Apology in Camouflage: DOL Throws in the Towel on its Blanket Audit of Fragomen
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. --------