Hiring video's aftermath: Law firm says words ill-chosen, but advice proper

Cohen & Grigsby exec defends comments that sparked controversy as 'legally correct'

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But Jack Elliott, the law firm's president, wrote in his July 10 letter to the lawmakers that Cohen & Grigsby officials "reject any suggestion that members of the firm have engaged in any conduct that is illegal, abusive, discriminatory against U.S. citizens or unethical."

Elliott added that the comments about recruitment practices made at the seminar by Lebowitz and other Cohen & Grigsby employees didn't actually relate to H-1B visas, "because recruitment is not a part of the normal H-1B statutory or regulatory scheme." He contended that the discussion of H-1B visa issues at the seminar "comported in all respects with applicable legal requirements."

In the case of green card applicants, Elliott argued that many of the foreign nationals seeking permanent residency status in the U.S. have been on the job for several years. And by the time an employer decides to apply for a PERM certification, he wrote, "the company normally has decided that the foreign national employee is of critical importance to the company."

According to Elliott, the DOL's advertising requirement compels companies to place help wanted ads for "positions already occupied by a foreign worker whom the employer is not seeking to replace." The PERM process wasn't developed by the DOL "to find jobs for U.S. workers," he continued. "Rather, it is one step in determining whether a foreign national employee of a U.S. employer ... should be able to obtain permanent resident status in the United States."

Grassley and Smith, in their letter to the law firm, said comments made in the video advise potential employers that they can meet the Labor Department's requirements by advertising positions "in places where they will not find the most qualified applicant" -- for instance, in publications with limited circulations.

In response to that point, Elliott wrote in his letter, "It is common and legal for employers to choose less expensive options that fully meet DOL requirements."

"We are well aware that many persons who understand the labor certification process find it unfair to American applicants who are led to believe that an advertised job posting represents an open position that an employer wishes to fill immediately," Elliott added. "However, the appropriate response, we respectfully suggest, is not to challenge those who attempt to live by the rules, but to change the rules."

Berry called the advertising requirement a sham and said that even if qualified workers apply for a job, they know they won't get it.

The mission of the Labor Department is to help job seekers, Berry said. But he claimed that there's a "wide discrepancy" between the DOL's stated mission and the agency's "condoning of bringing in qualified Americans to job interviews for the sole purpose of finding some basis to disqualify them, and to give those jobs to a citizen of another country."

John Miano, the founder of the Programmers Guild, said the YouTube video will remain "the theme song of any debate" on this issue. Miano doesn't expect the video to change anything, but he pointed out that when employers advertise for workers, they attest that they're acting in good faith. That isn't always the case, he said.

Copyright © 2007 IDG Communications, Inc.

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