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Greg Siskind on Immigration Law and Policy

LABOR DEPARTMENT ABOUT TO CURTAIL IMMIGRANTS' RIGHT TO COUNSEL

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The Department of Labor recently issued a final rule that takes effect July 16th and makes substantial changes to the labor certification system for employment-based green card applications. According to the Labor Department, the labor certification process is controlled by the employer. Therefore, under the new rule, the employer is required to pay 100% of the lawyers' fees in a labor certification case.



From a strictly factual standpoint, DOL is wrong. While employers are the official petitioner, the process directly affects the immigration status of the worker. For example, the filing of a labor certification determines the priority date that allows someone to file an adjustment of status petition (which is filed by the worker, not the employer). That is why immigration lawyers are always considered to have a dual representation role and we are forbidden by law from taking actions that are contrary to the interest of either employer or worker without getting the adversely affected party's waiver.



Why should you care about this? It is not a big deal if your employer already covers the fees. But many of you are in other kinds of situations such as the following:



- you don't trust the lawyer your employer uses, but your employer will only let you use a different lawyer if you pay the tab;



- your employer is a non-profit or otherwise financially unable to hire an immigration lawyer and the only way you can proceed with green card filing is if you pay;



- your employer wants to file using an inexperienced non-lawyer employee to handle the process and has no problem with you hiring and paying for a lawyer;



- your employer's immigration department has limited resources and there is a long waiting time required before they'll begin work on the case, but the employer will let you hire an outside lawyer to start work right away (this is common for universities).



This rule interferes with the Sixth Amendment right to counsel as well as the Tenth Amendment's bar on taking powers away from the states (the rule arguably interferes with the state bars' role in regulating lawyer-client relationships). And there are other problems as well.



That's why the American Immigration Law Foundation is interested in suing the Labor Department on this issue. If you are in one of the categories above  (or are in some other way damaged by the rule), AILF is looking for plaintiffs for a class action suit. You will not have to pay a penny to participate in the suit and you'll be doing a major favor not just for yourself, but many immigrants around the country who are potentially seriously damaged by this change in the rules. If you are interested in participating, please contact your immigration lawyer right away or send  me an email at gsiskind@visalaw.com and I'll get you the AILF plaintiff questionnaire.

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Comments

  1. legal's Avatar
    Greg,

    Maybe unrelated but I have a similar question regarding legal counsel hired by the employer. I'm interested in joining the AILF lawsuit about the July bulletin fiasco as a plaintiff, but the lawyers who deal with all my documents were hired by my employer. In every communication with them, they insert a blanket statement that they actually represent my employer and not me, and that there is no attorney-client relationship between me and them. They are helpful in answering questions but in general they have tried to discourage me from even investigating the possibility of joining the AILF lawsuit. Their stance has been that the lawsuit has extremely small chance of success in my case (even though my documents were received by USCIS on July 2 in the morning before the bulletin revision). Do I have a choice in the matter of whether I join the lawsuit or not? Do they have the right to prevent me from doing so, e.g. by refusing to provide me with delivery receipts or the wrongfully rejected I-485 package? What are my alternatives?
  2. Greg Siskind's Avatar
    An adjustment of status is your petition, not your employer's, so I don't see the reason why you could not sue. Your employer still has some control, of course, since they filed the underlying labor certification and I-140 so if they forbid it, you probably should listen.

    You probably will still benefit from the AILF suit anyway if you filed the petition and it was denied even if you're not listed as a plaintiff so I wouldn't worry too much about it. Also, I've heard that AILF is in pretty good shape on getting plaintiffs for that suit. But they are really, really in need of plaintiffs on the DOL suit.
  3. R. Lawson's Avatar
    Now you are starting to see why corporations should not be sponsoring H-1b workers. Their interests aren't always the interests of the H-1b workers.

    If H-1b workers - approved through a merit based system - could sponsor themselves (instead of corporations) many of the problems we see today would vanish.

    If you want to go after the DOL for breaking the rules, more power to you. I'd rather be working with people on green cards than H-1bs - at least they can participate in the free labor market without so much fear of their sponsoring employer.
  4. Greg Siskind's Avatar
    Roy - I think people might have guessed by now, but don't you think you should disclose to readers who you are and what positions on immigration you advocate?
  5. R. Lawson's Avatar
    Sure Greg. It isn't a secret - I am a software engineer and labor advocate.

    I support the IEEE-USA's position on the H-1b visa. That position opposes the increase of the H-1b visa until disparities can be resolved. That position also favors a green card over employer sponsored visas. The IEEE is the largest engineering organization in the United States, and the IEEE-USA is the American branch of the organization.

    I am also a former board member of the Programmers Guild. My position while on the board was to expand membership - to include all people working in the United States (immigrants and American). That wasn't the popular position, but it was mine.

    I'm sure some would like to dismiss me as anti-immigrant - but that is far from the truth. I am decidely pro-immigrant. I think my positions on the issues reflect that. I have argued consitantly for green cards instead of the H-1b visa.
  6. Amit J's Avatar
    Roy,

    Technical fixes to the green card program will eliminate any incentive H1B employees have to stick with an employer. These fixes are -

    1. Permanently guaranteeing the priority date as long as the labor certification is approved.

    2. Requiring labor certifications to be processed within 120 days, failing which the certification is presumed to be granted.

    3. Requiring I-140 and I-485 applications to be processed within 120 days each. If the I-485 is pending at the end of 120 days for reasons other than national security, the employee can walk into the local USCIS office and get a green card stamped.

    None of these fixes need radical overhaul of immigration system. #1 and #2 will alone remove incentive the employee has to stick with a bad employer.

    Can you see yourself supporting these types of technical fixes?
  7. Jack in the Box's Avatar
    I have a question, not sure if anyone can answer. What is a H1B who has worked for a Fortune 3 company in different capacities (in different business segments) for about 8 years to do if the company fails to file for his Green Card even though its in the Offer Letter in the final 2 years of the H1B which are also the last 2 years of the H1B (h1B expires after the 2 years end).

    Question asked by many is, why the company didnt sponsor Green Card earlier in the 5 years I worked for them. The answer is, I was travelling overseas and the division I travelled for had a different offer letter which did not have this promise.

    Company cits current market environment in its inability to file for a petitition.

    Are there any cases in the past that are similar to mine where the immigrant worker was awarded damages?

    Thanks.
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