Cyrus Mehta

Top Ten Most Viewed Posts on the Insightful Immigration Blog in 2020

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Thank you for reading and supporting The Insightful Immigration Blog.  Listed below are the top 10 most viewed blogs that were published in 2020.  While these are the 10 most viewed blogs, each blog is a carefully crafted gem, and we invite you to read all of them. Blogs from previous years continued to be widely read in 2020.

2021 ushers in a new dawn with the end of the Trump administration’s hostile policies towards immigrants. We covered much of President Trump’s policies in our blogs, most notably the ban on immigrants and nonimmigrants, and also commented on many of the successful court challenges thwarting or delaying their implementation. Indeed, one of the bright spots was that the courts in 2020 did not allow the Trump administration to get its way, whether it was on rescinding DACA or gutting the H-1B visa program through regulations that provided no advance notice.

In addition to Trump’s cruel immigration policies, Covid-19 also struck in 2020 and disrupted the world. Trump weaponized Covid-19 as a pretext to continue putting road blocks on immigration and asylum. The pandemic also adversely impacted the status of foreign national workers who lost their jobs or had to work under modified terms as well as the ability of green card holders to maintain permanent residence in the US. Our blogs addressed novel issues arising from Covid-19 regarding protecting the status of nonimmigrant workers, ethical issues for attorneys, and how green card holders could still assert they had not abandoned permanent residence even though they were forced to remain outside the US due to Covid-19.  We also wrote on how remote work impacted visa status, as well as how many immigration attorneys were still forced to appear in court, attend interviews for clients, and process and file paper based applications in their offices notwithstanding the risks posed by Covid-19.

The incoming Biden administration ushers in a new dawn on immigration in 2021. President Biden, in sharp contrast to Trump, has loftily proposed big and generous ideas on immigration and we hope that he will live up to these promises.  Our blogs have proposed ideas on how the Biden administration can improve our immigration system through executive actions, which, in addition to rescinding Trump’s actions, can also improve the immigration system and provide relief to many.

A new dawn for immigration in 2021

A new dawn for immigration in 2021 (Photo by Cyrus Mehta)

Ultimately, true and meaningful reform can only come through Congress. If Congress remains divided when Biden becomes president it will be much harder to push through badly needed reform such as expanding the employment and family based preferences so that would-be immigrants with approved petitions need not be waiting in decades long backlogs. While advancing filing dates in the visa bulletin, like what was done in October 2020, was salutary and allowed tens of thousands of skilled workers to file adjustment of status applications, which we blogged about, that was no substitute for Congressional action that can end discriminatory country quotas and infuse more visas into the system.

Finally, we also look forward to reform in the asylum system, the immigration courts, and due process for noncitizens, which the Trump administration disgracefully curtailed to such an extent that Lady Liberty seemed out of place and at odds with the long cherished idea that America is a nation of immigrants and a beacon for the world’s oppressed.

We look forward to blogging in 2021, albeit on different themes, and wish all our readers a safe and happy New Year. Below are the Top 10 viewed blogs of 2020:

  1. Downgrading from EB-2 to EB-3 under the October 2020 Visa Bulletin
  2. FAQ for Green Card Holders During the Covid-19 Period
  3. Frequently Asked Questions on Filing a Downgrade EB-3 Petition under the October 2020 Visa Bulletin
  4. FAQ Relating to Skilled Workers in the Green Card Backlogs During COVID-19
  5. Proposal for the Biden Administration Using the Dual Date Visa Bulletin to Allow the Maximum Number of Adjustment of Status Filings
  6. FAQ on Changes in Salary and Other Working Conditions for Nonimmigrant Workers in L-1, O, TN, E and F-1 Status Due to Covid-19
  7. Proposal for the Biden Administration to Reduce Backlogs: Count the Family Together so that they may Stay Together
  8. Killing the H-1B Visa Also Kills the US Economy
  9. What if the Job Has Changed Since the Labor Certification Was Approved Many Years Ago
  10. LCA Posting Requirements at Home During Covid-19 Pandemic: Do I Post on the Refrigerator or Bathroom Mirror

 

 

