The U.S. Department of Labor (DOL) has retreated once again from the silly summer brouhaha it sparked on June 2 with the issuance of an ill-advised press release announcing the audit of all corporate clients of the Fragomen law firm.  As readers of this blog know from my previous posts (first, second and third), the DOL has been roundly criticized for its initial broadside against attorney participation in the recruitment process required under PERM labor certification regulations. 

First, the agency said in its June 2 press release that ”[w]here an employer does not normally involve immigration attorneys in its hiring process, there is no legitimate reason to consult with immigration attorneys before hiring apparently qualified U.S. workers who have responded to recruitment required by the permanent labor certification program [italics added].”

Next, the DOL backtracked.  On June 13 it issued a “Clarification.”  Under the agency’s new guidance, DOL recanted and discovered legitimate reasons for consultation with counsel, but  a new concept, “dissuasion,” was not allowed:

After the evaluation of applications by the employer has been completed, the employer may consult with its attorney or agent about the implications of its qualification determinations on the labor certification application. Those consultations can encompass the question of whether applicants who were found by the employer to be unqualified were rejected for lawful, job related reasons. Under no circumstances, however, should an attorney or agent seek to dissuade an employer from its initial determination that a particular applicant is minimally qualified, able, willing and available for the position in question [italics supplied].

On August 29, however, the DOL issued a “Restatement” based on public feedback.  The Restatement cites the June 2 press release, a June 4 FAQ, and the June 13 Clarification (labeling all three as the “Consideration Guidance Documents”) and then (unceremoniously and inexplicably) junks them, noting that the Restatement “will supersede [italics in original]” all three documents.  In the Restatement, DOL now concludes:

Attorneys (and, to the extent it is consistent with state rules governing the practice of law, agents) may . . . provide advice throughout the consideration process on any and all legal questions concerning compliance with governing statutes, regulations, and policies.

As can be see from the Restatement, the rule prohibiting attorney dissuasion is nowhere to be found.  I had argued in a New York Law Journal article, co-authored with Ted Chiappari, that the ban on dissuasion made no sense :

The Labor Department cites no authority for this “dissuasion” restriction on counsel’s role. A simple hypothetical illustrates why a ban on dissuasion is unwise. Suppose an employer, fearing the DOL’s enforcement authority, mistakenly believes that the business must provide extensive, burdensome and costly training to an unqualified applicant, and therefore considers that applicant qualified. The lawyer for the employer could legitimately point out that the DOL regulation would treat that applicant as qualified only if the training could be conducted in a “reasonable” time. The lawyer, acting in the best interests of its employer client, could rightfully point out that such unreasonable training burdens and delay are not required by law or regulation. It is unlikely in this scenario that any court would hold that the lawyer acted improperly by seeking to dissuade an employer from its initial determination concerning the applicant’s qualifications.

Despite its silent retreat on dissuasion, the DOL persists, however, in perpetuating the confusion that the agency itself has created. It offers two flatly inconsistent statements that (I predict) will require yet another published change in interpretation (will they call the next one a “Regurgitation”?):

[G]iven that the permanent labor certification program imposes recruitment standards on the employer that may deviate from the employer’s normal standards of evaluation, the Department understands and appreciates the legitimate role attorneys and agents play in the permanent labor certification process. . . .

In evaluating a labor certification application, the Department will look carefully at the manner in which the employer reached its determination that there are no qualified, available, able and willing U.S. workers, including scrutinizing the manner in which the decision was made and whether or not the employer deviated from its normal course of business in evaluating the qualifications of U.S. applicants [italics added].

The agency also offers a bureaucratic koan for all stakeholders (and perhaps a court or two) to ponder:  In what state(s) are agents allowed to offer legal advice?  Every state of the United States — so far as I know — prohibits the unauthorized practice of law.  Answer to the koan:  Only in the DOL’s state of denial.  

Thankfully, the Fragomen law firm has sued DOL and requested a court injunction.  The agency’s behavior in unleashing and then stirring up needless quandaries and controversies — while offering nary a hint of compliance with the Administrative Procedures Act — must be judicially chastised. Alternatively, or better yet, in conjunction with court action, Congress, when it returns from recess, should immediately convene oversight hearings to see how taxpayer dollars are being squandered by an agency run amok. 

Let’s keep our fingers crossed, and hope for the best.

In a perverse and delicious irony, the Bush administration, and Attorney General Michael Mukasey in particular, recently bestowed what may prove to be a helpful gift on foreign citizens in removal proceedings. The gift results from the AG’s refusal to fire or reassign any of the roughly 31 judges (18 of whom the New York Times has identified) who were hired in violation of civil service laws. As the Justice Department’s Inspector General reported, these judges, dubbed by Monica Goodling and her administration cronies as “Bushies,” though possessing scant immigration experience, were hired for their ideological or partisan activities or beliefs.

