DOL Publishes Guidance on Attorney Involvement in Recruitment Process

June 20th, 2008

The US Department of Labor (DOL) has issued a guidance regarding attorney involvement in the recruitment process, entitled “PERM Program Guidance Bulletin on the Clarification of Scope of Consideration Rule in 20 CFR 656.10(b)(2).”  In this guidance, DOL discusses the primary role of the PERM labor certification, which is to protect US workers by testing the US labor market to identify any able, available, qualified and willing US workers for the position.  If any such workers are found, then the PERM labor certification may not be filed.  A critical issue regarding the recruitment process is the attorney’s involvement.  The DOL wants to ensure that attorneys are not disqualifying otherwise eligible workers. The following is the actual guidance from DOL: 

“The Department has long held the view that good faith recruitment requires that an employer’s process for considering U.S. workers who respond to certification-related recruitment closely resembles the employer’s normal consideration process. In most situations, that normal process does not involve a role for an attorney or agent (as defined in 20 C.F.R. 656.3) in assessing the ability of applicants to fill the employer’s needs. It also does not involve any role for the foreign worker or foreign national in any aspect of the consideration process. However, given that the permanent labor certification program imposes recruitment standards on the employer that may deviate from the employer’s normal standards of evaluation, the Department understands and appreciates the legitimate role attorneys and agents play in the permanent labor certification process, and respects the right of employers to consult with their attorney or agent during that process to ensure they are complying with all applicable legal requirements.

By prohibiting attorneys, agents, and foreign workers from interviewing and considering U.S. workers during the permanent labor certification process, as described in 20 C.F.R. 656.10 (b)(2)(i) and (ii), the Department does not thereby prohibit attorneys and agents from performing the analyses necessary to counsel their clients on legal questions that may arise with respect to this process. The employer, and not the attorney or agent, must determine whether a U.S. applicant’s credentials meet the minimum qualifications for the position, unless the attorney or agent is the representative of the employer who routinely performs this function for positions for which labor certifications are not filed. After an employer evaluates a U.S. worker and concludes that the worker is unqualified, the employer may seek the advice of its attorney or agent to ensure that its reasons for rejecting the U.S. worker are lawful, and the attorney or agent may review the qualifications of the U.S. worker to the extent necessary to provide that advice. By contrast, if an employer evaluates a U.S. worker and determines that the worker is minimally qualified, the attorney, agent, or foreign worker may not thereafter consider the applicant’s qualifications and attempt to substitute his or her own judgment for that of the employer. In the Department’s view, an employer’s determination that a U.S. worker is minimally qualified for a position constitutes clear evidence that there are U.S. workers who are able, willing, qualified and available for the work to be undertaken.

More specifically, the types of actions prohibited by 20 C.F.R. 656.10(b)(2)(i) and (ii) include:

Attorneys and agents may receive resumes and applications from U.S. workers who respond to the employer’s recruitment efforts; however, they may not conduct any preliminary screening of applications before the employer does so, unless the attorney or agent is the representative of the employer who routinely performs this function for positions for which labor certifications are not filed. The attorney or agent may not withhold from the employer any resumes or applications that it receives from U.S. workers.

Attorneys and agents may not participate in the interviewing of U.S. worker applicants, unless the attorney or agent is the representative of the employer who routinely performs this function for positions for which labor certifications are not filed. Such involvement, because of its uniqueness, has resulted in an impermissible “chilling effect” on the interests of U.S. worker-applicants in the position.

After the evaluation of applications by the employer has been completed, the employer may consult with its attorney or agent about the implications of its qualification determinations on the labor certification application. Those consultations can encompass the question of whether applicants who were found by the employer to be unqualified were rejected for lawful, job related reasons. Under no circumstances, however, should an attorney or agent seek to dissuade an employer from its initial determination that a particular applicant is minimally qualified, able, willing and available for the position in question.

Where the Department finds evidence of potentially improper attorney, agent, or foreign worker involvement in considering U.S. worker applicants, the Department may audit applications to determine whether the employer’s recruitment and hiring processes were conducted in good faith and to ensure adherence to all statutory and regulatory requirements.”

Immigration Court Practice Manual Effective July 1, 2008

June 17th, 2008

The Executive Office for Immigration Review’s (EOIR) Immigration Court Practice Manual will be effective nationwide on July 1, 2008, and all parties appearing before a US immigration on or after this date must comply with the rules and procedures in this manual.   This will provide consistency to parties, where before they were compelled to learn the varying rules of the different immigration courts.

