule applies only to consideration of particular applicants, and does not bar employers from seeking general advice on the meaning of "qualified" in the context of a labor certification application.

While it may be news to DOL, DOL's unique concept of "minimally qualified" is unfathomable to employers out here in the real world. Attorneys struggle mightily, and usually without success, to explain DOL's unique gobbeldygook concerning the proper standards of conducting a labor cert recruitment. The tried-and-true standards used by employers throughout America - motivation, personality, attitude, and a host of subjective factors - are not permitted, and attorneys have to explain, in gruesome detail applied to particular resume after particular resume, how to apply DOL's Through-the-Looking-Glass procedures. Two illustrative examples suffice: "No, you may not consider a US worker over-qualified" (this completely mystifies employers); "Yes, I know you like this US worker without a Bachelor's degree on subjective grounds because she has a great personality, however you stated that a Bachelor's degree for this position was an objective minimum requirement, do you want to change the requirement and refile a new application for PERM without the degree and hire this US worker in a newly created position, or do you want to lose the alien? (this doctrine of "diversion" in DOL-speak also completely mystifies employers). Outside of the immigration context, Employment Lawyers counsel employers every day on proper recruiting procedures applied to specific applicants to assist the employers in following the proper legal standards (e.g. anti-discrimination provisions in the Americans with Disabilities Act). Perhaps DOL believes that in all such applicant-specific cases, lawyers should give only "general advice", and in particular cases, the employers should be left high and dry by their counsel. The PERM rule at 20 CFR 656.10(b)(2)(i) says attorneys may not "interview or consider" US workers, it does NOT (and cannot) prohibit attorneys from counseling employers about the proper legal procedure and standards to apply to particular applicants.

(2) Why is DOL doing this and what will happen in the coming weeks and months?

Within the last year, DOL/ETA re-structured its operations at its offices in Atlanta and Chicago, and also promulgated a so-called "fraud rule" covering substitutions, purchase/sale of PERM applications, etc. During the moving around of the various H2B/H1B/PERM, etc units, it is likely that an "anti-fraud" unit was created. Instead of going after the countless UPL operators who prey on immigrants in many parts of the country, this unit has now found a convenient target in the nation's largest immigration law practice. However, this is an issue larger than immigration law. The employment bar will likely view this as of concern, and we hope that some of our readers in that bar (and within ABA) will get involved in expressing that concern. Employer groups including the Society for Human Resource Management, the US Chamber of Commerce, the National Association of Manufacturers, etc will also likely view this stripping by DOL of their right to counsel with alarm. It is further entirely possible that the Department of Commerce will view this (correctly) as a threat to American competitiveness and suggest to DOL to pull in its horns. Knowing how things work in Washington, all the above will help, but it may not settle the matter. To settle the matter, it is likely that Congress will get involved, in the months to come. It is quite possible that DOL did not see all this coming when it decided to give its anti-fraud staff a workout.

(3) Where do we go from here? Where does the bar go? Where does the US worker go?

DOL/ETA says:

Where an employer does not normally involve immigration attorneys in its hiring process, there is no legitimate reason to consult with immigration attorneys before hiring apparently qualified U.S. workers who have responded to recruitment required by the permanent labor certification program ... The rule applies only to consideration of particular applicants, and does not bar employers from seeking general advice on the meaning of "qualified" in the context of a labor certification application.

The real issues here are not one specific firm, and not even the proper role of immigration lawyers. The real issue is that DOL took the gloves off a year ago, and is determined to attack the bar. The anti-fraud rule illegally interfered with the attorney-client relationship, and these audits by DOL are more steps in the same direction. To its credit, AILF sought plaintiffs to litigate DOL's illegal rule, unfortunately, no one stepped forward. In a similar situation in the 1980s, attorney Dale Schwarz was targetted by federal agents with a wire on (he was fully exonerated subsequently) also on a labor cert matter. At that time, a young lawyer named Ira Kurzban stepped forward to lead the bar on this important issue. His election to the highest elective position available to an AILA member (President-Elect, he ran by petition) marked the first and so-far only time such an event occurred in the bar. Similar leadership is once again needed.

