September 18, 2008 4:18 PM

In Abrupt Shift, the Department of Labor Clears Fragomen

Posted by Susan Beck

After a lot of huffing and puffing and chest thumping, the Department of Labor has decided not to go after the nation's largest immigration firm, New York's Fragomen, Del Rey, Bernsen & Loewy. Back in June, the department, with much fanfare, announced in a press release that it would be auditing close to 2,500 pending green card applications submitted by Fragomen for clients because of concerns that the firm was violating labor regulations. On Wednesday, the department, with the equivalent of a mumble and a shrug, issued a cryptic and nearly incomprehensible press release in which it states--without ever mentioning Fragomen by name--that certain pending audits are "being released."

The government had earlier announced that it was investigating the Fragomen firm for possible "improper attorney involvement" in hiring decisions involving foreign workers. Regulations limit the involvement of an employer's lawyers when a business is planning to hire a foreign worker for certain skilled jobs, as reported in the July issue of The American Lawyer.

In August, Fragomen struck back and sued the Department of Labor in Washington, D.C., federal court for violating constitutional rights to counsel. Represented by Covington & Burling, the firm asserted that its audit stemmed from a "radical and unprecedented new interpretation” of Labor's regulations in which the government was "attempting to dictate both when employers can consult with their lawyers and what advice the lawyers can give." The firm sought a preliminary injunction to stop the audit and to prevent the department from interfering with an employer's right to consult with an attorney.

The government's abrupt about face comes two days after it submitted an "errata notice" in the D.C. case, admitting it had made numerous errors in an earlier brief. In particular, Labor withdrew statements that the policy it was enforcing against Fragomen was "longstanding."

A spokesperson for Labor says the agency changed its stance after it came across precedent from the Board of Alien Labor Certification Appeals supporting the right of employers to consult with lawyers about any question that comes up in the employment certification process. Still, the department doesn't sound contrite about dragging Fragomen through the mud."This is not to say there wasn't a legitimate reason to do the audit," says the spokesman, adding that not until recently did the firm offer a rationale in its court filings that satisfied Labor.

We could not reach anyone at Fragomen, but in a prepared statement, Covington partner Thomas Williamson, Jr., said the firm is pleased that Labor has abandoned its blanket audit. In addition, he wrote, they are working with both Labor and the Department of Justice "to move forward on the details of a resolution to our pending litigation."

The firm probably isn't so pleased about the toll this has taken on its business. In court filings earlier this month, Fragomen asserted that the government's action has "inflicted massive injury" on the firm's reputation, and many of the firm's competitors have moved to "exploit the sense of 'taint' created by the department's special audits." In fact, the firm asserts, several unnamed major clients have approached competitors to pitch for business.

Crystal Williams, deputy director at the American Immigration Lawyers Association, says this whole saga has mystified and disturbed her and others in the immigration bar. "It looks like somebody [in the government] sat down with the law and realized there is something seriously wrong with what they've done. But they haven't issued a press release saying 'maybe this law firm didn't do anything wrong.'"

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