Norm Matloff On The Lies Of Immigration Lawyers
June 10, 2008, 11:15 PM
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From Norm Matloff's H-1B/L-1/offshoring e-newsletter

Norm Matloff writes:

Immigration Daily, a publication for immigration lawyers, runs several times a week on the Internet. It contains the latest news on immigration legislation and litigation, and claims 17,000+ subscribers.

Each issue typically contains a couple of news items, some Help Wanted ads for law offices, and an editorial. ILW has now come out with a doozy of an editorial in its June 10 issue, [The DOL Circus]dramatically stating that the PERM requirement, under which employers wishing to sponsor foreign workers for green cards must first recruit Americans for the job, is all play-acting, in ILW's own words a "charade" and a "circus." I couldn't have said it better myself. :-)

But is this a giant mea culpa, a cathartic tell-all titled "How I Used Every Loophole in the Book to Help My Clients Avoid Hiring Americans"? Au contraire, it's a complaint that Congress set up this charade and now makes employers play along.

This is highly disingenuous. The lawyers are making tons of money out of this very charade—they'd go broke if the whole process consisted of a simple one-page form that was rubber-stamped. But now this audit is making them worried. Fragomen is a big fish, the biggest, and all this publicity is not good for the lawyers. They wanted things to stay the way they were, giving the appearance that American workers were protected, while the lawyers were busily making use of every possible loophole to enable their employer clients to avoid hiring Americans.

All this fuss can be traced directly back to "TubeGate," the set of videos posted on YouTube in which a prominent Pittsburgh law firm, Cohen and Grigsby, showed employers some of these vital loopholes I keep citing. (See my base posting on this) The relevant tape in the set is video 9, which shows employers who wish to sponsor a foreign worker for a greencard how to avoid hiring American workers, in FULL COMPLIANCE WITH THE LAW. (In video 12, they show how to pay H-1Bs and greencard sponsorees below-market wages, again fully legally.)

Forgive me for speaking so bluntly, but the immigration lawyers are showing themselves to be out-and-out liars. That's nothing new, of course. Programmers and engineers have known for years that the green card process was stacked against the American worker, and I pointed out some of the loopholes that make this possible. Then immigration attorney Joel Stewart said it publicly: "Employers who favor aliens have an arsenal of legal means to reject all U.S. workers who apply" (Joel Stewart, "Legal Rejection of U.S. Workers," Immigration Daily, April 24, 2000).

But people on Capitol Hill didn't know it until the Cohen & Grigsby videos came out, showing that all those assurances the AILA and others gave Congress that the system protects American workers were bald-faced lies. Many of you remember what C & G attorney Larry Lebowitz said in video 9, but few of you know that Lebowitz was actively lying to the outside world, saying exactly the opposite of what he told his clients "privately" in video 9. This is what Lebowitz said in his op-ed in the Pittsburgh Post-Gazette, May 21, 2000:

U.S. companies that bring in foreign professionals usually do so as a last resort...These rules actually help U.S. workers, too, by...ensuring that U.S. workers are not displaced...
But in the "private" video, he said
And our goal is clearly, not to find a qualified and interested U.S. worker. And you know in a sense that sounds funny, but it's what we're trying to do here. We are complying with the law fully, but ah, our objective is to get this person a green card, and get through the labor certification process. So certainly we are not going to try to find a place [at which to advertise the job] where the applicants are the most numerous. We're going to try to find a place where we can comply with the law, and hoping, and likely, not to find qualified and interested worker applicants.
Similarly, another Cohen & Grigsby attorney, Matt Phillips, told the Pittsburgh Post-Gazette (Crush of Applicants for Visas Has Firms Fearing Staff Losses, Anya Sostek, April 5, 2007):
The visas are so essential, [the employers] say, because there just aren't qualified Americans to fill the jobs...If the numbers [of U.S. workers] were available in the economy, no one would pay us to do this [visa application process].
But in the "private" videos, he was saying just the opposite, showing how to avoid hiring Americans. Meanwhile, in video 12, his colleague Jen Pack was showing how to pay below-market wages to both green card sponsorees and H-1Bs, again fully legally, and thus making it definitely worth that expensive visa application process Phillips referred to.

So, you have both Lebowitz and Phillips assuring the public that the law protects American workers while these two lawyers are telling their clients (accurately) that it doesn't.

Remember, the lame excuse they gave for lying to the public is that employers already have a worker in hand, the foreign national who they hired earlier as an H-1B, and thus don't want to look for an American. And it's even worse than that, because in offering this excuse they were hiding the fact that when the employers hired their H-1Bs, there was NO requirement that they recruit Americans. In other words, what the lawyers really want is there to be no U.S. recruitment requirement at ANY stage, period. Getting back to ILW, the point is that today's editorial, dramatically describing the green card law's recruitment requirement as a "charade," shows that Cohen & Grigsby is not some rogue law firm, some isolated instance. On the contrary, their behavior is STANDARD OPERATING PROCEDURE. Attorney Stewart's book quote that too—he wrote a standard reference on the green card process—as does the fact that the AILA basically stated that Cohen & Grigsby were working along standard lines. Now we have Immigration Daily, a prominent publication for immigration lawyers, saying it too.

See also this response by one Katy Preston in the law office of Zhang & Associates responds to the Cohen & Grigsby video. She starts out by assuring us that

The labor certification process benefits U.S. workers by ensuring that no U.S. worker is being denied a job when an employer seeks permanent residence for one of its foreign workers.[PERM Job Postings: Bona Fide Positions, or a Necessary Evil?, Zhang & Associates website]
But then she lets the cat out of the bag:
The PERM process is really meant to test the job market, not to recruit someone for that specific position. Even if an employer does find a qualified U.S. worker for a particular position, the employer does not have to hire that worker.
Which is exactly ILW's point, and exactly why I keep trying to explain that the entire process is one giant loophole.

Preston has the nerve to then add,

So U.S. workers are not necessarily being displaced when a labor certification application is approved.
I hope everyone keeps in mind—once again—that all of this is about LOOPHOLES. DOL might find some minor violation on Fragomen's part, but as you can see from ILW's editorial, the entire process is a CHARADE. The LAW is the problem, not enforcement of the law.

Norm