Comments to the Department of Labor Proposed Rule, RIN 1205-AB 42, "Labor Certification for the Permanent Employment of Aliens in the United States; Reducing the Incentives and Opportunities for Fraud and Abuse and Enhancing Program Integrity", F R Volume 71, No.29, February 13, 2006(The below comments were e-mailed by Mr. Lee to the Department of Labor on 4/13/06 in response to the Department's proposed rule) The proposed rule of February 13, 2006, on labor certifications to ostensibly reduce the incentives and opportunities for fraud and abuse and to enhance program integrity goes way too far. Looking through the rule, it becomes clear that DOL has become paranoid in its effort to ensure that there is never a repeat of the infamous Kooritzky case. The prohibition against aliens paying for attorneys' fees in labor certification applications definitely overtips in the direction of paranoia. Attorneys throughout the years have traditionally been paid in many cases by the aliens for the work done on labor certification applications. This is right and appropriate as labor certifications are generally perceived to give a benefit to the alien rather than the employer. In most cases, employers would prefer to have aliens on H-1B or other statuses since there is a greater risk of losing them once the green card is approved than if they have no green card. Also green card holder workers are generally more demanding in working rights and pay. Your observation in the preamble that "Employers, not aliens, file a permanent labor certification application and, therefore, these employer costs are not to be paid or reimbursed in any way by the alien beneficiary" is simplistic, and does not take into account the perceptions of both employers and aliens as to who benefits in the permanent residence application. We have heard of and actually been asked by employers in the past to slow down the labor certification process so that the employers could obtain more benefit from the relationship before running the risk of the aliens leaving after obtaining permanent residence. Because of the perception of who benefits and many employers ' belief that they are already doing the alien a favor by assisting in the the paperwork and interview process, many employers in my estimation would not be willing to pay the costs of a permanent residence application including labor certification for the alien. Not allowing aliens to pay attorneys' fees only makes sense if DOL's real motive is to discourage labor certifications from being filed. Labor certification substitution continues to serve a purpose and should not be abolished. Just looking at the visa bulletin of May 2006 tells you why -- the EB-3 category is backlogged to May 1, 2001, the EW-3 to October 1, 2000, and the EB-2 for China and India to January 1, 2004 and January 1, 2003 respectively. Although the DOL makes the point that the labor certification process is now much faster, employers must wait for the priority dates to clear before the aliens are able to file for immigrant visas or adjustment of status. For employers without workers in the positions at the present time, there is great hardship if they must wait years for the positions to be filled. The labor certification substitution allows the transfer of the priority date for the original alien being petitioned for where he/she is no longer available for any reason, thus alleviating employer hardship. There is indeed a fear of abuse, but DOL has already implemented many safeguards in the PERM system including the requirements that employers set up the PERM account and that employers answer the 4 sponsorship questions before a PERM application can be processed. DOL should also be assured with the knowledge that the worst abusers are presently serving prison terms. This is a classic case of DOL throwing out the baby with the bathwater.
We strongly believe that this rulemaking is unnecessary and overreactive
and should not be implemented.
† 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 © 2006 Alan Lee, Esq.
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Copyright © 2003-2012 Alan Lee,
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