By Jinhee Wilde, Esq.
(originally published at Lextalk.com)
There has been an alarming trend, first by the consular officers in Asia and now through Department of Homeland Security/USCIS (USCIS) to suspect and deny cases merely because the foreign worker applicant has engaged the services of a migration agent involved in the Employment-based immigration process.
Historically, many Asian countries have grown economically because they sent their citizens out to another country to work and bring back foreign money into their country. This was particularly true of Korea where in the 1970s, the activities related to migration of South Korean workers was performed and controlled by the government through a government organization called Korea Overseas Development Corporation (KODCO). KODCO was established in April of 1976 by the Korean government to serve as the emigration agent for the government’s workforce exporting project.1 This project was promoted by the government from the 1970s to the 1980s because emigration would bring long-term economic development to South Korea by decreasing the unemployment rate, curb population growth, earn foreign currencies, and bring in advanced technology from developed countries.
In 1991, as Korea became more prosperous and conglomerates such as Hyundai, Samsung and Daewoo were lending their construction and technical know-how to underdeveloped countries, the organization was redesignated as the Korea International Cooperation Agency (“KOICA”) under the Korea International Cooperation Act2 to focus on helping these companies to find cooperative projects/contracts in the underdeveloped countries instead of exporting workforce. Upon such reform, the emigration agency role was privatized and licensure of emigration agency businesses with the Korean Ministry of Foreign Affairs was instituted. Since the role of the emigration agent was originally performed by the government for the benefit of the emigrants, emigration agency businesses are strictly regulated by the South Korean Ministry of Foreign Affairs through the South Korean Emigration Act.
The South Korean Emigration Act lists the activities performed by such registered emigration agency businesses as follows:
- Report to the Korean government of emigrants’ intent to emigrate out of Korea;
- Counseling and guidance related to emigration and potential countries and processes;
- Application processes for the issuance of various visas on behalf of emigrants;
- Support of migration and settlement of emigrants.
The Emigration Act specifically provides that the migration agencies owe a fiduciary duty to the persons seeking to emigrate out of Korea, i.e., the beneficiary worker in case of EB category. The migration agencies are prohibited from “(1) Soliciting emigrants or engaging in emigration agency by deceit or other wrongful mean; (2) Engaging in acts impairing national reputation, and (3) Engaging in other acts … including false or exaggerated advertisements, provision of false information…. See, South Korean Emigration Act, Article 10-4. The Act clearly regulates the migration agency’s conduct regard to the emigrants who are trying to immigrate to U.S. or elsewhere, not how they should conduct recruitment for a foreign employer.
Having any agents who would be paid for these services by prospective emigrants is unknown in the U.S. where relatively few are seeking avenues to emigrate. Thus, the government officials adjudicating these applications appear predisposed to believe that migration agents are serving the roles with which they are familiar: “they must be that of a recruiter because these are employment-based immigration.” However, finding that all migration agents are equal to recruiters is an arbitrary assumption, not based on evidence. “Adjudicators need to be mindful of the cultural and economic context in which particular activities occur, and be careful when applying the paradigms of the U.S. or of other countries when evaluating what’s going on in Korea. It does not necessarily follow that a migration agent whose services are routinely sought by individuals considering immigration to the U.S. is a recruiter in the U.S. sense of that term,” said Leon Rodriguez, former Director of USCIS.
“Recruitment,” as defined by 20 CFR 655.739, is “the process by which an employer seeks to contact or to attract the attention of person(s) who may apply for employment, solicits applications from person(s) for employment, receives applications, and reviews and considers applications so as to present the appropriate candidates to the official(s) who make(s) the hiring decision(s).”
The migration agents do not engage in these “recruitment” activities. They have no affiliation with prospective employers. They do not seek employees for any companies and they do not screen potential employees’ qualifications nor interview them for recommendation to hire or not hire the workers. In fact, as the Emigration Act specifically provides, the role of the migration agents is to counsel and guide potential emigrants about various countries available for immigration and their processes. Migration to U.S. alone has many avenues, such as family-based immigration to various Employment-based immigration, including the Einstein visa category (EB-1) to Investment visa category (EB-5) for which different candidates for migration could be eligible and migration agents will advise and guide them through the process to choose one that is right for each candidate.
