DOL DECLARES WAR ON FRAGOMEN

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. 

Comments

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[Greg Siskind]

I believe DOL is averaging around 15 months for audited cases.

[Charles]

I am a Fragomen client, my application has been selected for audit back in Jan. So far I havent heard anything as to a time frame on when I made hear from DOL. Fragomen is not assisting at all in keeping us up to date with what they did or where we all stand. Any help as to what is timeframe for a PERM audit?

[Anonymous]

I read the article on why Fragomen is being audited, and Fragomen's response, below:

www.ilw.com/immigdaily/news/2008,0630-fragomen.pdf

In my case, Fragomen was so minimally involved in the recruitment process for my green card application that my HR rep did not know what the recruitment requrements were (time frames, placement requirements, etc). It took her 1 year and she still did not complete all of the requirements within the required time frames, and we had to re-do it. If anything, the DOL should be concerned that the attorneys did not provide enough guidance rather than too much.

[Anonymous]

Hi Greg, the company that my husband works for uses Fragomen as their law firm. My husband's I140 was just recently approved...is there a possibility that approved cases like my husband's can still be audited or revoked?

[NB]

I am a Fragomen client suffering from a year-long PERM process and DOL audit (and still waiting). I am really fed up of the entire thing - I see others getting DOL certifications within 3 weeks and I have been waiting more than 7 months. I don't know what Fragomen did that provoked this investigation, but I am sure that there may be other attorneys that do the same. Their clients are getting certified and I am left waiting because of the name of my company's law firm. This focus on Fragomen does not make me any less desired by my company or less qualified than others receiving certifications. I never understood why it is so common to award green cards to family-based applicants who end up taking jobs from US workers anyways, but then they have so many barriers to allow a perhaps much more educated and desired person from another country a green card. Stifling competition for jobs only succeeds in inhibiting progress. In my opinion, the entire system is discouraging, demotivating and unfair.

[Anonymous]

No matter what, the immigrant worker is the sufferer in this political game. The very fact is initiating a PERM is to offer an immigrant worker a permanent job (in nature), even though nothing is permanent. The DOL conducting audit is only a waste of everyone's time and screwing up the immigrant worker. Any ways now a days the companies are global, there is nothing wrong hiring a foreign worker irrespective of what recuriting effort corporates picks up. If not in US, they can hire in other countries where laws are reasonable than following complex US immigration laws. Bottom line is it is neither a justice to the US worker or the foriegn worker.

[andre]

Just wanted to ask two questions:

Will already approved PERMS be audited? Will this affect people with pending I140/I485 with approved PERM?

[Greg Siskind]

Phil - I'd prefer not to engage in gossip, particularly when it comes to smearing the good name of a law firm that has essentially been indicted by press release, something that I think is extremely inappropriate.

[Phil]

Have subpoenas, indictments been obtained for any Fragomen attorneys, foreign workers, or any human resources personnel at Fragomen clients? How can we find out? FOIA? I had heard this investigation also involves the Department of Justice and CIS, and that any GCs or I140 approvals obtained by this fraudulent activity will be canceled. From the tone of things, it looks like there will at least be criminal charges against attorneys.

[EB3It]

It sure can. USCIS will immediately revoke any petitions based on Fragomen LCs revoked by Labor. LPR status granted pursuant to a revoked Fragomen LC will be rescinded under 246. Count on it.

[Jose Garcia]

This question may be a bit outside of this discussion, but I will ask it any way. Can a Labor Certification be revoked after the employee has received his/her Permanent Resident Card? and if so, what would happen to his/her immigration status?

[Chris]

I feel sorry for them - even if they get cleared it's still bad press that will hurt them - this kind of stuff goes right to the bottom line.

[Sam]

Looks like a DOL witch hunt - the PERM regulations are not "real world" recruiting when you have the DOL lumping jobs into generic categories and predefined "Job Zones" - this is how businesses operate in the real world? I'm no FDBL fan, and Lord knows they've pulled some shifty moves on competitors, but unless they were doing the actual recruiting, advising clients on dealing with DOL's cockeyed regulatory scheme is well within their right.

[BeeDee]

"I forgot to mention: if PERM has been approved for you by the Dol, they won't audit it, or go back and look at it again."

A PERM application can be revoked for fraud at any time after it has been approved. This rule was the cause of much heartburn when PERM was first proposed. Until the DOL or Fragomen clarifies, we won't know if they are going back to look at approved applications.

I found a good description of audit procedures here:

http://www.hilglaw.com/services/servicesperm.htm

[A Nony Mouse]

Oops, that last one was mine. :3

I forgot to mention: if PERM has been approved for you by the Dol, they won't audit it, or go back and look at it again.

@paul: From what I understand, the DoL carry out an audit when they suspect that a company isn't being as honest as it should be in regards to why they want to hire foreign employees.

I believe this involves the DoL coming in and making sure that the company in question was forthright in declaring such things as prevailing wages, and that they've sufficiently attempted to recruit for the position, and so on.

Basically, the DoL say: We don't trust that you've done this honestly, so we're going to do it for you.

[Greg Siskind]

FYI folks. I've just removed a not very kind post about the Fragomen firm. I was reluctant to post the press release because I didn't want to be seen as taking a shot at a competitor law firm. But this IS news and it has an impact on all PERM cases across the country. Let's keep this civil please.

[paul]

Excuse my ignorance, but what does "auditing" mean exactly? Reopening and reviewing old and approved applications, or verifying the requirements for new ones more strictly (i.e. requesting more evidence, etc.)? If old applications are looked at , how far back does that go?

[A Nony Mouse]

It sounds like immigration lawyers were involved in the PERM process somehow - perhaps in engineering things to ensure that American citizens couldn't practically apply for the job in question?

As the recruitment process is all supposed to be internal, and between the company and the DoL, I can see why the inclusion of an immigration attorney *before* PERM is approved could cause some alarm bells to ring.

Of course, just as equally, one could say that a company consulting an immigration attorney about the possibility feasibility of hiring a foreign employee to fill a gap in your labor hole is entirely within reason, even if only to ask what complications and difficulties you might be presented with.

Hell, I know first hand that many smaller companies have no freaking idea that getting a H-1B or a Green Card for a potential employee is so difficult. When I was interviewed for a job two years ago, the CEO of that company thought all I'd have to do was tell the British Government I was leaving and then by on my merry way.

Two years of hardship later...

I'm just hypothesizing, though. I'm sure more details will be forthcoming.

There's a freaking huge problem with the Greencard via Employment route anyhow: namely, by the time the desired employee is actually *to* get a Green Card, the job they applied for and the company they want to work for has gone through three or four years of change.

Le sigh.

The cynical part of me wants to complain that the DoL and the USCIS should solve their own problems first before going after other people.

The realist in me understands that people are just doing their jobs, though, and that there probably *are* people in the DoL and USCIS working on fixing things anyhow without it requiring every resource they have.

I seem to have gone off on a tangent, though. My apologies. :)