Cyrus Mehta

Innova Solutions v. Baran: Computer Programmer is a Specialty Occupation Under the H-1B Visa

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By Cyrus D. Mehta & Kaitlyn Box*

On December 16, 2020, the Ninth Circuit issued its opinion in Innova Solutions, Inc. v. Baran,  which involved a technology company, Innova, that wanted to hire an Indian employee in the specialty occupation of Computer Programmer, and filed an H-1B petition on his behalf. Innova Solutions, Inc. v. Baran, No. 19-16849, *4.  USCIS denied the petition stating that Innova failed to show that the position of Computer Programmer is a specialty occupation. Id. at 5-6. USCIS relied heavily on the Department of Labor’s Occupational Outlook Handbook (OOH), which states that “[m]ost computer programmers have a bachelor’s degree”, thereby implying that some individuals employed as computer programmers do not have bachelor’s degrees. Id.

In a prior blog, we have discussed the outcome of the Innova Solutions, Inc. v. Baran case at the District Court level. The U.S. District Court for the Northern District of California heard the case in 2018, and held that the position of Programming Analyst, categorized under the OOH’s Computer Programmer classification, did not qualify as a specialty occupation because the OOH’s description for Computer Programmer stated only that “most” Computer Programmers have a bachelor’s degree but “some employers hire workers with an associate’s degree”. Innova Sols., Inc. v. Baran, 2019 U.S. Dist. LEXIS 134790, *17.

The Ninth Circuit reversed the District Court’s grant of summary judgment to USCIS, and remanded the case, holding the USCIS’ denial of the visa was arbitrary and capricious. The court first examined the OOH language, holding that USCIS’s denial of the petition on this basis was arbitrary and capricious. Innova Solutions, Inc. v. Baran, No. 19-16849, *8. The court compared the OOH statements that “[m]ost computer programmers have a bachelor’s degree in computer science or a related subject” and a bachelor’s degree is the “[t]ypical level of education that most workers need to enter” with the computer programmer occupation to the regulatory language at 8 C.F.R. 214.2(h)(4)(iii)(A), which requires that a bachelor’s degree “normally” the minimum education required for the occupation. Id. The court found there to be no appreciable difference between these two descriptions, stating that: “[t]here is no daylight between typically needed, per the OOH, and normally required, per the regulatory criteria”. Id. Given the agreement between the two requirements, the court found that USCIS’s denial of the visa based on the OOH criteria was arbitrary and capricious, lambasting USCIS’s reasoning as “beyond saving” and stating that “there is no “rational connection” between the only source USCIS cited, which indicated most computer programmers have a bachelor’s degree and that a bachelor’s degree is typically needed, and USCIS’s decision that a bachelor’s degree is not normally required”. Id. at *9.

The court was similarly unpersuaded by USCIS’s argument that OOH language stating that “some employers hire workers with an associate’s degree” indicates that a bachelor’s degree is not normally required for the position. Id. at 10. In fact, the court reasoned, this language is entirely consistent with the regulatory criteria, which requires only that a bachelor’s degree “normally”, and not “always”, be required for entry into an occupation. Id. The court stated that “[w]hile agencies are entitled to deference in interpreting their own ambiguous regulations, this regulation is not ambiguous and deference to such an implausible interpretation is unwarranted, relying on Kisor v. Wilkie, 139 S. Ct. 2400, 2414 (2019), which limited Auer deference to “genuinely ambiguous” regulations. Id. at 10-11.

The court also held that USCIS’s denial was arbitrary and capricious because it mischaracterized the language in the OOH. Id. at *12-13. The USCIS decision claimed that the OOH stated that “the [computer programmer] occupation allows for a wide range of educational credentials, including an associate’s degree to qualify”, when in fact it states merely that “[m]ost computer programmers have a bachelor’s degree in computer science or a related subject; however, some employers hire workers with an associate’s degree.” Id. at 13. While it acknowledged that “a factual error is not necessarily fatal to an agency decision”, the court found USCIS’s misconstruction of the OOH language to be arbitrary and capricious in this instance because whether or not computer programmers normally possess a bachelor’s degree was central to USCIS’s decision. Id.

