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Norm Matloff—The DOL Starts To Enforce The Law, But It`s All For Show
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July 11, 2008, 10:00 PM
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From Norm Matloff’s H-1B/L-1/offshoring e-newsletter.

Norm Matloff writes:

In the enclosed press release, DOL announced that it has initiated a "supervised recruitment" action with Cohen & Grigsby, the immigration law firm of "TubeGate" fame. This is the firm whose videos on YouTube showed employers how to legally avoid hiring Americans when they are sponsoring a foreign worker for a green card. DOL now will be giving Cohen & Grigsby`s green card applications extra scrutiny.[U.S. Department of Labor Initiates Supervised Recruitment of Permanent Labor Certification Applications Filed by Immigration Law Firm, July 8, 2008 4:40 PM EDT]

This comes on the heels of DOL`s having initiated an audit of Fragomen, the nation`s largest immigration law firm, also on alleged irregularities in the green card process.

As I`ve said before, I believe that both firms have been complying with the law and regulations. What they`ve been doing is ugly but legal. This of course illustrates my frequent theme that the employers and immigration lawyers don`t have to cheat, as the gaping loopholes make it easy to circumvent the spirit of the law while staying within the letter of the law.

Why, then, is the DOL going after these two firms? My guess is that it`s for show, to divert attention from the real issues, which are the loopholes. This has been a favorite tactic of the industry lobbyists.

On the other hand, it could be an issue of pride. Though the DOL has clearly been politicized, there are some there who don`t view their jobs as tools of Big Business. I can imagine them having the feeling that the employers and lawyers are humiliating them and making a mockery of their jobs, causing an intense desire among some in DOL to take action to show that DOL has some backbone.

I`m also enclosing an editorial on DOL`s action in Immigration Daily, a publication by ILW for immigration lawyers. ILW has been highly critical of—"hostile toward" would be a more accurate description—DOL for its action with Fragomen, and now is equally outraged by the new sanction on Cohen & Grigsby. ILW`s view of the two cases is just as interesting as the sanctions themselves, because ILW admits that, as it stated in an earlier editorial on the Fragomen case, the law and regulations as written do NOT protect American workers.[DOL Grasps At Straws July 10, 2008]

Both of the linked articles, one from DOL and the other from ILW, point out something often overlooked in the H-1B/green card debate: The law itself (INA 212(a)(5)(A)) states that no alien may be admitted to the U.S. for employment unless the Sec. of Labor finds that there is a labor shortage in the field. DOL must then write regulations to implement that law (the reference to "20 CFR 656" below). Those regs require the employer who wishes to sponsor a foreigner for a green card to advertise the job etc. That already creates a huge loophole, as there is no requirement that the employer really try to fill the job with an American. (Ironically, the law for H-1B-dependent employers does have such a requirement.) See the point? The law requires the Sec. of Labor to insure that Americans get hiring priority, but neither the law nor the regs directly require the employer to make a good faith effort to hire an American; the only requirement is indirect, by directing the employer to place newspaper ads and so on. This loophole is subtle but huge. There are many other loopholes as well, which is why I believe that Cohen & Grigsby did comply with the law and regs.

Again, these regs have huge loopholes—placed there under pressure from the immigration lawyers, mind you—but ILW contends that DOL shouldn`t be doing even that much.

Once again, the real import of these two actions is not that the law firms violated green card law, but rather that they legally exploited very bad features of that law. I hope that Congress keeps this in mind as it comes under increasing pressure to liberalize the employment-based green card programs. The Fragomen and Cohen & Grigsby cases, plus ILW`s correct admission that the law and regs do not protect American workers, should be seen by Congress as clear evidence that the green card programs should NOT be expanded. I hope they realize this and have the courage to resist the industry`s pressure. I`ll have more to say about this, including some interesting new information on the Fragomen case, in the next day or two.

Norm