The Department of Labor “clarifies” its view on the attorney’s role in the labor certification process

 

After the Department of Labor (DOL) recently decided to audit all labor certification cases filed by the biggest immigration law firm in the country, Fragomen et al. (which is also a major author on publications on the immigration process), claiming that some attorneys may have been inappropriately involved in the recruitment process, it appears that DOL has clearly been taken aback by the immigration bar's reaction to DOL's apparent over-reaching. The action by the DOL to effectively prosecute Fragomen publicly before any finding of wrongdoing has been seen as unfair and effectively targeting the entire immigration bar.

 

DOL therefore released on June 13, 2008 a document styled "PERM Program Guidance Bulletin on the Clarification of Scope of Consideration Rule in 20 CFR 656.10(b) (2)". The DOL appears to be defensive and attempting to justify its actions despite that DOL does not have sufficient resources to audit in the way it recently has been. As a practical matter, US employers need to remain in contact with counsel to wade through the almost incomprehensible labor certification process. It will be very interesting to see how the DOL handles this matter as the U.S. needs additional foreign workers (as does most of the recent of the world's industrialized countries). If DOL is interested in rooting out fraud, DOL may want to work more closely with organizations like the American Immigration Lawyer's Association AILA) to ensure that the process does work as intended.

White House on Electronic Employment Eligibility Verification

Recently there has been a lot of activity on the "employer-side" of immigration, such as raids, etc. On June 9, 2008, the White House issued an Executive Order (see http://www.whitehouse.gov/news/releases/2008/06/print/20080609-2.html ) which states that contracting agencies may not enter into contracts with employers that do not use an electronic employment eligibility verification system designated by the Secretary of Homeland Security.

It will be interesting to see how/if this is challenged as social security numbers/records still aren't actually "tied to" immigration records and often do not "prove" more than that one has been issued. Social security numbers are "tracking numbers" and do not by themselves prove/disprove that a person is authorized to work in the U.S. Given the (lack of) accuracy of many government records it is unclear how effective the electronic system may be in the first place. Perhaps focusing on comprehensive immigration reform may be a more cost-effective alternative?

NY Times Op-Ed on the “Great Immigration Panic”

See below for an excellent article from the New York Times. One can only hope that Congress will take notice.

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New York Times Op-Ed

June 3, 2008

The Great Immigration Panic

Someday, the country will recognize the true cost of its war on illegal immigration. We don't mean dollars, though those are being squandered by the billions. The true cost is to the national identity: the sense of who we are and what we value. It will hit us once the enforcement fever breaks, when we look at what has been done and no longer recognize the country that did it.

A nation of immigrants is holding another nation of immigrants in bondage, exploiting its labor while ignoring its suffering, condemning its lawlessness while sealing off a path to living lawfully. The evidence is all around that something pragmatic and welcoming at the American core has been eclipsed, or is slipping away.

An escalating campaign of raids in homes and workplaces has spread indiscriminate terror among millions of people who pose no threat. After the largest raid ever last month — at a meatpacking plant in Iowa — hundreds were swiftly force-fed through the legal system and sent to prison. Civil-rights lawyers complained, futilely, that workers had been steamrolled into giving up their rights, treated more as a presumptive criminal gang than as potentially exploited workers who deserved a fair hearing. The company that harnessed their desperation, like so many others, has faced no charges.

Immigrants in detention languish without lawyers and decent medical care even when they are mortally ill. Lawmakers are struggling to impose standards and oversight on a system deficient in both. Counties and towns with spare jail cells are lining up for federal contracts as prosecutions fill the system to bursting. Unbothered by the sight of blameless children in prison scrubs, the government plans to build up to three new family detention centers. Police all over are checking papers, empowered by politicians itching to enlist in the federal crusade.

This is not about forcing people to go home and come back the right way. Ellis Island is closed. Legal paths are clogged or do not exist. Some backlogs are so long that they are measured in decades or generations. A bill to fix the system died a year ago this month. The current strategy, dreamed up by restrictionists and embraced by Republicans and some Democrats, is to force millions into fear and poverty.

There are few national figures standing firm against restrictionism. Senator Edward Kennedy has bravely done so for four decades, but his Senate colleagues who are running for president seem by comparison to be in hiding. John McCain supported sensible reform, but whenever he mentions it, his party starts braying and he leaves the room. Hillary Rodham Clinton has lost her voice on this issue more than once. Barack Obama, gliding above the ugliness, might someday test his vision of a new politics against restrictionist hatred, but he has not yet done so. The American public's moderation on immigration reform, confirmed in poll after poll, begs the candidates to confront the issue with courage and a plan. But they have been vague and discreet when they should be forceful and unflinching.

The restrictionist message is brutally simple — that illegal immigrants deserve no rights, mercy or hope. It refuses to recognize that illegality is not an identity; it is a status that can be mended by making reparations and resuming a lawful life. Unless the nation contains its enforcement compulsion, illegal immigrants will remain forever Them and never Us, subject to whatever abusive regimes the powers of the moment may devise.

Every time this country has singled out a group of newly arrived immigrants for unjust punishment, the shame has echoed through history. Think of the Chinese and Irish, Catholics and Americans of Japanese ancestry. Children someday will study the Great Immigration Panic of the early 2000s, which harmed countless lives, wasted billions of dollars and mocked the nation's most deeply held values.