Finally, the court found USCIS’s decision arbitrary and capricious because it failed to consider key evidence. Id. at *14. The court reasoned that OOH language stating that a bachelor’s degree is the “[t]ypical level of education that most workers need” to become a computer programmer was prominently featured on the OOH landing page and of central importance to the USCIS’s determination, but the USCIS failed event to mention this language in its decision. Id.

While the Ninth Circuit’s decision in Innova Solutions is doubtless a victory for U.S. technology companies who employ foreign workers as computer programmers, the decision has broader implications, as well. For one, the decision is a refreshing rebuttal to USCIS’s longstanding practice of challenging computer programming on specialty occupation grounds. On March 31, 2017, the USCIS issued a policy memorandum that rescinded earlier 2000 guidance that acknowledged the position of computer programmer as a specialty occupation. The 2017 policy memorandum relied on the current language in the OOH as basis for rescission of the earlier guidance. Importantly, the Ninth Circuit in Innova Solutions held that this same language from the OOH does not contradict the regulatory criteria at 8 C.F.R. 214.2(h)(4)(iii)(A), effectively undercutting the USCIS’ rationale for issuing the 2017 memorandum.

Additionally, Innova Solutions represents the first recent reported circuit court decision in which the court has ruled in favor of the H-1B petitioner. Other landmark circuit court cases have historically favored the USCIS. In Defensor v. Meissner, for example, the Fifth Circuit ruled against a medical staffing agency that had filed H-1B petitions on behalf of the nurses it employed on the grounds that the end hospital where the nurses were placed was really the supervising entity, and reasoning that no evidence suggested these hospitals required the nurses to possess bachelor’s degrees.  Defensor v. Meissner, 201 F.3d (5th Cir. 2000). In Defensor, the court held that the held that the criteria in 8 CFR § 214.2(h)(4)(iii)(A) are merely necessary conditions, rather than necessary and sufficient conditions, to establish that a position is a specialty occupation, a decision the USCIS often cites in H-1B RFEs. Id. Similarly, in Royal Siam Corp. v. Chertoff, the First Circuit ruled in favor of USCIS’s position that a position which requires a degree in a specific specialty related to the duties and responsibilities of the job should be accorded more weight than a generic degree requirement. Royal Siam Corp v. Chertoff, 484 F.3d 139 (First Cir. 2007). Innova Solutions is thus a unique and welcome victory for H-1B petitioners in the circuit courts.

The Ninth Circuit’s decision is in line with a number of recent decisions in lower courts in which, in contrast to most circuit court cases, H-1B petitioners have successfully challenged USCIS’s denial of H-1B petitions on the grounds that the position in question did not qualify as a specialty occupation. See, e.g., Taylor Made Software, Inc. v. Cissna, Civil Action No. 2019-0202 (D.D.C. 2020); Relx, Inc. v. Baran, 397 F. Supp. 3d 41 (D.D.C. 2019); Next Generation Technology v. Johnson, 15 cv 5663 (S.D.N.Y. 2017). In Innova Solutions, the Ninth Circuit reminds the USCIS, as the numerous lower court decisions have done, that the OOH may not be used as a Holy Grail to deny H-1B petitions that are based on well-reasoned arguments by the petitioner and corroborated by substantial evidence, including expert opinions.

Finally, one cannot overstate the growing importance of Kisor v. Wilkie in limiting the USCIS’s ability to exercise broad discretion in interpreting its own regulations under Auer precedent. Auer v. Robbins, 519 U.S. 452 (1997). In its decision in Innova Solutions, the court acknowledges that Auer deference applies only to genuinely ambiguous regulations, which 8 C.F.R. 214.2(h)(4)(iii)(A) is not. The court’s decision reminds the USCIS that Auer deference is not a broad license to deny meritorious H-1B petitions.

*Kaitlyn Box graduated with a JD from Penn State Law in 2020, and works as a Law Clerk at Cyrus D. Mehta & Partners PLLC.

