Immigration Law

DOL DECLARES WAR ON FRAGOMEN

By Greg Siskind

I'm analyzing the legal issues in the press release below and will have more to say shortly, though a quick read leaves me scratching my head trying to figure out exactly what Fragomen is alleged to have done that would violate DOL regulations:

U.S. Department of Labor auditing all permanent labor certification applications filed by major immigration law firm

Department acts to protect employment opportunities for American workers

WASHINGTON ? The U.S. Department of Labor today announced that it has begun auditing all permanent labor certification applications filed by attorneys at Fragomen, Del Rey, Bernsen & Loewy LLP.  The department has information indicating that in at least some cases the firm improperly instructed clients who filed permanent labor certification applications to contact their attorney before hiring apparently qualified U.S. workers.  The audits will determine which, if any, applications should be denied or placed into department-supervised recruitment because of improper attorney involvement in the consideration of U.S. worker applicants.

?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 and that their wages and working conditions are not adversely affected by the hiring of foreign workers.?

The permanent labor certification process, established by the Immigration and Nationality Act, allows employers to sponsor aliens for permanent residence (secure a ?green card?) to fill positions for which no qualified, willing and available U.S. workers can be found.  The department?s regulations set forth detailed procedures by which an employer seeking certification must demonstrate that no qualified U.S. workers can be located.

The department?s regulations specifically prohibit an employer?s immigration attorney or agent from participating in considering the qualifications of U.S. workers who apply for positions for which certification is sought, unless the attorney is normally involved in the employer?s routine hiring process.  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.

In 2004, the department adopted reforms streamlining the permanent labor certification process by moving to an attestation-based system.  Audits of applications are one of the major deterrents used by the department to ensure program integrity. 

Full post as published by Greg Siskind's Blog on June 02, 2008 (boomark / email).