CWA proposed H-1B reforms
CWA proposed H-1B reforms
Date: Thursday, January 09, 2003 2:05 PM
H-1B and JOB DESTRUCTION NEWSLETTER
www.ZaZona.com
Past newsletters have detailed the arrival of the Communications Workers of
America into the battle against H-1B. They are trying prevent AT$T from
training H-1Bs that will be used to knock down wages and as scabs to use in
case of strikes. Worse yet, many of these H-1Bs will be trained to take
American jobs back to their home countries.
CWA drafted a proposal on H-1B but they don't necessarily have the support
of their national organization, the AFL-CIO. It is still yet to be
officially endorsed. Before the year 2000 the AFL-CIO opposed H-1B but they
changed course. They made a tacit decision to de-emphasize H-1B so that they
could win amnesty for illegal aliens who they hope would join the union.
It's yet to be seen if grass roots pressure from the CWA will pressure the
AFL-CIO to change course. For some detailed history of the AFL-CIO and how
they have handled immigrant work visas go to:
http://www.zazona.com/shameh1b/H1BHistory.htm and be sure to read "American
Unionism and U.S. Immigration Policy" by Vernon M. Briggs, Jr. at:
http://www.cis.org/articles/2001/back1001.html
The CWA proposal is a very good start but there are some problems with it.
At ZaZona many of the issues the proposal addresses can be found on the FAQs
page at: http://www.zazona.com/shameh1b/H1BFAQs.htm. The Links page has many
resources that could be used for further research.
CWA understands how visas such as H-1B and L-1 will hurt their members. They
also want to take steps to limit the outsourcing of jobs. Unions are
powerful allies so we should all welcome their support. High tech workers
have shunned unions in the past but this could change as they come to
understand that going alone against the corporate oligarchy isn't wise if
they want to earn a living wage.
http://www.techsunite.org/news/techind/h1breforms.cfm
AFL-CIO unions, CWA propose H-1B reforms
Prepared by the Department for Professional Employees, AFL-CIO, in
coordination with the Communications Workers of America and numerous other
international unions.
Proposed Changes for H-1B Labor Certification Program
1. Labor Market Conditions
Current Problem:
Want the latest news and headlines about the H-1B program, offshoring of
U.S. tech jobs, tech worker organizing, IT employment trends and more?
Subscribe today to the TechsUnite enewsletter!
The H-1B program is completely disconnected from the realities of the U.S.
labor market. While spot shortages in certain professional occupations may
exist from time to time, H-1B fails to address these specific needs. Instead
the program floods the marketplace with the potential of 200,000 or more
professional guest workers each year. It is estimated that there may be as
many as a half million H-1Bs in the U.S. today.
Government Studies:
"The program does not currently protect U.S. workers' jobs; instead, it
allows aliens to immigrate based on their attachment to a specific job and
then shop their services in competition with equally or more qualified U.S.
workers without regard to prevailing wage." [1]
"DOL's Permanent Labor Certification Program does not meet its intent of
excluding foreign workers when qualified, willing U.S. workers are
available…Despite a costly, time-consuming recruitment process, the required
labor market test did not result in the hiring of U.S. workers over foreign
labor." [1]
"..the current size of the H-1B workforce relative to the overall number of
IT professionals is large enough to keep wages from rising as fast as might
be expected in a tight labor market…(there is) no analytical basis on which
to set the proper level of H-1B visas, and that decisions to reduce or
increase the cap on such visas are fundamentally political." [5]
Possible Reforms:
Devise labor market test that ties visa approval to local labor market
conditions.
Reduce number of available H-1B visas from current level of 195,000 per
annum to 1998 level of 65,000
Eliminate exemption for educational institutions.
Condition employer eligibility to petition for H-1B visas on their ability
to demonstrate that, over the previous year, they
increased the number of full time equivalent U.S. workers;
increased the total amount of wages paid to their U.S. workers, and;
increased the average wages paid to their American workers.
Impose more meaningful/verifiable requirements that all H-1B employers (not
just H-1B impacted) make good faith efforts to recruit in the U.S. and that
they have not laid off workers to make room for guest workers.