Cyrus Mehta & Kaitlyn Box*

Two New York Ethics Opinions Instruct When Lawyers Can Withdraw from Representing a Client in Court During COVID-19

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By Cyrus D. Mehta and Kaitlyn Box*

In an earlier blog, we discussed ethics for immigration lawyers during the COVID-19 pandemic. Another ethical dilemma, addressed by two recent ethics opinions from the New York City Bar and the New York State Bar, arises when a lawyer is required to make an in-person court appearance, but is reluctant to go to court for fear of contracting COVID-19 or out of fear of for passing onto the infection to others. These ethics opinions are directly relevant to immigration lawyers who need to make appearances in immigration court on behalf of clients as well as as appear on behalf of clients for adjustment of status and naturalization interviews at USCIS.

On December 2, 2020, the New York City Bar Professional Ethics Committee issued Formal Opinion 2020-05: A Lawyer’s Ethical Obligation When Required to Return to Court During a Public  Health Crisis. The opinion deals with a New York lawyer’s duty to appear physically appear in court during the COVID-19 pandemic. The opinion acknowledges that some lawyers may be concerned about physically returning to court during the pandemic. Lawyers who are more susceptible to COVID-19 due to health conditions, or those who care for a medically vulnerable family member worried about appearing in court in person while the pandemic remains a threat. The opinion first examines whether a lawyer’s health concerns could create a personal conflict of interest. According to New York Rules of Professional Conduct (the “Rules”) 1.7(a)(2), a personal conflict of interest exists where a reasonable lawyer would conclude that “there is a significant risk that the lawyer’s professional judgment on behalf of a client will be adversely affected by the lawyer’s own financial, business, property or other personal interests.” The opinion reasons that “a reasonable lawyer would conclude that there is a significant risk that the lawyer’s professional judgment on behalf a client would be compromised by the lawyer’s personal interest in not wanting to resume in-person court appearances”. One can imagine scenarios, like those outlined in the opinion, in which a lawyer who is extremely anxious about contracting the COVID-19 virus would avoid pursuing a remedy that would involve court appearances, even though this might be the best course of action for his or her client.

However, even if a lawyer’s health concerns create a conflict of interest, that conflict may be waived if the lawyer nonetheless believes that he or she “will be able to provide competent and diligent representation”. Rule 1.7(b)(1). The opinion recommends that a lawyer who has reservations about appearing in court in person, but believes that he or she can still competently and diligently represent the client though other means like video appearances, should disclose the conflict and obtain a waiver from the client, provided that the client is comfortable with the lawyer’s proposed alternatives. If, however, the lawyer’s health concerns make it impossible to provide competent and diligent legal representation, then the conflict is not waivable.

If a lawyer believes that a conflict of interest is not waivable or is not able to obtain a waiver from the client, the lawyer must withdraw if the conflict will result in her representation of the client falling below the “competent and diligent” standard. See Rule 1.16(b)(1).  This rule requires the lawyer to withdraw if “the lawyer knows or reasonably should know that the representation will result in a violation of these Rules or of law.” Although Rule 1.16 allows permissive withdrawal of representation under Rule 1.16(c), this ethics opinion insists that a lawyer must withdraw based on the non-waivable conflict of interest pursuant to Rule 1.16(b)(1).   The opinion also recognizes that when the lawyer is before a tribunal, under Rule 1.16(d) the lawyer must seek permission from the court to withdraw, and the court may still require the lawyer to continue with the representation. The opinion states that the lawyer “should obtain a clear and unequivocal order from the tribunal and consider whether to appeal or comply with the order.” If the lawyer is permitted to withdraw by the court, the lawyer must take reasonable steps to avoid foreseeable prejudice to the client. See Rule 1.16(e).  Finally, the opinion also advises that law offices and lawyers with supervisory responsibilities must take reasonable steps  to address the ethics issues detailed in the opinion.