The gift, likely made without purposeful donative intent, is the opportunity to apply a theory variously known as the Hawthorne effect (based on an industrial performance study in the 1930s) or as I and others prefer to call it, the sentinel effect.

Although controversial, the sentinel effect holds that if you single out a group of people, make them feel special, and let them know you’re watching, their behavior improves in measurable ways.

Let’s suppose then that foreign citizens, aided by zealous immigration lawyers who use the sentinel effect, begin to single out the Bushie immigration judges. To apply the sentinel effect, lawyers should divide their clients’ cases into into two categories: (1) immigration cases not yet heard but assigned to a Bushie judge, and (2) immigration cases already heard by such a judge.

I outline the strategy and hint at the sentinel effect in a recent Op-Ed published by The Los Angeles Daily Journal:

[Category 1 cases]. In cases not yet heard, lawyers whose hearing is assigned to a Bushie immigration judge should file a motion for recusal. Even if the motion is denied, the assertion of error will be preserved for appeal, and the judge, in the meantime, will likely be on his or her best behavior in hearing the client’s requests for relief from removal. (Interestingly, one of the tainted judges has a 16 percent asylum denial rate, compared with a national average of 59.8 percent, according to TRAC Immigration, while another Goodling appointee has denied 90.7 percent of all asylum requests.)

In cases not yet heard, lawyers whose hearing is assigned to a Bushie immigration judge should file a motion for recusal. Even if the motion is denied, the assertion of error will be preserved for appeal, and the judge, in the meantime, will likely be on his or her best behavior in hearing the client’s requests for relief from removal. (Interestingly, one of the tainted judges has a 16 percent asylum denial rate, compared with a national average of 59.8 percent, according to TRAC Immigration, while another Goodling appointee has denied 90.7 percent of all asylum requests.)

Perhaps the IJ with the 16% asylum denial rate, anticipating that his conduct would come under scrutiny, applied the sentinel effect proactively. Perhaps the other improperly appointed judges — with asylum denial rates substantially above the national or city averages — might yet adjust their rate of asylum approval (consciously or unconsciously, who is to say?) if they know their conduct is under scrutiny.

The sentinel effect may also apply to cases already heard:

[Category 2 cases]. If the hearing or appeals process seems to have been prejudiced against the client based on the manifest behavior of an unlawfully hired judge, the immigration lawyer should consider filing a motion to reopen and remand for a new hearing before a judge not appointed through the illegal process. . . .

If the hearing or appeals process seems to have been prejudiced against the client based on the manifest behavior of an unlawfully hired judge, the immigration lawyer should consider filing a motion to reopen and remand for a new hearing before a judge not appointed through the illegal process. . . .

Lawyers with immigration clients who were harmed by the unlawful hires should also consider other strategies. These might include the submission of an online complaint to the assistant chief immigration judge for conduct and professionalism, MaryBeth Keller. In an egregious case, the lawyer of an immigration client held in detention or deported based on the dubious legal ruling of a demonstrably incompetent or biased immigration judge who was appointed illegally, might consider civil litigation alleging tort violations, especially if the detention was abusive, or resulted in injury or death for lack of proper medical care, or the deportation caused substantial harm to the client or the client’s family or business associates. In addition, a class action in federal district court for injunctive relief and damages may also be viable.

To be sure, I’m not suggesting that the controversial sentinel effect is a surefire winner. Based on the remarks in the New York Times by the leader of the IJs’ union, immigration lawyers should expect resistance if they challenge improperly hired judges:

Dana Marks, an immigration judge in San Francisco and the president of the judges’ union, said her organization opposed reassigning its new members.

“We are confident that many of the people hired under this process are excellent judges,” said Judge Marks, who was appointed in 1987, “and should not be penalized for having been hired under a process that they had no control over at the time, that some of them may not even have known was irregular or inappropriate [italics and bolding supplied].”

Still, the cardinal rule of ethics (never do anything you wouldn’t want proclaimed on the front pages of the nation’s newspapers) may apply here. Or, as the New York Times reported in yesterday’s article about a self-policing practice at the controversial clothing-optional San Onofre beach in California: “[i]f you wouldn’t do it in front of a police officer, don’t do it here.”

