More About Fragomen, Del Rey, Bernsen & Loewy

More About Fragomen, Del Rey, Bernsen & Loewy

It appears that there are others who are quite concerned about the shenanigans involving applications for H-1B visas, and for green cards for those who are already here on H-1B visas--and they make a rather important point:

I usually do NOT post articles here about employers being investigated or fined by the DOL for violating H-1B law or regulations. This may seem odd, as many of the anti-H-1B-visa activists are thrilled when such a thing occurs, but as I've mentioned many times, these incidents are NOT important, because the vast majority of employers are abusing the spirit of H-1B in FULL COMPLIANCE WITH THE LAW, due to loopholes. Indeed, I've pointed out that the industry lobbyists love these incidents, because it allows them to divert attention from the real issue, which is the loopholes. See http://heather.cs.ucdavis.edu/Archive/PascrellJohnsonDebate.txt

But the case described below is special, really special, because it involves the largest immigration law firm in the nation, Fragomen, Del Rey, Bernsen & Loewy, LLP. Mr. Fragomen literally "wrote the book" on H-1B, in fact lots of books on employer-sponsored immigration, all considered standard references (www.fragomen.com/resources/publications.shtml).

So when there is an audit, amounting to an accusation that the Fragomen firm may be violating the law on employer-sponsored green cards, this is of keen interest to me. Mind you, I do NOT think they did anything illegal--once again, they simply took advantage of loopholes--and I still have the same concern that this investigation will distract the H-1B/green card dialogue from the real issues. But I must say it's interesting for me to see Fragomen squirm.

And in fact the case actually highlights the central role that the loopholes play, as you'll see. The DOL says (see their statement enclosed below) that "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." What does this really mean?

Recall "TubeGate," the set of videos posted on YouTube in which a prominent Pittsburgh law firm, Cohen and Grigsby, showed employers some of these vital loopholes I keep citing. (See the base posting on this (http://heather.cs.ucdavis.edu/Archive/YouTubeVideosH1B.txt and several others, titled LegalNewspaperViewOfTubeGate.txt, PittsburghYouTube.txt, TubeGateFirmReplies.txt and CohenAndGrigsbyPrevailingWage.txt in that same directory). In video 12, they show how to pay H-1Bs and greencard sponsorees below-market wages, in FULL COMPLIANCE WITH THE LAW. But it is video 9 that has gotten the most attention, as they show employers who wish to sponsor a foreign worker for a greencard how to avoid hiring American workers.

In those presentations, the Cohen and Grigsby firm promises to work with their clients, i.e. employers of foreign workers, to insure that the employers' goal is met--to avoid hiring Americans. That's basically what Fragomen seems to be accused of.

Yet as the ILW editorial, also enclosed below, points out, these employers are merely exercising their right to legal counsel. Sure, it's counsel regarding odious loopholes that undermine the putative intent of the law, but as long as the loopholes are there, the employers have the right to use them and to get advice from counsel as to how to do so. Their doing so is no different from using a good tax accountant who knows all the loopholes. Again, I think the whole thing is outrageous, but I really don't see that DOL has a case.

And indeed, a reader points me to this September 19, 2008 New York Law Journal article that indicates that the Dept. of Labor may have figured this out as well:

With no fanfare, the U.S. Department of Labor has dropped its controversial audit of 2,500 green card cases handled by the nation's largest immigration law firm, Fragomen, Del Rey, Bernsen & Loewy.

The department had announced in June that it was auditing the permanent labor certification applications presented by Fragomen because it had information that, in at least some cases, "the firm improperly instructed clients who filed the applications to contact their attorney before hiring qualified workers."

If that were true, the department said in a press release, it would violate regulations limiting the involvement of an employer's lawyer when the employer is hiring an alien for skilled jobs -- regulations designed to ensure that American workers have priority.

But on Wednesday, the department did not issue a press release indicating the audit had been scrapped.

Instead, it issued a vague statement dated Sept. 17 under the "What's New" section of its Employment & Training Administration Web site.

The audit had stalled Fragomen's applications and angered the immigration bar. The firm sued the Labor Department in August in federal court in Washington, D.C., charging the audit was driven by a "radical and unprecedented interpretation" of department regulations and was an attempt by the government to "dictate both when employers can consult with their lawyers and what advice the lawyers can give."

In court papers, the firm also claimed the audit had "inflicted massive injury" on the firm's reputation.

Thursday, Convington & Burling partner Thomas Williamson, who represented Fragomen in the litigation, issued a statement on behalf of the firm saying it was pleased the department had "abandoned its blanket audit of Fragomen's previously-filed applications."

"Specifically, DOL concluded that its regulation and policy on attorney consideration of U.S. worker applicants as a part of PERM recruitment lacked clarity, so that audits triggered solely on the basis of the consideration rule would be released," Williamson said. "We are working with the Department and with the Department of Justice to move forward on the details of a resolution to our pending litigation."