2.3(i)(ii) of the EOIR Practice Manual lays out the requirements for a lawyer who wishes to withdraw from representation in immigration court. The lawyer must first submit to the court a written or oral motion to withdraw. See 8 C.F.R. § 1003.17(b). The EOIR Practice Manual specifies what information a motion to withdraw must contain, including the reason for the withdrawal and a statement concerning the lawyer’s efforts to obtain consent from the client to withdraw. The immigration court will then consider the motion, taking special consideration of the time remaining before the client’s next hearing and the reason the attorney has put forth for wishing to withdraw. Until the immigration court has granted the attorney leave to withdraw, the attorney must continue to diligently and competently represent the client, including attending any scheduled hearings.

An earlier New York State Bar Association ethics opinion on October 8, 2020 similarly concluded that a lawyer may withdraw when health concerns create a situation where “the lawyer’s mental or physical condition renders it difficult for the attorney to carry out the representation effectively.”  See NYSBA Ethics Op. 1203 (2020). The New York City Bar Professional Ethics Committee’s opinion reaches a parallel conclusion, but emphasizes that a lawyer may withdraw if her fear of contracting COVID-19 prevents her from providing competent and diligent representation to her client. The opinion concludes by pointing out that, even if a lawyer wishes to withdraw, she may still be required to continue representation if so ordered by the court under Rule 1.16(d), or if withdrawal would harm the client.

NYSBA Ethics Opinion 1203 involved a similar inquiry from an attorney who was required to make an in-person  appearance in immigration court during the pandemic, but was concerned about contracting the virus or infecting a family member, given the lack of safety protocols that the immigration court had implemented at the time. The opinion addressed the question of whether an attorney might withdraw if continued representation would endanger the lawyer’s health or safety. The opinion concluded that the lawyer could withdraw, with permission from the court, reaching a similar conclusion to the New York City Bar Professional Ethics Committee’s opinion. The NYBSA ethics opinion first points to  Rule  1.16(b), although this appears to be a scrivener’s  error as the opinion is likely referring to Rule 1.16(c)(9), which permits withdrawal when “the lawyer’s mental or physical condition renders it difficult for the lawyer to carry out the representation effectively.”  The standard, according to the NYSBA, is that effective representation becomes ‘difficult,’ not impossible. The NYSBA provides examples of how the lawyer’s fear of COVID-19 might “subtly but powerfully” undermine the representation of a client in immigration court in a number of ways.  The lawyer may be reluctant to spend time with the client in-person to understand the client’s case and communicate the options. The lawyer might also be inclined to consent to a premature disposition of the case, even though prolonging the case through additional appearances and motions could lead to a more favorable outcome. The lawyer may also try to complete the hearing quickly without calling witnesses to testify or waiving cross examination of government witnesses.

While the New York City Bar’s opinion centers around the mandatory ground under Rule 1.16(b)(1), based on a non-waivable conflict of interest,  the NYSBA opinion invokes the permissible withdrawal ground ostensibly under Rule 1.16(c)(9) when “the lawyer’s mental or physical condition renders it difficult for the lawyer to carry out the representation effectively.” The opinion also invokes two additional permissible grounds for withdrawal:   Rule  1.16(c)(1) if the “withdrawal can be accomplished without material adverse effect on the interests of the client” and Rule 1.16(c)(10) if the client “knowingly and freely assents to termination of the employment.”

The opinion concludes that a lawyer caught in this situation may seek to withdraw from representation, provided the lawyer has permission from the court and withdraws in a manner that does not prejudice the client’s interests and has permission from the court. Rule 1.16(d) requires lawyers to seek permission from the court before withdrawing, and forbids them from withdrawing at all if the court declines to allow withdrawal.

An immigration judge might refuse to allow a lawyer to withdraw because of a fear of contracting COVID-19 if alternatives, such as appearances by telephone or video, would allay the lawyer’s health concerns and allowed for continued representation. EOIR has attempted to offer alternatives to in-person hearings to mitigate health concerns. All EOIR courtrooms are equipped with telephones and some with video equipment, so hearings conducted by telephone or video conference may be appropriate alternatives in many cases.  In July 2020, The AILA New Jersey Chapter filed a complaint in district court seeking an injunction to prevent the Newark Immigration Court from forcing immigration attorneys to appear for in-person court proceedings during the pandemic, but the U.S. District Court declined to grant the injunction on the grounds that EOIR’s policy of offering a videoconferencing alternative sufficiently mitigated the harm plaintiffs would suffer if forced to appear in person. A November 6, 2020 EOIR policy memo memorializes EOIR’s practice of offer telephonic and video hearings in lieu of an in-person hearing where appropriate.

