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Norm Matloff: The Problem With Visas Isn`t Fraud, It`s Loopholes
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September 19, 2008, 08:22 AM
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From Norm Matloff’s H-1B/L-1/offshoring e-newsletter.

Norm Matloff writes:

Many of you will recall DOL`s announcement last June that it was suspending approvals of green card applications submitted by Fragomen, Del Rey, Bernsen & Loewy, LLP, the nation`s largest immigration law firm, pending the results of an audit. DOL stated that it had reason to believe that the firm had been involved in a client`s hiring process to an extent contrary to DOL regulations. See my postings on this here, here, here, and here.

At the time I predicted that there was nothing that DOL could do, as Fragomen appeared to be operating within the law and regs. I stated, as I always do, that THE MAIN PROBLEM WITH H-1B AND EMPLOYMENT-BASED (EB) GREEN CARDS IS THE LOOPHOLES, NOT ILLEGAL BEHAVIOR.

I have written part of the last sentence above in all-caps form because it is so often forgotten, including by activists who are pushing for tightening of the laws regarding foreign workers. It is especially important right now, because (sorry to shout again) CONGRESS IS CURRENTLY CONSIDERING MAJOR EXPANSION OF THE EB GREEN CARD PROGRAMS YET HAS NOT INCLUDED ANY REFORM OF THE PROCESS IN THE LEGISLATION. This is especially sad in view of the fact that, according to my sources, many people in Congress are well aware of "TubeGate," the YouTube videos made by an immigration law firm for their clients, in which they show how to exploit the numerous gaping loopholes in green card law. More on Congress below.

Let me stress again that THE IMPORTANCE OF THE FRAGOMEN CASE IS NOT THAT A "BIG FISH" HAS BEEN CAUGHT VIOLATING THE LAW—WHICH IT HASN`T—BUT RATHER THAT THE ACTIONS OF FRAGOMEN ILLUSTRATE THE LOOPHOLE-RIDDEN NATURE OF THE LAW. As noted in my earlier postings, prominent Fragomen clients such as Cisco Systems have been placing outrageously deceptive newspaper job ads stating that only U.S. citizens and permanent residents may respond, when in fact the job "opening" is already filled by a foreign worker that Cisco is sponsoring for a green card. Again, all of this is fully legal. (By the way, Cisco`s ads don`t actually say there is a job opening; they merely say that Cisco is "accepting resumes"!)

There is now an update on the Fragomen case, in a statement issued by DOL on August 29, which you can view here. [PDF]

Here DOL affirms that an employer has the right to check with legal counsel in rejecting U.S. applicants for a job the employer intends to fill with an EB-green card sponsoree. DOL also reasserts that the lawyer must not get so involved in this process that the lawyer is screening the applicant pool, etc.

Though this document does not quite absolve Fragomen, the language suggests that DOL will in fact do so. And for its part, Fragomen appears to be conducting business as usual, as I will explain below, suggesting that the firm has already been informally notified that it will come out will a basically clean bill of health. Again, given the loophole-ridden laws and regulations, Fragomen SHOULD indeed be absolved of wrongdoing, sad to say.

As many of you know, HP just announced a layoff of 25,000 employees, and yet they still appear to be sponsoring foreign workers for green cards—with Fragomen as legal counsel. (See the details at http://www.claytoncramer.com) The job ads still say that only Americans can submit resumes, and they are still having Americans submit resumes to a Fragomen attorney, one Cindy Jen. Ms. Jen`s bonafides may be viewed here. 

There is a small bit of irony here, in that another Jen is one of the "stars" of the YouTube videos. Attorney Jennifer Pack, called "Jen" in the videos, is shown explaining various loopholes employers can use to avoid hiring Americans in green card cases, and to underpay foreign workers in both green card and H-1B cases, fully legally.

HP reportedly has removed some of the job postings, but the fact is that even with all the negative publicity arising from the DOL audit announcement last June, Fragomen is conducting business as usual—outrageously deceptive job ads implying that the jobs are open only to Americans, routing Americans` resumes through immigration lawyers and so on.

Here is another piece of business as usual: One of the job ads states:

MINIMUM JOB REQUIREMENTS: Master`s or foreign degree equivalent in Computer Science, Computer Engineering, Electrical Engineering, or related field plus two (2) years of experience in job offered, or as a systems engineer, software design engineer, system analyst, or related occupation. Employer will accept an unrelated M.S. degree plus an add`l one (1) year of related work experience. SPECIAL SKILLS REQUIREMENTS: C/C++; Visual Studio; Embedded Programming; NT platform; Unix platform; Web Programming (Java and JavaScript); RDBMS database; Clearcase; VSS.

This is a great case study in what`s wrong with EB green card law and regs.

First, note that phrase "two (2) years of experience in job offered." Obviously, they`re referring to the foreign national currently occupying the job! This language is commonly seen in tech job ads, a dead giveaway to the knowing that the job is already taken and is being used to technically comply with the law but actually flout its intent.

And just as obviously, they are not about to replace this foreign worker if a qualified American applicant is found. Part of this, of course, is that they can pay the foreign worker less and so on (again, LEGALLY, due to loopholes), but also they don`t want to disrupt work on the project by replacing personnel. This latter point has been made repeatedly by immigration lawyers objecting to the Fragomen audit (again, see links ot my e-newsletter above), and though the employers` concerns in this regard may be understandable, the fact remains that LOOPHOLES ARE ALLOWING THE INTENT OF THE LAW TO BE CIRCUMVENTED. As DOL points out in its August 29 memo,

The Department of Labor has a statutory responsibility to ensure that no foreign worker (or "alien") is admitted for permanent residence based upon an offer of employment absent a finding that there are not sufficient U.S. workers who are able, willing, qualified and available for the work to be undertaken...

Note again (Cramer in his blog seems to be unaware of this) that except for a minuscule special case, employers are NOT required to give Americans priority over foreign workers when the employers hire H-1Bs. The ONLY point in the process at which the law gives Americans hiring priority is for green cards, and as you can see, that law is worthless because of loopholes.

Note too the piling on of skills requirements in the job ad above. The foreign worker currently performing that job is likely the only one in the world having that particular combination of skills, thus ensuring that no American applicant will "qualify" for the job.

Bottom line: Since Congress is currently considering legislation that would greatly expand the EB green card program, and since it knows that the "protections" in current EB law are worthless, it should add provisions to the expansion bill that will plug the loopholes. It should not expand the program in the first place, but if it insists on pleasing its corporate patrons with an expansion bill, it should at least put in provisions in the bill to make sure that the law really does require Americans to be given hiring priority over foreign workers, so that the letter of the law lives up to the law`s intent.

Norm