While we support the government’s endeavor to make sure that no American workers are being displaced in favor of foreign workers and no improper commerce and payment for the immigration benefits are occurring, it is a mistake for USCIS officers to impose the Western business model in labeling an incorrect role of the migration agents in the immigration process.
The process of employment-based sponsorship in the EB-3 (Other) category entails a three-step process:
- A PERM application is processed and filed by the employer with the Department of Labor (DOL) after the employer conducts local, U.S. recruitment and can show that it was not able to find enough minimally qualified, able, or willing U.S. workers for the positionsthat they are trying to fill. DOL, in its review of the PERM application often conducts Audits to make certain that the employer has conducted recruitment properly before filing the application. Obviously, when dealing with “unskilled workers,” an employer must have hired “all applicants that are willing and able to work” and still has vacancies to fill, which is not easy to do. DOL regulations require that the employer cover all expenses in connection with the first step of the sponsorship process, which includes the legal fees, expenses, and all advertisement costs associated with the test of the labor market (20 CFR 656.12). The potential foreign workers must not reimburse the employer for any of these costs. However, because the PERM application could be filed by an agent instead of the employer directly, there is potential for the agent to take shortcuts during the recruitment process, thereby failing to show that the employer has the need to sponsor foreign workers. These employment agencies/brokers, such as Global Employment Network, Worldwide Personnel, etc. appear to be recruiting agencies from their names and they are indeed Third-party recruiters that DOL and USCIS have focused their investigation. If these brokers get paid by the foreign workers for providing them with sponsoring employer, it is illegal payment per 20 CFR § 656.12.3 This is different than foreign workers paying the Migration agents of their own country for the immigration consulting and other related services they received.
- The second step, also undertaken by a potential employer, is an employment-based immigrant visa petition filed before the USCIS. This step is known as an I-140, Immigrant Petition for Alien Worker, and it is where the employer must show that the employee has the qualifications that the position sought in its recruitment efforts during the PERM process; and the employer has the “ability to pay” the employee the offered PERM wage, which was determined by the DOL before the employer started the recruitment process for the PERM filing. The employer must be able to show the ability to pay through corporate tax returns or audited financial statements of the employer. For any employer with more than 100 employees, they could provide an affidavit attesting that they could meet the financial obligation to pay the employees along with the 941s. Unlike the PERM application process of DOL, there is no regulation prohibiting the potential foreign worker from paying the filing fees and attorney fees of the I-140 as they are the ultimate beneficiary for this immigration process. Also, it is logically acceptable practice for one attorney who represents the employer to represent the employee because it will ease obtaining and preparing the necessary documents and filing petitions from both the employer and employee. Of course, this “dual representation” must be disclosed by the legal professional and the client must consent to this arrangement.
- The third and final step involves the filing of the Immigrant Visa applications for the employee and every individual member of his/her spouse and unmarried children under 21 years with the Department of State (DOS). The filing fee, called the Visa fee, and attorney fees for this process are the sole responsibility of the foreign national employee. 4
The recent trend of USCIS’ scrutiny of the Migration Agency’s role began with the Embassy in Seoul, Korea, whose visa consul became alarmed by over 2000+ (EB-3, unskilled category) IV cases were filed within one year and sent cases back to USCIS for re-review and possible revocation suspecting possible fraud. However, this over-reaction of DOS is a waste of precious government resources and it is contrary to DOS’ own cable that states that “Post should not use the revocation request process as a means of disposing of problematic cases in which fraud, misrepresentation or ineligibility for status is only suspected but cannot be clearly established.” Cable, DOS, 01-State-121801 (July 13, 2001), reprinted in 78 No. 30 Interpreter Releases 1276-78 (August 6, 2001).