Lawyers must carefully consider whether they may be able to competently and diligently represent a client through a telephonic, or video hearing if they are reluctant to attend a live hearing. Attending the hearing in person may have advantages where there are difficult and complex evidentiary issues and where the client’s credible testimony is crucial for a successful outcome, but the lawyer must make that determination when deciding to opt for remote representation. There are times when the immigration court may force a remote hearing on all the parties.  If the client chooses a live hearing when it is an option, the lawyer must abide by the client’s wishes. If a lawyer’s request to withdraw is declined by an immigration judge, a lawyer should try to find alternative approaches without compromising competent representation. If the immigration judge is not inclined to grant a continuance, one possible approach is to arrange to have another competent lawyer within the lawyer’s firm attend the hearing. A solo practitioner may arrange for a competent colleague to appear at the hearing. These arrangements should only be undertaken after obtaining the client’s informed consent and ensuring that the client will still be competently represented. It is hoped that the two New York ethics opinions would persuade an immigration judge to allow an attorney to withdraw from representation either on the ground that it would create a personal conflict of interest or when the lawyer’s mental or physical condition renders it difficult for the lawyer to carry out the representation effectively.

While many immigration courts remain closed, or close whenever there is a COVID-19 incident, USCIS has been more regularly conducting in person adjustment and naturalization interviews. A lawyer would face a similar dilemma in deciding to attend an adjustment of status or naturalization interview on behalf of a client. The current USCIS policy is to allow the lawyer to represent the client via telephone while the client appears in person for the interview. In this case too, the lawyer must ensure that representing the client via telephone will not compromise the representation. It is easier for a lawyer to withdraw from representation before the USCIS than immigration court, but whether the lawyer has withdrawn from representation of a client for an in person appearance in immigration court or an in person appointment at USCIS, it is important that the lawyer follows Rule 1.16(e), which is to “take steps, to the extent reasonably practicable, to avoid foreseeable prejudice to the rights of the client, including by giving reasonable notice to the client, allowing time for employment of other counsel, delivering to the client all papers and property to which the client is entitled, promptly repaying any part of a fee paid in advance that has not been earned and complying with applicable laws and rules.”

*Kaitlyn Box graduated with a JD from Penn State Law in 2020, and works as a Law Clerk at Cyrus D. Mehta & Partners PLLC.

[This blog is for informational purposes and should not be relied upon as a substitute for legal advice.]

 

 

Cyrus Mehta

Justice Department’s Discrimination Complaint Against Facebook Chills Employer’s Ability to Legitimately Sponsor Skilled Foreign National Workers for a Green Card

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The Department of Justice’s complaint claiming that Facebook discriminated against US workers even when it followed DOL regulations for sponsoring foreign national workers is troubling. It renders every employer vulnerable to charges of discrimination each time it files a labor certification on behalf of a foreign national worker.

When an employer wishes to sponsor a foreign national for a green card, it is required to test the domestic labor market for qualified workers before a PERM labor certification is approved. Labor certification is the first step in the employment sponsored green card process.  It is rather odd that when Facebook followed the DOL rules regarding recruitment for a labor certification, another agency of the federal government, the Immigrant and Employee Rights (IER) Section of the Department of Justice (DOJ) accuses it of discriminatory practices under INA 274B(a)(1).  Facebook was not accused of violating the DOL rules. Under the DOL rules, if the employer finds a qualified  US worker after testing the labor market, the employer cannot go ahead with the labor certification and is not required to hire the US worker and terminate the foreign worker who already holds the job often on an H-1B visa.  The IER has accused Facebook of discrimination for not hiring US workers for advertisements that were related to a labor certification filed on behalf of a foreign national worker. The labor certification process requires the employer to test the US labor market with respect to an application filed on behalf of a foreign worker, and contrary to the allegations in the IER complaint, is not set up as a program for recruiting US workers.

