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Angelo Paparelli on Dysfunctional Government

Immigration Dereliction -- The Perils of Hilda and Her PERM

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Hilda Solis -- the Secretary of Labor -- hails proudly from immigrant stock. She understands the suffering immigrants endure for a chance at the American Dream. She also knows the importance of ensuring that U.S. workers are protected and treated fairly. I wonder how she continues to tolerate the abuse of American and immigrant workers, and of U.S. employers, perpetrated in her name under the Labor Department's PERM program.

An acronym whose official name sounds at once Orwellian, shocking and bureaucratic, PERM stands for Program Electronic Review Management. It is the exclusive method that the Department of Labor (DOL) devised to eliminate a backlog of several years in a longstanding program of labor-market testing (known as a "labor certification"). With a labor certification in hand, a foreign citizen officially completes the first step in an elaborate and lengthy process culminating, if successful, in the grant of an employment-based green card.

The Immigration and Nationality Act (INA) -- at § 212(a)(5) -- says in bass-ackward and double-negative fashion that no foreign worker is admissible to the U.S. as a permanent resident unless the Secretary of Labor determines that no U.S. worker is willing, able, available and qualified to fill a job that a U.S.-based employer wants the foreigner to fill. Thus, § 212(a)(5) says that the hopeful foreign worker is inadmissible to the U.S. unless Secretary Solis is satisfied that at least one statutorily suitable worker in all of America cannot be found.

This law, as written, puts the duty of action and decision squarely on Ms. Solis's shoulder. It imposes no burden on the foreign worker, on any U.S. worker willing to apply for the sponsored job, or on the employer. The perverse ingenuity of DOL bureaucrats, however, led the agency long ago to craft a method (now embodied in the PERM program) that unjustly transfers most of the onus of action under § 212(a)(5) from the DOL to the employer, to the foreign national and -- most cruelly -- to hapless U.S. workers who are duped into applying for a job that in most instances is already filled.

Under PERM and its predecessors, the DOL has illegally foisted on each of these parties various duties that fall squarely within its area of agency expertise, duties that it could do better and more quickly itself:

  • The employer is commanded to prove a negative, i.e., that no statutorily suitable worker is available. The employer must also show that the particular job is open in good faith to any U.S. worker who meets the employer's minimum requirements. (The good faith requirement in practice eliminates virtually all foreign entrepreneurs who set up their own U.S. companies since the DOL presumes that every entrepreneur will act in bad faith to secure a labor certification.)

  • The foreign worker is ordered to prove by prior education, training or experience, that she satisfies the employer's minimum job requirements. (The DOL's minimum-job-requirements rule effectively bans merit-based hiring since any lesser-skilled U.S. worker who surfaces will cause a more-qualified foreign candidate to be denied a green card.)

  • The U.S. worker -- treated the most shabbily by DOL of all -- is induced to act, unknowingly, as a naïve stooge. Under the PERM (DOL-work-avoidance) scheme, U.S. workers are "punk'd" into applying for jobs that in most cases they have no chance of filling. They are used -- at DOL insistence -- as guinea pigs merely as a means for the employer to prove to Secretary Solis's satisfaction that a good faith test of the labor market has been conducted. The DOL does not require (indeed, it lacks legal authority to demand) that the employer hire any minimally qualified U.S. worker who applies for the job. All that happens if the employer "fails" the labor market "test" (meaning that a suitable worker applied who met minimum requirements of the job) is that the foreign worker will not be allowed to move to the next stage of the employment-based green card process under sponsorship of this employer at this time.

The bureaucratic charade known as PERM would be unnecessary if Secretary Solis were to instruct her minions to perform their statutory duties. If DOL were to identify more jobs for which the agency believes there are insufficient numbers of U.S. workers -- so-called "shortage occupations" that satisfy § 212(a)(5) -- the agency's illegal burden-shifting to private parties would no longer be necessary. DOL defenders have claimed, however, that identifying shortage occupations is impossible. If that is so, then how did the agency determine under its Schedule A authority that jobs for physical therapists and registered nurses go begging for applicants and thus are exempt from the labor-market testing requirements?  Congress certainly believes that DOL can and should identify additional shortage occupations since it gave DOL authority in 1990 (which the agency has not used) to expand the shortage list under the Labor Market Information Pilot program.

