Prediction: Mighty Microsoft Will Triumph over a Lonely DoL Staffer

By David North on November 27, 2013

There's a battle going on between a lone Department of Labor staffer and mighty Microsoft over issuing green cards to the latter's employees, and I predict that an appellate body within DoL will favor Bill Gates over the nameless certifying officer.

The standing rule is that an employer, like Microsoft, has to at least consider re-hiring its recently laid-off citizen workers before offering green cards to foreign workers (who are presumably, in most cases, already working for that firm as H-1Bs). That's a totally sensible requirement.

The staffer, deep in the bowels of the Department's Employment and Training Administration, must have decided that the Microsoft manner of considering the re-employment of laid-off citizen (and permanent resident alien) workers was not appropriate, and then denied 25 labor certifications. My source for this, a posting at Bloomberg BNA, is so one-sided it is hard to piece together the staffer's rationale.

But, as best as I can tell, the staffer rejected the long-existing (and thus long-tolerated by DoL) Microsoft practice that had been to hand-deliver "messages to laid-off employees that provides information about the website where job openings are posted.... Microsoft requires them to actually apply for a job before the company considers them."

I suppose another approach would be to force the employer to consider the resident, laid-off workers as a matter of routine before seeking to hire foreign workers; in short, that the workers need not formally apply for the job. It may be, though Bloomberg BNA will not tell us this, that the laid-off workers sense that the alien will get the job anyway, and there is no point to their applying.

Back to the appeal. Routinely, when an employer disagrees with a certifying officer who has denied the employer what it wants, the employer appeals to a panel of three administrative law judges within the Board of Alien Labor Certification Appeals (BALCA); both the certifying officer and the employer routinely file written statements and the panel then moves to a decision without an oral hearing. The decision of the three determines the fate of the application but does not become a precedent.

What is happening in this case is not routine. There will be an en banc session of all available BALCA administrative judges and there will be arguments presented by lawyers for both sides, and there is also an opportunity for the filing of amicus briefs.

And who will be filing? It will be the heavy hitters of American business and their trusty allies: the U.S. Chamber of Commerce, the American Immigration Council, the Council for Global Immigration, the Society for Human Resources Management, and, of course, the American Immigration Lawyers Association. The Bloomberg BNA story mentions no one else. Decisions rendered en banc are regarded as precedents.

There are several reasons for my prediction:

First, the department may not have, in fact, given what may be the legally required notice for what Microsoft regards as changing the rules in mid-stream. The company apparently has a history of getting lots of green cards after using the described "consideration" approach. So they have the factor of long-standing administrative practice, if not a legal precedent, going for them.

Second, DoL, at some level, must have consented to the relatively unusual en banc hearing, which may suggest a sympathy for the employer.

Third, I gather from reading Interpreter Releases, the immigration bar's trade paper, over recent years, that BALCA has frequently rejected certifying officers' decisions to deny green cards for somewhat similar reasons.

Fourth, although this is a quasi-judicial hearing, the DoL leadership is part of the Obama administration, and is routinely pro-mass immigration.

Fifth, the best-paid lawyers in the room — and there will be a lot of them — are on the side of the employers.

Finally, Microsoft is Microsoft.

The hearing is to be held on December 3 at the Department of Labor in Washington.

I will be delighted if I am proven wrong, but that's unlikely.