The IER complaint says at paragraph 24 that “in conducting recruitment, employers must also engage in a good faith search that closely resembles the employer’s normal recruiting process.”  It cites Matter of Am. Specialty Pharmacy, 2016-PER-00016, 2019 WL 2910815 (BALCA 2019). The IER accuses Facebook of implementing a recruitment process intentionally designed to deter US workers from applying, thus discriminating against US workers because of their citizenship status in violation of INA 274B(a)(1)(A). The complaint states that Facebook uses recruitment methods for PERM labor certifications that were different than those it employs for its regular positions. For example, Facebook requires resumes to be sent by postal mail for advertisements related to labor certifications but for open market positions they will accept resumes by e mail. Facebook also does not post advertisements on their website for labor certification positions but for their other positions they do post on their website.

However, Matter of Am. Specialty Pharmacy, supra, which IER cites in its complaint,  just says that: “We have interpreted this regulation as placing a burden on the Employer to conduct a good faith recruitment effort.”  It cites East Tennessee State University, 2010-PER-00038, slip op. at 11 (Apr. 18, 2011) (en banc), which does go into some more detail, but not in the direction that IER suggests. BALCA stated in East Tennessee State University that “employers seeking permanent labor certification may have to conduct their recruitment in a manner different than they would normally in order to ensure that the position is clearly open to all qualified U.S. workers.” In a 2008 Guidance Memo, the DOL also confirmed that “given 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.”

DOL also insists on recruitment practices that have no bearing on real world recruitment such as placing print advertisements in two Sunday newspapers even when most employers and job seekers do not rely on the print classified sections any longer. Indeed, most of the advertisements in the classified Sunday edition of the NY Times have the look and feel of labor certification advertisements. Although the IER accuses Facebook of requiring applicants to respond by postal mail rather than online, when its non-labor certification advertisements allow for online responses from applicants, that in itself is not a violation of the DOL rules, and DOL has already conceded that the employer’s labor certification recruitment deviates from normal labor practices. While in hindsight, Facebook should have done more to reconcile its labor certification advertisements with its real world advertisements, the labor certification process requires the employer only to test the labor market and not to use it to hire US workers. The DOL imposes other requirements on an employer during labor certification recruitment, which are unimaginable in real world recruitment. If a US worker applicant does not respond to the employer’s invitation to an interview, the employer must go the extra mile to demonstrate that it did indeed contact the applicant who never showed up by sending up a follow up e mail or letter to the uninterested candidate, and must prove that this candidate actually received the communication!  Even when the US worker applicant was interviewed and rejected, the employer must prove that it actually made contact with the applicant.  Thus, even if an employer mirrors its real world recruitment with its labor certification recruitment,  and even goes beyond, it will still be vulnerable to a citizenship discrimination claim by the IER because labor certification recruitment inherently requires a good faith test of the labor market, and not to hire US workers,  before the labor certification can be filed and certified by the DOL.

Rather than penalize an employer for following the rules set forth in 20 CFR 656, Congress,  the administration, or both, could change the rules governing the labor certification process to make them more rational and comport with real world practices.  In a 2008 article Walking The High Wire Without A Net – The Lawyer’s Role In The Labor Certification Process, Bender’s Immigration Bulletin, February 1, 2009,  Gary Endelman and I noted how far removed the labor certification process truly is from an employer’s real world recruitment practices.  Although the labor certification process requires an employer to conduct a “good faith” test of the US labor market to determine whether US workers are qualified or available for the position held by the foreign national, the very notion of “good faith” seems oddly out of place when used with reference to a recruitment effort that achieves its desired objective by failing to locate any qualified job applicants. Only in the labor certification world do you win by losing. Unable to utilize real world recruitment standards, compelled to base evaluations upon the entirely artificial concept of “minimal qualifications” that does not exist outside the cordon sanitaire of 20 CFR §656, wedded to an inflexible job description that can never change regardless of an employer’s business needs or a worker’s evolving talents, and effectively prohibited from taking into consideration the very subjective character traits whose presence or absence is the most reliable predictor of effective job performance, the labor certification process is fundamentally at odds with the very economic system it allegedly seeks to serve.