I suspect the reason for the Labor Department's labor-avoidant reluctance to ferret out and declare shortage occupations is that announcing such shortages inevitably produces political heat. At a time of historically high unemployment, DOL likely finds unwelcome the prospect of being in the middle of a Dodge Ball game where U.S. worker advocates, labor unions, employers, business organizations, proponents of immigration and the media -- each disagreeing with some of the Labor Department's worker-shortage declarations -- pitch painful spheres at the agency. Fear of a shellacking, however, is no excuse. Secretary Solis, together with the DOL technocrats who devised PERM, cannot continue to shirk the legal duties they voluntarily accepted when taking their oaths of office.

DOL cannot morph statutory duties that the agency finds distasteful into extra-legal mandates on employers and aspiring green-card holders while perpetuating a con-game that gulls employed and unemployed U.S. workers into applying for jobs which they have little hope of getting.

* * * * *

Readers of this already too-lengthy post, just like silent film audiences viewing The Perils of Pauline, must wait till next time for our cliffhanger to end and find out what happens in the final episode of this electrifying and shocking bureaucratic drama, The Perils of Hilda and Her PERM.

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  1. Skilled Immigrant's Avatar
    I completely agree, Angelo. This is especially in light of Ms. Solis' own article on Huffington Post in which she backs the DREAM Act: Thanks, but what about the many hardworking, educated, talented people from abroad whom the DOL makes jump through the ridiculous flaming hoops process you detailed above? Hopefully she's taking them into consideration too and will make the process more friendly to those who came here legally to contribute to the country's future.
  2. Mike Jones's Avatar
    It's funny how the author chooses to ignore that Secretary Solis, by statute is limited to what she is allowed to do. It's as if she could simply order her "minion", who are Certifying Officers at DOL, to perform some arbitrary act as if they are personal employees or personal servants. The author ignores the fact that these Certifying Officers are bound by a statutory requirement set up by a former Congress and signed into law by a former President of the United States. The author, by stating the Secretary of DOL should throw this statutory requirement out the window appears to be advocating anarchy. What else should politically appointed heads of agencies ignore? How about if the Director of USCIS ignores his oath to uphold the Constitution and the laws of the United States and orders his minion to automatically adjust the status of all the individuals who are in the country illegally to permanent resident status. No better yet, let's just skip the LPR phase and move them straight to holding the status of United States citizens.

    The author also ignores that the DOL PERM program eliminated a vast amount of fraud that immigration attorneys were either committing themselves or that they were enabling through leapfrogging labor certifications from one alien to another, one to two decades after the labor certification was initially filed with DOL. The author's view is irresponsible and sounds a little like whining; perhaps Mr. Paparelli is upset that Mrs. Solis has not moved the DOL drastically to the left with his liking. I can't wait for the follow-up posting.

    I've posted this same comment on the author's blog site, but the author must not be monitoring the site because it's been a full week now and no comments are posted.
  3. Angelo Paparelli's Avatar
    Mr. Jones:

    Thank you for your response, however misinformed. I do not favor anarchy, a leftward (or rightward) movement of the DOL or immigration fraud. I believe in the rule of law. The law, in particular, that Ms. Solis is oath-bound to follow, is Immigration and Nationality Act (INA) ? 212(a)(5). That law, as my two posts have suggested, does not authorize the labor certification process that the DOL contrived out of thin air and, under Ms. Solis, has perpetuated. Rather, the statute places the onus on the Labor Secretary to determine labor shortages. INA ? 212(a)(5) does not justify or mandate the significant burdens that the PERM process imposes on U.S. and foreign workers and American employers.

    Moreover, if the DOL were truly concerned about fraud, it would have (when it created PERM) barred non-lawyer "agents" and "notarios" from representing parties in labor certification cases. Six years after the PERM final rule was enacted, the DOL has done nothing to put immigration agents and consultants out of business.

    If there is a statute authorizing the labor certification process, then Mr. Jones, I urge you to identify it.

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