WASHINGTON (CN) – The U.S. Labor Department “is attempting to dictate both when employers can consult with their lawyers and what advice the lawyers can give,” though a “radical and unprecedented new interpretation of its regulations” about immigration law and labor certifications, a Washington, D.C. law office claims in Federal Court. Fragomen, Del Rey, Bernsen & Loewy claims, “In the last two months, the Department has barred attorney-client consultations about specialized questions of immigration law, and has attempted to bias the advice attorneys must give their clients when confronted with questions about the permanent labor certification program administered by the Department’s office of Foreign Labor Certification.”
The law office asks the Federal Court “to invalidate, rescind, and permanently enjoin actions by the United States Department of Labor.”
Labor Department regulations include rules about whether applicants are “qualified” for the jobs they seek. The regulations “provide that employers may be represented by counsel ‘throughout the labor certification process.’ Experienced and knowledgeable immigration attorneys help employers navigate and complicate with this often confusing and complicated process,” the complaint states (citation omitted).
“The Department has recently announced a radical and unprecedented new interpretation of its regulations. The Department now is attempting to dictate both when employers can consult with their lawyers and what advice the lawyers can give. The direct consequence of this effort is that employers attempting to comply with both the letter and the Department’s interpretation of the regulations will be intimidated into taking actions without first obtaining the guidance they believe they need from their immigration attorneys.
“Specifically, the Department now asserts that during recruitment conducted for a labor certification application, an employer in some situations may not consult with its counsel about whether particular applicants for a position are ‘qualified’ under the complicated criteria established by the regulations, which deviate substantially from normal hiring standards.
“Under the Department’s new view, if the employer makes a preliminary assessment that an applicant appears qualified, then – according to the Department – consultation by the employer with its attorney is forbidden. However, if the employer makes a preliminary assessment that an applicant appears unqualified, the employer may consult with an attorney to ensure that the employer’s assessment is fully consistent with the criteria in the regulations. The Department thus has imposed a content-based and viewpoint-based restriction on attorney-client communication. The Department has also decreed that attorneys retained by employers may not review applicant resumes when they are received and communicate with their clients at that time about whether particular applicants may be ‘qualified’ under the regulations.
“Based on its new interpretation of the regulations, the Department announced a 100 percent audit of all labor certification applications filed by Plaintiff on behalf of its clients.
“The Department’s actions exceed its statutory authority, violate the constitutional rights of employers to consult with their counsel and of counsel to provide advice to their clients, and contravene the regulation the Department purports to be implementing. These actions also seek to force attorneys to breach ethical duties they owe to clients, violate Plaintiff’s due process right to pursue its vocation, and depart from decades of settled practice in immigration law. In addition, the Department promulgated its new interpretation without notice and an opportunity for comment, in violation of basic rulemaking requirements established by the Administrative Procedure Act.”
Plaintiff says it is one of the nation’s leading practitioners of business-related immigration law, with more than 250 attorneys and more than 1,000 “professional immigration specialists and staff” in more than 30 offices in North and South America, Asia and Europe.
It wants implementation of the Labor Department’s new interpretation of its rules enjoined. It is represented by Thomas Williamson Jr. with Covington & Burling.