It is reiterated that an employer is under no legal obligation to hire a qualified applicant at the end of the process. If the employer finds a U.S. worker who is qualified for the position, the labor certification dies. In other words, the employer cannot file the labor certification on behalf of the foreign national worker.  This makes sense as it would be rather cruel to fire the foreign worker on a temporary work visa like the H-1B, which can extend for many years, and replace them with the US worker.  Even if the employer hires this minimally qualified US worker, and files the labor certification on behalf of the foreign worker, the employer may be found to be in violation as a result of “diversion.” The Board of Alien Labor Certification Appeals (BALCA) has held that a US applicant cannot be diverted to another position, even a more senior position. See Engineering Technology, Inc.,89-INA-10 (BALCA 1990), Sam’s Exxon, 91-INA-362 (BALCA 1992). BALCA has found “diversion” even when the U.S. worker was hired for the same position as the foreign national worker where the employer was unable to establish multiple openings. Aloha Airlines, 91-INA-181 (BALCA 1992).

The statutory basis for labor certifications is provided in §212(a)(5) of the Immigration and Nationality Act (“INA”). Under INA §212(a)(5), an alien is deemed “inadmissible unless the Secretary of Labor” certifies, inter alia, that “there are not sufficient workers who are able, willing, qualified…and available at the time of application” among the U.S. workforce. A plain reading of INA §212(a)(5) does not in any way suggest that an employer must seek to recruit U.S. workers in order for the Secretary of Labor to certify that there are a lack of U.S. workers who are qualified and willing at the time of the application. Interestingly, INA §212(a)(5) is silent about requiring the employer to advertise or to establish that it advertised the position without reference to unduly restrictive requirements. It appears that the Department of Labor has created out of whole cloth the current system it enforces against U.S. employers. Gary Endelman previously wrote for the National Foundation for American Policy: “There was no mention of individualized recruitment in the proposed labor certification regulations on November 19, 1965, or the final version of these same implementing rules that came out on December 3, 1965. There was no sense that employers had to advertise; the availability of U.S. workers, or their nonavailability, was based solely on statistics as embodied in Schedules A and B, respectively.”

In discussing the labor certification requirement in the 1965 Amendments,8 Senator Edward Kennedy (D-MA) stated:

It was not our intention, or that of the AFL-CIO. that all intending immigrants must undergo an employment analysis of great detail that could be time consuming and disruptive to the normal flow of immigration. We know that the Department of Labor maintains statistics on occupations, skills, and labor in short supply in this country. Naturally, then, any applicant for admission who falls within the categories should not have to wait for a detailed study by the Labor Department before his certificate is issued …(W]e would expect the Secretary of Labor to devise workable rules by which he could carry out his responsibilities under the law without unduly interrupting or delaying immigration to this country. The function of the Secretary is to increase the quality of immigration, not to diminish it below levels authorized by the law.

Thus, one of the key drafters of the bill, Senator Kennedy, never mentioned nor contemplated the need for the individualized, wasteful, and unreal recruitment that the DOL has imposed on employers. Indeed, after all this recruitment, the DOL only requires the employer to test the U.S. labor market. In other words, employers must prove a negative, namely, that there are no minimally qualified workers for the position. The employer is not required to hire minimally qualified workers. If the employers find qualified workers, they are precluded from filing the labor certification application on behalf of the foreign national worker. Through this process, the DOL forces employers to make pawns of U.S. worker applicants by advertising the position, having them apply for the position, interviewing them, and in the end, not encouraging their hire even if the employer wants them in addition to the foreign national worker.

And now the complaint against Facebook brought by a sister federal agency further highlights the contradictions in the labor certification program.  The IER complaint is aimed at discouraging employers from sponsoring skilled foreign national workers for permanent residence lest they be accused of  citizenship discrimination after following the labor certification process. Whatever may be the motivation behind this action – and it is not unreasonable to speculate that it may be linked to President Trump’s dislike for Facebook and Twitter – the end result is that skilled foreign national workers deserving of green card sponsorship by a US employer bear the brunt,  and America loses the most if they are forced to leave.