In other words, the sentinel effect may be one additional strategy to improve immigration-related judicial ethics and behavior. For other suggestions, see Prof. Michelle Benedetto’s excellent article (”Crisis on the Immigration Bench: An Ethical Perspective.”). Here is the abstract of her article:

The troubled status of the immigration court system has garnered much attention from scholars, appellate judges, and even the United States Attorney General. This article suggests a new lens through which to examine the acknowledged crisis in immigration courts: judicial ethics. Because the term judicial ethics encompasses a broad array of principles, the article narrows its focus to bias and incompetence on the part of immigration judges in the courtroom.

Immigration judges operate as a unique judiciary under the Executive Branch of government. An examination of the modern immigration court system, including inadequate disciplinary procedures for immigration judges, reveals that the existing structural crisis has substantial implications for judicial ethics. Evidence of biased and incompetent judicial conduct has been found in statistics showing inconsistent decisions and cases reviewed by circuit courts. Recognizing the breadth and severity of the problem, the Attorney General proposed new ethical Codes of Conduct for immigration judges in June 2007. However, the proposed Codes are weakened by their lack of specificity and enforceability. Accordingly, the article recommends reforms designed to encourage unbiased and competent judicial behavior. Implementation of these reforms will initiate the process of restoring the ethical integrity of the immigration bench.

The bottom line is that something must be done to improve the ethics and behavior of immigration judges in order to ensure procedural due process for foreign citizens in removal proceedings. The gift of the sentinel effect, then, may be one step in that direction.

I am sure this post will be controversial, and I welcome comments. 

I’ve long believed that the practice of immigration law, which has become dramatically more challenging since 9/11, is not for the dabbler (of course) but also poses a risk for attorneys who choose to specialize only in business immigration. The linked article, “A 3-Point Immigration Manifesto for Chief Legal Officers and Outside Counsel,” published this month by The International WhosWho of Corporate Immigration Lawyers, elaborates on my views. 

Ever since 1996 and the passage of the Illegal Immigration Reform and Immigrant Responsibility Act with its unlawful-presence penalties, the notion of a fixed line of demarcation between business or family-based immigration on one hand and litigation and removal defense on the other has been revealed as fiction.  Business immigration opponents of IIRAIRA succeeded in persuading Congress to “split the bill” and deal later with a set of harsh restrictions on employment-based immigration. As the ensuing years have demonstrated, that victory was phyrric indeed.

Only now do we see that the government agencies charged with the enforcement and administration of the immigration law, especially the conferral of immigration benefits, have taken an approach to interpretation of the INA that in too many instances is mean-spirited and inconsistent with legislative intent.  After all, bureaucrats need to justify their budgets.  It’s hard to catch terrorists, especially when the agencies rely on immigration forms that require truthful disclosure of illegal terrorist actions.  As 9/11 has taught, anyone willing to commit suicide would not be dissuaded from fibbing on a goverment form. 

So instead the agencies have taken to auditing the corporate clients of law firms for the sin of talking to their lawyers (DOL), radically reinterpreting L-1B specialized knowledge by using specious reasoning to jettison 18 years of post-IMMACT90 liberalization of this visa category (USCIS), appointing inexperienced immigration judges and members of the Board of Immigration Appeals for partisan or ideological reasons (EOIR) and eliminating administrative appellate rights of citizens to contest a claimed loss of nationality (State Dept.).

My hero in immigration law, the late Sam Williamson, as quoted in Faith and the Professions (at pp. 184-186), was mostly right when he said: “[The practice of immigration law is] a competent, involved, technical job in which, if you’re successful, you can see the consequences of your actions.  Also, I don’t like the government.”   

Unlike Sam, I like the government when it honors the Constitution and follows faithfully the statutes that Congress enacts.  I don’t like it when it crosses the line.  Immigration lawyers cannot be mere paper shufflers and online preparers of immigration forms.  They must be lawyers first and foremost.  It’s time to resist government encroachments that deprive our individual and business of clients procedural and substantive due process.  It’s okay to specialize, but don’t overlook that competent representation requires a broad array of substantive knowledge in the many nooks and crannies of U.S. immigration law and regulations.  As was correctly stated, for once, by a legacy INS spokesperson, “Immigration law is a mystery and a mastery of obfuscation, and the lawyers who can figure it out are worth their weight in gold.”  — INS Spokeswoman Karen Kraushaar (quoted in The Washington Post, April 24, 2001, in an article entitled “Md. [Maryland] Family Ensnared in Immigration Maze - After Changes in Law, Couple Faces Deportation”).

Chalk up one for USCIS and a Federal Judge.  The agency’s 17-month extension of F-1 optional practical training has survived a motion for preliminary injunction sought by the Programmers Guild.  U.S. District Judge Faith S. Hochberg issued an August 5 order finding a lack of causal connection and insufficient harm to sustain the claim of Guild’s members (out-of-work or underemployed engineers and programmers) that failure to grant a preliminary injuction would irreparably injure them. 