DOL/ETA says:

"The department's decision to further investigate these applications will help ensure the integrity of the permanent labor certification process and ultimately protect job opportunities for American workers," said Gregory F. Jacob, solicitor of labor. "The department takes seriously its responsibility to ensure that American workers have access to jobs they are qualified and willing to do ... "

If DOL harrasses large employers enough, they will simply move the jobs overseas. Far from ensuring that American workers have access to jobs, DOL's actions, if continued along this trajectory, will only ensure that American jobs are destroyed. Moving the jobs overseas will be an inconvenience for large employers for sure, but the impact on the lives of US workers will be catastrophic.

As all the above has surely made clear, this is hardly the last we have heard of the matter. Further developments are to be expected, stay tuned to Immigration Daily!

We welcome readers to share their opinion and ideas with us by writing to


Family-Based Immigration: Nuts And Bolts

Our new book, Family-Based Immigration: Nuts & Bolts; Editor: Charles Wheeler of the Catholic Legal Immigration Network, Inc. (CLINIC) features:

++ Chapters: Immediate Relatives And The Preference System, Overview Of The Application Process For Permanent Residence, Adjustment Of Status, Consular Processing, Immigrating Through Marriage, Grounds Of Inadmissibility, Waivers Of Inadmissibility, Affidavit Of Support, Self-Petitions For Abused Spouses And Children, & Ethics

++ 35 Appendices include: Sample Request For Criminal History, Documenting I-130 Petitions, Sample Motion To Reinstate I-130, Consular Processing Instruction Package, Consular Processing Appointment Package, Suggested Evidence Of Bona Fide Marriage, I-601 Waiver Packet Based On INA 212(h) (Criminal Convictions), I-601 Waiver Packet Based On INA 212(i) (Fraud Or Misrepresentation), I-601 Waiver Packet Based On INA 212(a)(9) (B)(v) (Unlawful Presence), & I-212, Request For Permission To Reapply For Admission After Deportation

++ CD-ROM includes: relevant regulatory sections from 8 CFR, 22 CFR, etc., many forms from USCIS, DOS, SSA & IRS, significant statutory provisions, key BIA & Federal cases, selected USCIS memos, public health service documents, etc.

For more info on Family-Based Immigration: Nuts & Bolts, and to order, For the fax order form, see here.


Child Status Protection Act (CSPA) Review Check List
Joseph B. De Mott and Thomas Esparza, Jr write "Presented as a source to my colleagues and friends."

Bloggings: June 5, 2008
Greg Siskind shares the latest entries to his blog.

To submit an Article for consideration, write to


DOL Releases Information Paper On Fragomen Labor Certs Audit
DOL released an information paper answering questions on the audit of permanent labor certification applications filed by attorneys at Fragomen, Del Rey, Bernsen & Loewy LLP.

DHS Issues FAQs And Fact Sheet On ESTA
DHS released FAQs and a fact sheet on Electronic System For Travel Authorization. See here for the FAQs, and see here for the fact sheet.


Help Wanted: Immigration Paralegal
Newark, NJ and New York, NY - Proskauer Rose LLP, one of the nation's largest law firms, seeks immigration paralegal. Must have a minimum three to five years experience with non-immigrant and immigrant casework (HIB, LIA, LIB, TN, E, O1, PERM, EB1, etc.), generating and completing forms, entering data into a case management system, and performing research. Bachelors Degree preferred. Excellent English writing skills and attention to detail required. Please send resumes to Angela Houghton via email to

Case Management Technology
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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


Immigration Group Receives Death, Bomb Threats
Recent threats of violence directed at a local immigrant advocacy group are now under investigation in Maryland.

