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Greg Siskind on Immigration Law and Policy

IN DEFENSE OF FRAGOMEN

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While some overly competitive immigration lawyers might derive some pleasure from the recent news that Fragomen, the nation's largest immigration law firm, is having all of its PERM green card cases audited by the Department of Labor, wiser folks realize that the Department of Labor is launching phase two of a broad attack on the right to representation by legal counsel and they've chosen the nation's biggest law firm in order to send a message of intimidation to the immigration bar. Others have done a good job laying out the issues. ILW has a special commentary today on the case. And the American Immigration Lawyers Association has written a scathing letter taking DOL for making new rules by press release and for acting recklessly in issuing a news release with potentially disastrous repercusions before it has concluded an investigation of the law firm. A copy of the letter can be found here (especially when the theory under which the investigation is being launched seems so dubious). Download aila_fragomen_letter.pdf



Finally, the National Law Journal covers the Fragomen story.



I suppose if there is a silver lining in the news it is that the DOL was dumb enough to take on a firm that has the resources to fight back.

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Comments

  1. beppenyc's Avatar
    Hi Greg,
    i don`t know what ot post it, but this could be something for your blog.
    http://ap.google.com/article/ALeqM5iOIcHEl16blo275HL1hqJHO0gTKwD913Q9BG0
  2. Vivek's Avatar
    Greg, The Oklahoma Anti-immigration Law has faced setbacks in Federal court and portions of it have been labeled as against the constitution.
  3. Greg Siskind's Avatar
    Thanks for posting it Beppe. It should be a wake up call for all those who assume Americans will line up to do the work of the typical immigrant.
  4. Greg Siskind's Avatar
    About to post on it.
  5. Grace's Avatar
    The National Law Journal article is only accessible to subscribers - do you know where one might find it elsewhere?
  6. EB3's Avatar
    On a related note, how is the Emigra v. Fragomen restraint of trade suit going for them?
  7. Greg Siskind's Avatar
    Don't know, but I really want to be careful to limit my discussions to just the implications that the DOL suit has for the public and the legal profession. I'll leave the chatter on what's going on at other firms offline or to the Above the Law blog.
  8. Greg Siskind's Avatar
    Sorry Grace, didn't realize it wasn't public (I'm a subscriber). If you email me privately, I'll email it to you.
  9. ylee94's Avatar
    Greg,

    Do you know what is going on in Atlanta National Processing Center for PERM? My case got in audit last November and it has not be processed. It fact, it seems like Atlanta processing center has not processing any audited case for last few months.

  10. gchunter's Avatar
    Hi,

    The DOL bulletin states that all permanent labor certifications filed by FDBL are being audited but the blog above and the links referred all state that FDBL "is having all of its PERM green card cases audited"

    So, where does one get the information that only PERM cases are bring audited since DOL bulletin does not say that?
  11. Sean's Avatar
    First, this "right to counsel" business is a red herring. You can't just make up a right to counsel. Giddeon v. Wainright established a right to counsel in criminal matters. There are some states that have a right to counsel in civil matters on a limited basis. There is no federal right to counsel at all. The Sixth Amendment merely specifies a right to counsel in criminal proceedings and says nothing about civil proceedings.

    Second, the entire labor certification process is premised on employers being LEGITIMATELY UNABLE TO FIND QUALIFIED US WORKERS. AILA is playing with fire here in the midst of an unprecedented US downturn. It wouldn't take much at all, should unemployment rise significantly, to get Congress to shut off the employment-based immigrant visa program entirely. An argument can be made for allowing only temporary workers under the H-1B program because the availability of US workers for a position can change, I'm sure, over six years.

    The problem is that the labor certification process has become in many ways a method employers use to reward useful and productive employees. The obvious stink here is that if an employer was legitimately seeking qualified workers, it wouldn't need to ask an attorney to provide specific advice about how to reject some applicants for the job. The goal in a legitimate process would be to find a qualified US worker, not to figure out how not to find one.

    It is a little embarrassing to the profession when an entity like AILA makes up a legal right to counsel in civil matters and then doesn't cite a case or regulation. It's like getting a letter from some guy on the corner who hasn't read the Constitution.
    It's wise to think about the long term consequences of advocating increased attorney involvement in recruitment. It's going to look very bad and increase pressure on Congress to rewrite the rules.
  12. Greg Siskind's Avatar
    Sean - I wish it were online, but there's an excellent article with the following citation:

    Right to Counsel
    The Right to Counsel in Immigration Matters
    by Malea Kiblan and Diane Uchimiya
    Cite as: 2 Immigration & Nationality Law Handbook 376 (2003-04 ed.)

    It really refutes quite clearly your assumption that there is no right to counsel here. If you're seriously interested in this, I'd visit a decent law library in your area to read it.
  13. TonyS's Avatar
    After what Fragomen did to me, I hope they burn in hell.
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