Costly Immigrant Labor Certifications

Every new lawyer scrambles for work. So it seemed a fantastic development that a lawyer I had known decided he would retire, and asked me to substitute for him on his caseload of labor certifications.

Labor certifications allow the Department of Labor to temporarily certify a foreign worker to perform a specific job in the United States because an American cannot be found to do it. It requires the employer to advertise for U.S. workers at prevailing wages, noting who responded and why they were not hired, and submitting the results to DOL. If convinced that a U.S. worker cannot fill the job, the DOL will issue a labor certification for the alien worker, which in some circumstances can lead to a green card.

As soon as the files were transferred to my office, the client calls started coming in, and they wouldn't stop. The files had been sitting for months with little work, and quick review indicated that many should not have been filed in the first place. Many of the applicants sought certification for work that any employer could quickly find an American to do, and most applications had been denied without the client ever having been informed.

Appointments were made with each of them to explain either why their application had been denied or why they should consider its withdrawal. Papalay was the first to come in. When we broke the news that his application for a labor certification would almost certainly be denied and could not be rehabilitated, he asked, "Alright, but can you sue my employer to get back the $10,000 I paid him to go along with this?"

A labor certification is a path to permanent residence, and because it usually involves cooperation between an applicant and a potential employer (the "sponsor"), money is bound to change hands. Though inexperienced lawyers usually cannot conceive of the machinations often involved in applications for a labor certification, experienced lawyers can. And because applying for labor certifications is a predictable, high margin business, many lawyers do not turn down the cases that they should.

Ethnic restaurants are a prime area for potential clients because it's plausible, though increasingly unlikely, that an Italian restaurant must turn to Italy to find a chef.

At the end of last year, well-known immigration lawyer Samuel Kooritzky was convicted on 57 counts of fraud in connection with two years of applications for labor certifications for which he collected $10 million in fees. He filed 230 separate applications for only two Chili's restaurants, 184 for a diner, and 173 for a single Shoney's restaurant. Immigrants were reportedly charged between $8,000 and $20,000 per application. Managers of the restaurants insisted that they were unaware that they had been used as sponsors in a labor certification application.

What role do restaurants normally play? It's common for a restaurant owner to first accept a down payment from a would-be immigrant, and file an application that states that there is a need for a new chef, restaurant manager, or prep cook. The need is wholly fabricated, and there is never an intention to actually employ the immigrant if a labor certification is eventually granted. Progress payments are made to the restaurant to insure its cooperation at every step of the application process. A "balloon" payment is sometimes made to the restaurant owner when the labor certification is granted, and because the labor certification exists only as long as the employer needs it, an immigrant's failure to make the balloon payment often results in a letter from the restaurant owner to the INS or Department of Labor, withdrawing or canceling the application. The practice has now extended to individuals, not businesses, colluding with immigrants and filing a fraudulent application for labor certification for a domestic servant or home cook.

The H-1B visa, which exists to insure that American companies have enough skilled workers, is similarly abused, and is the chief culprit in the current glut of computer programmers. As disturbing as it may be to recent college graduates, most U.S. employers are not first required to hire American applicants before they seek foreign workers to fill jobs.

At the end of 2002 America had 900,000 foreign workers on H-1B visas, the vast majority of which are computer programmers. If there were a critical need for H-1B computer programmers, then starting salaries for new graduates should reflect that fact.

Data from the National Association of Colleges and Employers for 2000 indicate that average starting salary offers for computer science bachelor's graduates rose from $44,649 to $49,055 (9.9 percent). That compared with an increase for math graduates of 12.1 percent ($37,253-41,761) and humanities graduates by 18.9 percent ($37,253-41,761). With the bottom falling out of high-tech, salaries for computer science graduates have dropped over the past two years and were at $44,429 in January 2003. If there is a shortage of computer programmers, then the market would show that. But it shows the opposite -- there are too many of them.

The cap for H-1B visas is set to revert from the current annual cap of 195,000 to 65,000, but foreign governments and American employers are fighting it. Like its entitlement system, America's job market and the immigration rights that have grown up around it are regarded as the world's property, rather than something that exists for the benefit of Americans.

Matt Hayes began practicing immigration law shortly after graduating from Pace University School of Law in 1994, representing new immigrants in civil and criminal matters.  He teaches at Berkeley College, and is author of The New Immigration Law and Practice, a textbook to be published by West Legal Publications in October, 2003.

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