All bark No bite? DOL makes nice with Fragomen

People were expecting a war, but it turned out to be just a small skirmish, but everyone shaking hands and making nice. Back in June 2008, the Department of Labor initiated mass audit into cases handled by one of the biggest immigration law firms in US Fragomen, Del Rey, Bernsen & Loewy, on charges that these firms constructively help their clients hire immigrant workers over local candidates by providing consultation quite early into the hiring process. Fragomen fought back, arguing that they do not advise their clients to hire immigrant workers and early consultation is provided simply to help the employers comply with the guidelines.

Now, not even two months into this, DOL seems to have laid down arms by dropping its decision to audit the cases handled by the law firm. While the department has not issued a clear statement regarding the case with Fragomen, the rather vague statement issued on its website on September 17, 2008 points to that conclusion. The statement reads:

The Department has been presented with evidence indicating that prior to its recent audits, many immigration attorneys believed that the Department’s rule regarding consideration of U.S. workers did not apply to them unless they represented not only the employer seeking the labor certification, but also the alien for whom the certification was being sought. That interpretation is incorrect, as the Department’s recently issued PERM program clarifying guidance makes clear. Nevertheless, the Department will apply the requirements of the consideration rule as interpreted by its recent guidance only to labor certification applications the recruitment for which was begun after August 29, 2008, the date on which the Department’s final guidance was issued. All pending audits triggered exclusively by consideration rule concerns are therefore being released and will be processed in accordance with their original filing date.

Consequently, this means that the 2,500 green card cases handled by Fragomen will now be processed on schedule.

Background

Before we move into the background of the legal battle, let’s take a look at the battlefield that is “green card immigration”. Immigrant workers coming into the United Stated on temporary work visa’s can stay “temporarily” for up to six years at a stretch. A company does have the option of “sponsoring” such a worker for green cards which then will allow them to remain in the country indefinitely.  However, the company can avail that privilege only if it can certify to the Labor Department that a suitable candidate was not found in the U.S. and the foreign worker’s skill is absolutely necessary.

This of course requires a whole slew of paper work, complying with the DOL regulations.  And the Department of Labor is inclined to believe that employers often consult the Immigration firms in order to show that the local candidates do not qualify as per the DOL’s stipulated qualifications and to build the proper paperwork to certify to this. The Department has thereby issued a new interpretation of its regulation to restrict attorney from advising client’s at this juncture. This new interpretation led the Department to put one of the Nations largest immigration law firms under the scanner.

On June 2, 2008 Fragomen, Del Rey, Bernsen & Loewy, a New York based immigration was declared to be under audit by the Labor Department, on charges that the firm was being partial in its assistance to clients who are sponsoring green cards for foreign workers.

On August 8, 2008 the firm retaliated with a lawsuit, claiming that the DOL regulations violate clients’ constitutional rights to seek the advice of counsel. The “regulations” in question are the Labor Department rules that require an employer can sponsor a foreign worker for a green card only after if has certified to the Labor Department that a suitable U.S. worker could not be found to fill the position. But the Labor Dept. also restricts the lawyers from advising employers on DOL’s requirement for such candidates for it fears that employers may use that to their advantage to eliminate otherwise qualified American candidates. The Department had defended that its interpretation on the rules are reasonable and should not be considered un-constitutional.

Fragomen however argues that the companies require legal advice even during the hiring process simply to navigate through the legal system, whether foreign workers are involved or not. The firm’s chairman has defended its action stating that “we do not tell our clients whom to hire or not hire.” Furthermore, the firm has also suggested in its lawsuit that the DOL’s audit has damaged its reputation and resulted in loss of customers, thereby damaging its competitive edge on the business.

The American Immigration Lawyers Association (AILA) supported the Firm in its suit by stating that such an audit will scare away companies from seeking legal help to navigate through the DOL’s green card process and end up causing a trail of incorrect paperwork and wrongly filed cases, adding to the woe of the system at best.

Conclusion

As it stands now, DOL will go ahead with the processing of the green card cases dated before August 28, 2008 as usual. However, how the new interpretation of the rules will apply to the cases filed after that date is yet to be seen. Fragomen representatives have indicated that the firm is willing to work with the department to draw an interpretation to the rules that is favorable to both parties. However, DOL has not indicated to any such move on their part. It looks like battle might be over but the war has just began!