With no fanfare, the U.S. Department of Labor has dropped its controversial audit of 2,500 green card cases handled by the nation's largest immigration law firm, Fragomen, Del Rey, Bernsen & Loewy.
The department had announced in June that it was auditing the permanent labor certification applications presented by Fragomen because it had information that, in at least some cases, "the firm improperly instructed clients who filed the applications to contact their attorney before hiring qualified workers."
If that were true, the department said in a press release, it would violate regulations limiting the involvement of an employer's lawyer when the employer is hiring an alien for skilled jobs -- regulations designed to ensure that American workers have priority.
But on Wednesday, the department did not issue a press release indicating the audit had been scrapped.
Instead, it issued a vague statement dated Sept. 17 under the "What's New" section of its Employment & Training Administration Web site.
The audit had stalled Fragomen's applications and angered the immigration bar. The firm sued the Labor Department in August in federal court in Washington, D.C., charging the audit was driven by a "radical and unprecedented interpretation" of department regulations and was an attempt by the government to "dictate both when employers can consult with their lawyers and what advice the lawyers can give."
In court papers, the firm also claimed the audit had "inflicted massive injury" on the firm's reputation.
Thursday, Convington & Burling partner Thomas Williamson, who represented Fragomen in the litigation, issued a statement on behalf of the firm saying it was pleased the department had "abandoned its blanket audit of Fragomen's previously-filed applications."
"Specifically, DOL concluded that its regulation and policy on attorney consideration of U.S. worker applicants as a part of PERM recruitment lacked clarity, so that audits triggered solely on the basis of the consideration rule would be released," Williamson said. "We are working with the Department and with the Department of Justice to move forward on the details of a resolution to our pending litigation."
PERM stands for Program Electronic Review Management Labor Certification, part of a process in which the department issues labor certification allowing an employer to hire a foreign worker to work permanently in the United States.
Gregory F. Jacob, solicitor of labor, had said in the June press release that the decision "to further investigate these applications will help ensure the integrity of the permanent labor certification process and ultimately protect job opportunities for American workers."
The statement announcing the end of the audits on Wednesday said the department had been "presented with evidence indicating that prior to its recent audits, many immigration attorneys believe that the Department's rule regarding consideration of U.S. workers did not apply to them unless they represented not only the employer seeking labor certification, but also the alien for whom the certification was being sought."
That interpretation is incorrect, as the Department's recently issued PERM program clarifying guidance makes clear."
Ted J. Chiappari, a partner at Satterlee Stephens Burke & Burke who is not involved in the case, said it was the right decision.
"The Department of Labor mishandled it all along. They just jumped the gun," said Chiappari, an immigration columnist for the Law Journal. "I think they want to make sure that going forward they have the interpretation of the rules being applied and they don't want to have a judge look over their shoulder and say 'that's the wrong interpretation.'"
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Labor Department Drops Green Card Audit of Nation's Largest Immigration Law Firm
New York Law Journal
September 19, 2008