USCIS’s lawyers filed a nifty memorandum of law with apparently persuasive arguments, including a history of the agency’s pre-INA (Immigration and Nationality Act) authority to grant employment authorization to F-1 students.  The government’s memorandum contains language (italicized below) that may be useful for citation by the employer community, nonimmigrant applicants for benefits and the immigration bar in a request for compassion or expedited adjudication, agency recognition of extraordinary circumstances, comments to a proposed rule or arguments in support of legislation authorizing more H-1B visa numbers or recapture of unused employment-based immigrant visas:

Even were this Court to find Plaintiffs’ injuries “concrete and particular,” and even were the Court to find a viable causal nexus between Interim Final Rule [IFR] and Plaintiffs’ alleged injuries, Plaintiffs’ case for standing still fails because this Court cannot redress their injuries. Foreign students might still petition for H-1B visas; employers might still hire them. Jobs might be exported overseas as U.S. employers try to remain competitive in a global market. Practical training has existed for over sixty years, yet Plaintiffs, by their own admission, were “unemployed” or “underemployed” before promulgation of the IFR. Plaintiffs misdirect their attack on the extension of OPT within the Interim Final Rule.

* * *

Were the Court to issue a preliminary injunction, thousands of otherwise lawfully present students could be forced out of status. Notwithstanding the hardship this would work upon these students in forcing them to leave the country to apply for an H-1B visa, an injunction would have more serious consequences still. A student’s eligibility for OPT (and by extension, a change of status to an H-1B visa) depends upon maintaining lawful status. See 8 U.S.C. § 1258(a) (limiting changes of nonimmigrant status to aliens who have maintained lawful status). A preliminary injunction would force thousands of students out-of-status.

Were the Court to enjoin this IFR, and thrust thousands of students out-of -status, the enormous disruption would affect not only students and prospective employers, but other more collateral interests. Stripping lawful status away from these students would result in untold confusion [for] third parties and the public. The preliminary injunction Plaintiffs seek would not preserve the status quo, it would throw an orderly and predictable system into a chaotic mess, as neither students nor employers could be sure of who could work or when [italics supplied].

Turnabout is fair play.  Hoist the government on its own petard. (I’ll stop gilding the lily for now with trite chestnuts.)  

Remind them with their own words that insensitive rules and rulings result in extraordinarily harsh and irreparable consequences to human beings and American businesses.  If USCIS won’t listen to employers, foreign citizens and immigration lawyers, maybe they’ll listen to themselves.

The dog days of summer have arrived. Congress is on a five-week holiday, er, excuse me, a “Summer District Work Period,” as the House calls it. The economy is in the doldrums. Gross Domestic Product grew a feeble 1.9% in the second quarter of 2008 from 0.9% in the first quarter. Foreclosures and bankruptcies are on the rise. Homeowners face unaffordable energy bills for gas, home heating and electricity. Civilian unemployment in July rose to 5.7%, up from January’s rate of 4.9%.

Amid the ashes of bad economic news, an immigration phoenix arises – the “Regional Center” program under the Employment-Creation EB-5 category for immigrants who invest $500,000 or $1 million in enterprises that directly or indirectly create at least 10 American jobs. According to Invest in the USA (IIUSA), an association of USCIS-approved regional centers, the EB-5 regional center program is estimated to create 400,000 new jobs through immigrants’ investments of $20 billion over the next five years.

These jobs will be lost, however, because the Senate is in summer-snooze mode. The statutory provision authorizing the regional center program will sunset on September 30, unless Congress acts promptly. Expiration of regional-center program authorization will likely put a freeze on new I-526 approvals and designations of additional regional centers. More important, it will scare off potential EB-5 investors and new investment opportunities.

Before recessing, the House approved HR 5569, a five-year reauthorization of the EB-5 regional-center program. A companion bill in the Senate is mired in disagreement over renewal of the controversial E-Verify program (which does not expire until November 30) and horse-trading over bills on religious workers, the Conrad 30 J-1 doctor waiver program and family reunification.

The federal government worked weekends and took quick steps when Bear Stearns was set to collapse and when Fannie Mae and Freddie Mac needed Uncle Sam’s financial guarantees. Why doesn’t the Senate get off its hammock and jumpstart economic growth by the simple, uncontroversial expedient of reviving the EB-5 regional-center legislation?

[Disclosure: With Steve Yale-Loehr and Nelson Mamey (a lawyer who prefers real estate finance and development over law practice), I own a recently approved regional center in Southern California.]