Dear Readers:

This week opened with a very disturbing proposed regulation being released by the US Department of Labor regarding labor certifications for green card cases. The rule is ostensibly being released as a response to what the Labor Department says is an “emerging” black market in labor certifications. The rule would end the long standing policy of allowing employers to substitute workers on petitions, it would require employers to file I-140 petitions within 45 days of a labor certification being approved and it would actually bar employees and third parties from paying attorneys fees.

The Labor Department states over and over again that there is a serious problem with fraud and abuse, yet the preamble to the proposed rules only list a couple of cases and provide no statistics to back up the claims. The Labor Department has processed hundreds of thousands of cases over the last few years. If only a tiny percentage involved fraud, does it make sense to dramatically change the system? And every example of fraud cited by DOL is a crime punishable by prison (in fact, the one major case DOL cited several times did result in an attorney being imprisoned). Why is better enforcement of existing law not the solution here?

There are also serious questions raised about whether it is ever appropriate for a government agency to interfere with an individual’s ability to access legal counsel. The DOL simply states that because the employer is the petitioner in a labor certification case, the employer should be paying the fee. But it is the employee that bears the consequences when the labor certification process runs into trouble. For example, a properly pending labor certification allows a worker to continue remaining in H-1B status, access to 245i benefits, a priority date in queues that may be several years long, etc. An employer obviously has an interest in a case being successful, but the reality is that the employee’s life is more adversely affected when the case runs into problems.

Some employers are also not in the position to hire an attorney (especially non-profits charitable organization) and will be likely to go the do-it-yourself route. Is it fair to either those employers or their employees to not allow them to negotiate a deal that works for both? The DOL rules does not even mention a link between the prevailing wage and attorneys fees as they did in the H-1B regulations of a few years ago. So an employee making considerably over the prevailing wage still would not have the right to pay an attorney.

In many cases, particularly at universities, the employer has non-attorney staff handling labor certifications. But because of limited resources, cases don’t move quickly and employees grow frustrated. Some of these employers give employees the option of choosing to hire their own attorneys to manage the process as long as the employee pays. These types of very reasonable arrangements would be barred under the proposed rule.

For years I have encouraged arrangements where employers and employees each hire their own counsel to jointly work on a labor certification case. That way, when a conflict develops, each side would have their own representation and both employer and employee would be free to communicate with counsel and direct them to take actions that protect their interests. Those types of arrangements, routinely encouraged by ethics specialists, would be effectively barred by this regulation.

Presumably, many of our readers will be upset by this rule. Fortunately, this is only a PROPOSAL and there is time to make your voices heard. The Labor Department is required to review comments on the rule and those comments may be submitted during the 60 day period that began on February 13^th.

The proposed rule can be found in the February 13^th Federal Register.  We’ve posted the regulation on our web site at www.visalaw.com/DOL.pdf and you can download it there. The more comments DOL receives, the more likely they will be to modify or abandon the proposal. Our own law firm is working on a comment which I will publish when it is ready and I encourage many of the thousands of lawyers, employers and employees who read this newsletter to do the same.

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As always, we remind readers that we're lawyers who make our living representing immigration clients and employers seeking to comply with immigration laws. We would love to discuss becoming your law firm. Just go to http://www.visalaw.com/intake.html to request an appointment or call us at 800-748-3819 or 901-682-6455.

Regards,

Greg Siskind