US Supreme Court Decides on the Side of Illegal Aliens

June 17th, 2008

The US Supreme Court reversed the 5th Circuit in Dada v. Mukasey, making it easier for some foreigners who overstay their visas to seek to remain in the US legally. The court ruled 5-4 that an illegal alien may withdraw request for voluntary departure and continue to try to legalize his or her status in the US.  It held:

“Absent a valid regulation resolving the dilemma in a different way, we conclude the alien must be permitted an opportunity to withdraw the motion for voluntary departure, provided the request is made before the departure period expires. Petitioner attempted to avail himself of this opportunity below. The Court of Appeals for the Fifth Circuit did not disturb the Board of Immigration Appeals (BIA or Board) denial of petitioner’s request to withdraw the voluntary departure election. We now reverse its decision and remand the case.”

Commerce Secretary Supports Comprehensive Immigration Reform

June 11th, 2008

The following is a strong statement from Commerce Secretary Gutierrez, from a June 9, 2008, State of Immigration Address,  in favor of comprehensive immigration reform and acknowledging the deleterious dearth of immigrant, H-1B and H-2A and H-2B visa numbers, which are critical to allowing our economy to remain competitive:

“I would like to talk a little about the business environment and what is happening in the business community as it refers to immigration and the need for immigration reform. There’s a lot of discussion about the burden of immigration but there is not enough conversation about the risk of not having enough immigrants, especially a risk to our economy and a risk to our competitive position as it relates to the rest of the world.

So as you can see from the Secretary’s comments immigration reform remains a top priority for the Bush Administration. In the absence of legislation from Congress we’ve been proactively tackling this issue head on with as many administrative actions as possible.

The American people want and deserve a thoughtful, broad-based approach to immigration that focuses on the security and the economic prosperity of our country. Last August, Secretary Chertoff and I announced a package of administrative reforms that sharpened existing tools to protect our citizens and make our immigration system more workable.

We’ve made strides in securing our border. In fact, we’ve made great strides in securing our borders and enforcing existing immigration laws. But we cannot neglect our economic security; and that’s exactly what we’re doing by not passing comprehensive immigration reform.

At a time when we are facing tough economic challenges, our actions must boost our economy, not hamper it. The reality is that we simply do not have enough workers at both ends of the spectrum and I will repeat that. Our reality as a nation is that we do not have enough workers at both ends of the spectrum. That means for low-skilled, field laborers, all the way to high-skilled technology workers.

For example, for the fifth straight year our H-1B cap was filled at or before the start of the fiscal year. This year the cap was reached in one week. That’s why, as Secretary Chertoff mentioned, we are proposing administrative reforms to our high-skilled programs and to the H-2B non-agriculture temporary worker program.

In addition, we have proposed changes to the H-2A agricultural seasonal worker program. The changes will make the H-2A system more efficient and ensure an orderly and timely flow of legal, foreign workers. They will also protect the rights of all agricultural workers, American and foreign, and make no mistake we need both. We don’t have enough domestic workers to meet the food needs of our country.

The New York Times ran an article with the headline “Shortage of Labor to Cut Food Supply: Farmers Handicapped by Lack of Help Reduce Their Crop Acreage.” That headline and the article ran in 1920. Coincidently that was amidst one of the worst anti-immigration waves that we have ever seen.

Nearly a century later we face similar challenges, but this time, rather than reduce consumption we’ll have to turn to foreign producers or move our farms overseas to feed our families. In fact, that is already happening. A survey by the U.S. Farm Group, Western Growers, indicated American companies now farm more than 45,000 acres of land in Mexico employing 11,000 people.

At a time when we are looking to further secure our food supply to tighten our import safety and to continue to increase and contribute to world supply because of the prices of food, we should not encourage the outsourcing of American agriculture. And what Congress is doing by avoiding to pass comprehensive immigration reform is effectively encouraging the outsourcing of American agriculture.

We know there are employers who have not been able to fill many jobs with American workers. We simply can’t ignore the problem and hope that the issue will go away. A comprehensive solution remains the best and the most long term option. Without it, we’re getting a piecemeal approach, which is something we talked about when we mentioned the fact that comprehensive reform had failed, we talked about the fact that we were going to get a piecemeal approach to a national issue.

