Nation of Immigrators - A public policy blog on America’s dysfunctional immigration system

Economists talk about the moral hazard - the notion that people should not be free to violate principles of good faith and fair play, but instead should be held accountable for their mistakes and transgressions. As Wikepedia tells us (at least as of 9/25/08):

Moral hazard is the prospect that a party insulated from risk may behave differently from the way [he, she or] it would behave if . . . fully exposed to the risk. Moral hazard arises because an individual or institution does not bear the full consequences of [his, her or] its actions, and therefore has a tendency to act less carefully than [he, she or] it otherwise would, leaving another party to bear some responsibility for the consequences of those actions.

In other words, moral hazard connotes irresponsible, perhaps lawless, risk-taking behavior that ultimately mistreats or unfairly disadvantages others. Economists, ethicists and many members of the public have decried the wholesale disregard of moral hazard in the bipartisan effort within Congress and the Bush Administration to bail out Wall Street. As a pragmatic matter, to promote the general welfare and avoid the seizing up of our economy for lack of liquidity, politicians are rising "above politics" and doing what they think is the right thing to save the economy and the American people.

Pragmatism and doing the right thing, despite moral hazard, is much less popular, however, when it comes to immigration - a word uttered only twice during the logorrheic speeches at the Democratic and Republican party conventions. Bailout amnesty for promoters and borrowers of "liar's loans" is fine, I suppose, if it promotes the general welfare. On the other hand, according to our morally nimble politicians, legal status for crossing the border to work and feed one's family, performing jobs that we need done but disdain for ourselves, would "reward law violators," and that would be wrong.

The French, I guess, are better at the practice of countenancing ethical hairsplitting. As François, Duc De La Rochefoucauld, sagely observed: "Hypocrisy is an homage that vice renders to virtue."

Harry Shearer, the actor and radio host, has a regular feature on LeShow, his weekly radio program. With deadpan voice, and music and lyrics in the background ("I'm sorry; so sorry"), Shearer reads a slew of recent public apologies from the famous and infamous, including a number of government officials. I doubt that the Labor Department's Sept. 17 announcement qualifies as a legitimate apology. Here it is:

The Department has been presented with evidence indicating that prior to its recent audits, many immigration attorneys believed that the Department’s rule regarding consideration of U.S. workers did not apply to them unless they represented not only the employer seeking the 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. Nevertheless, the Department will apply the requirements of the consideration rule as interpreted by its recent guidance only to labor certification applications the recruitment for which was begun after August 29, 2008, the date on which the Department’s final guidance was issued. All pending audits triggered exclusively by consideration rule concerns are therefore being released and will be processed in accordance with their original filing date.

So the DOL -- in a spirit of surprised discovery and more surprising leniency -- has just learned, apparently before August 29, 2008 when it issued its Restatement, that many immigration lawyers were fundamentally misinterpreting its PERM regulation. These lawyers "incorrect[ly]" believed that the attorney for the employer was exempt from the agency's PERM labor certification rule prohibiting consideration of the qualifications of U.S. worker applicants for the advertised job. As a result, the DOL has ceased the all-client audit of the Fragomen firm announced on June 2 to preserve "program integrity." The DOL's announcement does not disclose the newly discovered "evidence" to support its conclusion about mistaken lawyering. Perhaps some of that evidence came from AILA or maybe it came from Covington & Burling's brief outlining the relevant case law (at page 16 et seq.) filed in the Fragomen lawsuit against DOL. None of this evidence, however, is all that recent. I can only speculate, but maybe the immigration attorneys to whom the agency refers are the lawyers in the Department of Justice's Office of Immigration Litigation (OIL) representing DOL. Perhaps the OIL lawyers informed DOL that the agency's surreptitious insertion of a few words imposing a new prohibition on the employer's attorney into the "consideration" rule of the final PERM regulation might well be a violation of the notice and comment requirements of the Administrative Procedures Act. Maybe the OIL lawyers suggested that the federal district judge in the Fragomen litigation might take umbrage over this bureaucratic sleight-of-hand. In any event, given that the DOL says we immigration lawyers were all wrong in misreading the consideration rule, I -- on behalf of myself and any other immigration lawyers who share my sentiment -- hereby apologize:

* I'm sorry for failing to notice the text of the final rule and discovering the DOL's insertion of a few words to effect an unannounced change to the consideration provision. * I regret that I trusted the DOL to alert the public in the supplemental statement accompanying the final PERM rule that the text of the section on consideration had changed. * I was wrong to believe the DOL was serious in its June 2 press release, its later FAQ and its "Clarification" bulletin, in proscribing certain types of attorney behavior during the PERM recruitment process, only to see these pronouncements superseded and Dissuasion's Disappearance in the August 29 Restatement. * I was naive and gullible to suppose that DOL viewed immigration lawyers as good-faith collaborators in a legal process where rules of fair play are honored.

So Mr. Shearer, I hope you consider my apology for LeShow. I doubt you'll be hearing one from DOL. --------

There's little wonder why confidence in government is at a low point. In a recent AAO decision, USCIS went out of its way to say that the public and the immigration bar should not be lulled into deceiving themselves that the agency will stand behind its public pronouncements:

[T]he legacy INS comments in the supplemental information to the . . . regulation are not legally binding on USCIS. . . .

[E]ven where an agency memorandum or General Counsel opinion is publicized and discussed in a widely circulated immigration periodical, the document will not be considered as a rulemaking that a petitioner may rely on.

So the lesson here is that every time a lawyer or a stakeholder is tempted to rely on a USCIS web posting, press release, memo, press conference, answer in a liaison meeting or other utterance (except for published final rules and decisions designated as precedent), we should remember that the USCIS's word is not its bond. Don't risk your law license or your client's immigration case on the undeserved expectation that the government will keep its word.

There oughta be a law that administrative agencies are bound by an individual's reasonable reliance on a clearly worded statement issued by that agency, even if some bureaucrats might later find it convenient to repudiate its original pronouncement.

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