AWC Art Professor Exhibits Work In Chicago
A series of clay sculptures that earned an Arizona Western College professor first-place honors in a Texas art exhibition is now featured in an immigration-themed art show at Loyola University, Chicago.


Readers can share their professional announcements (100-words or fewer at no charge), email: 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 Event - Washington, DC
June 19 - The Progress & Freedom Foundation and the National Chamber Foundation (NCF) will co-host a book event featuring Jason Riley, author of a newly published book on immigration reform. "Immigration Reform: Work to be Done" will explore the highly divisive issue of immigration and its relation to America's competitiveness in the global economy. For more info, see:


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

Dear Editor:
Roger Algase's letter's (06/03/08 ID) criticism of Mr. Roberts' letter (06/02/08 ID) is slightly off-base, and unfortunately gives Mr. Roberts' letters some room to rationally continue their fantasism about the Southern threat. Aztlan is not a myth--it is, however close. Like people who focus on the supposedly dire threat neo-Nazis and organized racists pose to the Republic, those terrified of Aztlan overemphasize the importance of a few kooks and get into an excessive dither. Yes, young punks do indeed publish all sorts of horrid insurrectionist plans. many of them even kill people, but not in meaningful furtherance of said plans, but in furtherance of their own criminality and social pathology. Even members of the incredibly racist-sounding group La Raza generally are oblivious to the worst ideological flourishes, or use them to assuage guilt over having escaped the social and economic backwardness of Mexico. Like most kids who inherit money from their parents and feel bad about it, most of these people get over it too. I do not mean to minimize problems posed to assimilation by a large population of semi-legal residents and those sections of "the helping professions" whose livelihood depends upon maintaining their segregation from normal America, but keeping those problems in perspective would be helpful. Impressively, Mr. Algase's letter (06/04/08 ID), recognizes the existence of "empty rhetoric" about "retaking" what had been Mexico's underdeveloped, lawless empty quarter before it was incorporated into these United States. Mr. Roberts' letter's sidling up to paranoid vicious anti-Semites in defending some of the points from the Protocols is similarly, probably more empty, and we can hardly ask his letters to calm down without treating racists "from the other side" as beyond the Pale (pun intended) too, or, better yet, explaining why some of their fears are unfounded.

Honza Prchal

Dear Editor:
In response to Mr. Algase's letter (06/04/08 ID): Whether a forgery or not, "Protocols" does specify the goal of the end of nation hegemony, borders and other barriers in favor of a global NWO "plantation" with modern masters and slaves. What better method to accomplish this transition than by making a mockery of traditional, limited and selective immigration which can be beneficial and advocating, excusing or ignoring excessive or open entry which is destructive? Constant rants of prejudice, intolerance, racist, and hate certainly move this process along. Many groups and individuals today are ignorantly effecting or knowingly pursuing these goals, here and in other Nations. The Atzlan Reconquista movement, like any invasion, depends upon numbers, most of which are not vocal advocate leaders, but they certainly don't mind the separatist culture that follows them. The Cuban city of Little Havana in Miami is now 94% Hispanic and speak Spanish, while in the 50's the County was 80% white. The same is going on in CA and other states. What is "equal" about this? The winners in wars or conflicts are determined by who occupies the land. The topic of egalitarianism is very complex. While we may all be created equal in the eyes of God or the Law, the negative factors seem to arise in the Economic area. Socialism and Communism are extreme forms of this doctrine with material equality for all which requires coercive mechanisms to redistribute the wealth. See: "Egalitarianism as a Revolt Against Nature" by Murray Rothbard, and: "The Illusion of Egalitarianism" by John Kekes. Rothbard also wrote: "The Ethics of Liberty" which is the highest, endearing value upon which the unique, fragile experiment upon which America is based or should I say was?

Jim Roberts

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Publisher:  Sam Udani    Legal Editor:  Michele Kim                        ISSN:   1930-062X