For example, in 2007 states enacted 240 immigration laws. That’s up from 84 the year before. Immigration is being debated in every capital in the country. A total of 1,562 immigration bills were introduced last year. This patchwork of laws is untenable in the long term. So we will continue to look at ways to improve existing programs and address all aspects of immigration. Other major economies around the world have realized the need for immigration policy to help them grow their economies, and we are all competing for growth, and everyone is trying to grow their economies and most major economies have realized that they cannot grow without a comprehensive immigration policy.

Our country has a long history of making immigration work. We have more experience than any other nation and it has been one of our greatest advantages, if you look back through our economic history we would not have accomplished what we have accomplished if it were not for the help and the work of immigrants.

We can make immigration an advantage that will last for a century. The issue is not going to go away. Regardless of who is President and regardless of which party is in power, immigration will remain both a tough challenge but also a tremendous opportunity for our country if we get this right, if we approach it in a thoughtful way, and if we are decisive about confronting a problem that will not go away.”

Such remarks ring with reason and practicality.  Let’s hope that such astute understanding will wash over the benighted in Congress.

USCIS to Issue Two-Year EADs

June 11th, 2008

According to DHS Secretary Michael Chertoff, at a State of Immigration Address on June 9, 2008, USCIS will begin issuing employment authorization documents (EAD) valid for two years instead of one year, as they are currently issued, for adjustment of status applicants.  He states:

“I’m also pleased to announce that we will be extending the validity period of the employment authorization documents that we issue to individuals who are waiting adjustment of status to lawful permit residenture or colloquial phrase, the green card. Currently, adjustment applications are granted employment authorization documents with only a one year maximum validity. Beginning later this month, we’ll start issuing these documents with a two-year validity period for aliens who are waiting adjustment of status if their application is expected to be pending for more than a year. This, again, is eliminating a persistent source of frustration for workers who are here, who have a pending adjustment application but have to go and renew their employment documents every single year.” 

Federal Contractors Must Use E-Verify

June 10th, 2008

The Department of Homeland Security (DHS) has designated the free, online employment eligibility verification system, E-Verify, as the electronic employment eligibility verification system that all federal contractors must use, as required by Executive Order 12989.

In particular, Executive Order 12989 directs all federal departments and agencies to require contractors, as a condition of each future federal contract, to agree to use an electronic employment eligibility verification system designated by DHS to verify the employment eligibility of all persons performing work within the United States on the federal contract.

According to  “More than 69,000 employers currently rely on E-Verify to determine that their new hires are authorized to work in the United States. Employers have run more than 4 million employment verification queries so far in fiscal year 2008. Of those queries, 99.5 percent of qualified employees are cleared automatically by E-Verify.”

FBI Background Check System Has Serious Deficiencies

June 10th, 2008

The Washington Post  reported that “The FBI system for checking the names of immigration applicants suffers from ‘serious deficiencies’ that have produced overwhelming backlogs and questions about the reliability of the information, an internal audit has found. The bureau’s name checks have fallen victim to ‘outdated and inefficient technology’ as well as inadequately trained employees, according to a report issued yesterday by the Justice Department inspector general.”

The relatively recent news related to the backlog in background checks is that USCIS will now approve adjustment of status cases (Form I-485) pending for at least six months even if the background checks have not cleared. If negative information is discovered after the approval, then USCIS can take action.  USCIS needs to extend this policy to naturalization and asylum cases as well.

Interim Rule on Pre-Authorization for VWP Travelers

June 6th, 2008

On June 3, 2008, DHS announced an interim final rule on the Electronic System for Travel Authorization (ESTA), a new online system for the Visa Waiver Program (VWP).  When it takes effect later this year, all nationals of VWP (visa waiver) countries who wish to enter the US under the VWP will need to receive electronic travel authorization prior to departure.

US Department of Labor to Audit all Fragomen’s PERM Labor Certifications

June 6th, 2008

On June 2, 2008, the US Department of Labor announced that it will audit all PERM labor certifications filed by attorneys at Fragomen, Del Rey, Bernsen & Loewy LLP. , a major immigration law firm: firm.

The announcement states in part:  “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.”

USCIS Provides Guidance on H extensions, I-140s & I-485s under AC21

June 6th, 2008

USCIS has issued a May 30, 2008, memo from Donald Neufeld, Acting Associate Director, Domestic Operations, USCIS, which provides supplemental guidance on the processing of I-140s and H-1Bs under AC21 and on I-485 portability.  It has updated its policies to incorporate the 6-month validity of the PERM labor certification into AC21.