News Update - September 6, 2008

By Alan Lee, Esq.

Department of Labor v. Fragomen, Del Rey - Long Backlogs for Labor Certification Applications a Looming Consequence

In the on-going federal court tussle of the major immigration law firm Fragomen, Del Rey, Bernsen & Loewy, LLP, against the Department of Labor (DOL) over PERM (Program Electronic Review Management System) labor certifications in which Fragomen is accused of unduly interfering in the employer's selection process of U.S. workers for the position in question and in turn accuses DOL of overreaching in trying to limit attorneys' advice to employers throughout the labor certification application process, what is most alarming to everyone is the looming disaster of many labor certification applications running from two to five years from now on. DOL has announced that it will audit all of the firm's labor certification applications. In DOL's opposition to Fragomen's motion for a preliminary injunction, DOL stated figures adding up to approximately 3700 Fragomen represented labor certifications being audited.

The PERM process was instituted to replace Reduction-in-Recruitment which in turn replaced Traditional Recruitment, all changes made for the purpose of speeding up labor certification applications which had been languishing for years with DOL. Indeed the prime purpose and chief selling point of PERM was its promised speed. PERM appeared to work well as long as the DOL was still concentrating on its backlog of over 360,000 cases from the 1990's-early 2000's. But with the ending of the backlog by September 2007, DOL began to use many of its freed up employees to give harder scrutiny to PERM applications. In the DOL Stakeholders Meeting of July 15, 2008, DOL stated that it was currently working on audited cases with priority dates of March 2007. That is already a delay of over one year for audited cases and DOL also earlier provided statistics showing that audits of cases are increasing nationwide to 44% of cases submitted. With the Fragomen cases being thrown into the mix, there is more than serious doubt that DOL has the necessary manpower to handle the audits within any reasonable time frame, and the old story of waiting for years for a labor certification will probably ensue unless DOL changes course and returns to its pre-end-of-backlog way of adjudicating labor certification applications. While we are not advocating labor certification processing without standards, DOL must have some compromise to attain speedy processing and at least stop its current nitpicking on many cases.

Although DOL may wish to retain many of its backlog employees, it should place them in other positions rather than concentrating on issues such as attorneys advice in labor certification applications. They could be put in more productive roles which might include fixing the PERM process to allow flexibility so that every typographical error or wrong placement or failure to fill in the space does not cause an application to be denied. Or the PERM process could be altered to allow limited changes to the application after submission to the DOL either before or after an audit is mandated.


The author is a 26+ year practitioner of immigration law based in New York City. He was awarded the Sidney A. Levine prize for best legal writing at the Cleveland-Marshall College of Law in 1977 and has written extensively on immigration over the past years for the ethnic newspapers, World Journal, Sing Tao, Pakistan Calling, Muhasha and OCS. He has testified as an expert on immigration in civil court proceedings and was recognized by the Taiwan government in 1985 for his work protecting human rights. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004, and his victory in the Second Circuit Court of Appeals in a case of first impression nationwide, Firstland International v. INS, successfully challenged INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof. Its value as precedent, however, was short-lived as it was specifically targeted by the Administration in the Intelligence Reform Act of 2004.

This article © 2008 Alan Lee, Esq.

 

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