Each of the above mentioned immigration step falls under jurisdiction of different Departments and agencies, whose review should not be second-guessed or reviewed by another agency. If DOL has certified the LC application, particularly after auditing to make certain the U.S. recruitment was conducted properly, USCIS need not demand and re-review PERM audit documents in order to adjudicate I-140. Likewise, DOS posts also need not re-examine and scrutinize DOL and USCIS determinations of the long immigration process when they are interviewing the IV applicants for admissibility. “We always have to ask ourselves whether it’s good government for one agency to routinely re-open the determinations of a sister agency with clearly assigned jurisdiction over that determination.” added Former Director Rodriguez.
Finally, it is important to stress that the evidentiary standard for all immigration cases is “Preponderance of Evidence,” not beyond reasonable doubt. The adjudicating officer should review the totality of evidence to see if it is “more likely than not” that there is bona fide jobs and the workers are “willing and able” to work. They should not throw the “baby out with the bath water” by highlighting only the miscreants that abuse these programs, or denying all cases based on mere suspicion that something may be wrong.
1 See link. South Korea in the Fast Lane: Economic Development and Capital Formation, by Young-Iob Chung, 2007 Oxford University Press.
2 See link
320 CFR § 656.12 – Improper commerce and payment
(a) Applications for permanent labor certification and approved labor certifications are not articles of commerce. They shall not be offered for sale, barter or purchase by individuals or entities. Any evidence that an application for permanent labor certification or an approved labor certification has been sold, bartered, or purchased shall be grounds for investigation under this part and may be grounds for denial under § 656.24, revocation under § 656.32, debarment under § 656.31(f), or any combination thereof.
(b) An employer must not seek or receive payment of any kind for any activity related to obtaining permanent labor certification, including payment of the employer‘s attorneys’ fees, whether as an incentive or inducement to filing, or as a reimbursement for costs incurred in preparing or filing a permanent labor certification application, except when work to be performed by the alien in connection with the job opportunity would benefit or accrue to the person or entity making the payment, based on that person’s or entity’s established business relationship with the employer. An alien may pay his or her own costs in connection with a labor certification, including attorneys‘ fees for representation of the alien, except that where the same attorney represents both the alien and the employer, such costs shall be borne by the employer. For purposes of this paragraph (b), payment includes, but is not limited to, monetary payments; wage concessions, including deductions from wages, salary, or benefits; kickbacks, bribes, or tributes; in kind payments; and free labor.
(c) Evidence that an employer has sought or received payment from any source in connection with an application for permanent labor certification or an approved labor certification, except for a third party to whose benefit work to be performed in connection with the job opportunity would accrue, based on that person’s or entity’s established business relationship with the employer, shall be grounds for investigation under this part or any appropriate Government agency’s procedures, and may be grounds for denial under § 656.32, revocation under § 656.32, debarment under § 656.31(f), or any combination thereof.
4.If the foreign worker applicant is in the U.S. under a valid status, he/she may file the I-485, adjustment of status application with USCIS.
Jinhee Wilde, Esq. is Principal and Managing attorney of Wilde & Associates, LLC. She focuses on business (employment-based) immigration in her practice.
About the Author: Jinhee Wilde, Esq.
Jinhee Wilde is the principal and managing partner of Wilde & Associates LLC, a boutique law firm focusing on business and investment immigration. Her 32 years of legal experience began first as a prosecutor for Chicago and then as the Inspector General designee, special counsel and attorney advisor for the U.S. Department of Agriculture. This extensive government experience still gives her a government lawyer’s perspective to help her clients, which may explain her stellar track record in both I-526 and I-829 filings with only 3 RFEs on Source of Fund on numerous cases since 2007. Jinhee only represents the investor side of EB-5 and stays independent from any regional centers. She is on the President’s Advisory Council of IIUSA and active in AILA and is a frequent speaker at EB-5 conferences. Jinhee received her BA from the University of Chicago and JD from Loyola University of Chicago School of Law.