Green Card Lovin’ Law Firm Fights Labor Department

[WSJ_law_blog]

An ongoing battle between the Labor Department and a prominent law firm just got nastier.

Fragomen, Del Rey, Bernsen & Loewy, a prominent New York immigration firm, is being audited by the Labor Department for possibly giving too much assistance to clients that seek green cards for foreign workers. Today, the firm fired back with a suit claiming that some of the department’s rules are unconstitutional.

At issue are controversial Labor Department rules that require a company, as a condition for sponsoring a foreign worker for a green card, to certify to the Labor Department that the company has not been able to find a “minimally qualified” U.S. worker to fill the job. Lawyers are limited from advising companies as to whether an American worker can be deemed qualified, according to Labor Department regulations. These regulations are aimed at preventing lawyers from helping clients find reasons not to hire qualified Americans.

In June, the Labor Department announced it was auditing green-card applications filed by Fragomen, because of a concern the firm may have improperly helped companies review the qualifications of American workers. Fragomen has denied wrongdoing. Here’s a law blog backgrounder on the audit.

The Labor regulations have been criticized widely by immigration lawyers, who say companies need their help in navigating a complicated area of law. The regs also violate clients’ First Amendment and due process rights to seek the advice of counsel, Fragomen claims in its suit. “As a result of the Department’s unlawful actions,” the suit asserts, “Fragomen has lost business from clients as well as opportunities to compete for new business.”

David James, assistant Secretary of Labor for public affairs, said that the department is “confident that it’s reasonable interpretation of its rules will be upheld.” The department previously has said that it’s not trying to limit legal advice but says that determining whether an employee is qualified typically shouldn’t require attorney input.