Heat Gets Turned up on Immigration Firm

[WSJ_law_blog]

We’ve written here and here about the battle between the Department of Labor and prominent immigration firm Fragomen, Del Rey, Bernsen & Loewy. The dispute involves whether the firm improperly advised some clients seeking permanent resident status for foreign workers. And now, thanks to a filing made by the DOL last week, we know a little bit more about the alleged Fragomen conduct that the DOL claims possibly stepped over the line.

But first, a quick recap. At issue are federal 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 in the extent to which they can assist companies in determining whether an American worker can be deemed qualified, according to Labor Department regulations that are aimed at preventing lawyers from helping find reasons not to hire qualified Americans. The department’s concern is heightened by the fact that companies usually seek green cards for foreign workers who are already on staff, so the companies have little interest in trying to find an alternate American worker for a job already filled.

In June, the Labor Department announced it was auditing all of the green-card applications filed by Fragomen, because of a concern the firm might have improperly helped companies review the qualifications of American workers. Fragomen has denied wrongdoing. And last month, it filed suit, claiming the Labor regulations violate clients’ First Amendment and due process rights. The firm seeks to enjoin the department from squelching attorney-client consultations on any aspect of the green-card process.

Last week, the department fired back, claiming in this filing that the injunction request is moot because the department issued a statement Aug. 29 clarifying that lawyers may in fact consult employers throughout the green-card process. (The department, however, continues to places limits on lawyers, including barring them from interviewing U.S. workers unless the lawyers routinely perform that function.)

The department also provided additional details about why it is auditing Fragomen. According to this declaration by a department employee, Fragomen stationed paralegals in some of its clients’ offices to possibly screen and assess applications by U.S. workers, which, the filings suggests, could be a violation of labor regulations. On Aug 12, according to the declaration, Fragomen admitted in a letter to the department that it has stationed employees with at least 11 clients and that at least one of these employees has pre-screened the resumes of U.S. workers and sorted them on the basis of their qualifications.

“As DOL now admits, legal advice can be given at any time throughout the [green-card] process,” says Thomas Williamson, a Covington & Burling partner representing the firm. “However, DOL continues to unlawfully restrict attorney-client consultation regarding the prescreening of resumes, which involves giving legal advice on a candidate’s qualifications under the complicated DOL rules.”