Limit number of guest workers in any one firm, to a set percentage of the
firm's workforce.
2. "Temporary" Program
Current Problem:
H-1B guest workers can stay in the U.S. for at least six years (two, three
year renewable visa terms); longer if their paperwork to transition them to
green card status is in the DOL pipeline. A program of six years duration
does not qualify as "temporary."
Possible Reforms:
Restrict this "temporary" guest worker program to one, two or three year
(non-renewable) term.
3. Prevailing Wage Determination
Current problem:
The so-called "prevailing wage determination process", which is not subject
to DOL rate setting and may or may not be based on a bona fide locally
calculated wage rates, provides employers with the ability to in effect set
their own rates and pay far lower than the actual prevailing wage for a
given professional occupation.
Government Studies:
"There is no certainty that U.S. workers' wages are protected by the LCA
[Labor Condition Application] program's requirement that employers pay
aliens the higher of the prevailing wage or actual wage paid to their
employees who are similarly employed." [1]
"WHD (DOL's Wage and Hour Division) is significantly more likely to find
violations in H-1bB (back wage) complaints than in complaint cases under
other (wage and hour) laws….over the last four and a half years, 83% of the
closed H-1B investigations found violations-compared to about 40 to 60
percent under other labor laws" [4]
"The Labor Condition Application Program is being manipulated beyond its
intent of providing employers the best and brightest in the international
labor market while protecting the wage levels of U.S. workers." [1]
For 75% of all cases where the non-immigrant worked for the petitioning
employer, the employer did not adequately document that the wage level
specified on the LCA was the correct wage. In their review of LCAs, the DOL
regional Certifying Officers do not verify or question if a public file [on
the method of determining the wage and the impact of the wage rate on
similar workers] actually exists. 8 U.S.C. 1182(n)(1) does not give them the
authority to do so. [1]
Even where the employer adequately documented the wage paid, 19% of the
aliens were paid less than the wage specified on the LCA. [1]
Possible Reforms:
Employers petitioning for H-1B workers must pay the higher of:
the prevailing wage as determined by the state workforce agency (SWA); or
a prevailing wage that is no less than the median salary for U.S.
professional workers. (This will help assure that these guest workers will
be paid a minimally appropriate salary commensurate with the highly prized
and difficult-to-find skills that they allegedly possess).
In order to better keep track of H-1B workers and insure that they are paid
the appropriate pay, employers should be required to file a copy of the
workers' yearly W-2 form with the DOL/INS.
Assure the payment of all benefits available to the petitioning employer's
other employees are also paid to the H-1B worker(s).
4. Lay-off protections
Current Problem:
So-called safeguards to prevent employers from laying off U.S. workers and
hiring H-1Bs are ineffective and limited to the employer's actions over a 90
day period prior to the hiring of the H-1B.
Possible Reforms:
Apply anti-layoff protections to all H-1B employers.
Extend no-layoff protections from ninety days to six months for all H-1B
employers.
Laid-off H-1B workers must return to their country of origin within 60 days
of their unemployment; prevent the misuse of the "portability" of H-1B visas
so that they are not used by the guest worker to look for other employment.
5. Employer attestations
Current Problem:
Employer attestations regarding their so-called "good faith" efforts to
recruit U.S. workers are laughable. Employers establish qualifications and
skills sets that are most often tailored to a specific guest worker.
Attestations regarding the payment of the prevailing wage are equally
insufficient.
Government Studies:
"Employers specifically tailor advertised job requirements to aliens'
qualifications. The jobs' education and experience requirements were based
on the aliens' qualifications, not on the skills required to perform the
work." [1]
"The special requirements identified on the application appear to be
customized to fit the alien's qualifications rather than represent actual
job requirements. This appears to be restrictive criteria to eliminate
qualified U.S. workers." [1] Degree requirements
Possible Reforms:
Eliminate and replace attestation process
6. Degree Requirements
Current Problem:
H-1Bs are supposed to be highly skilled professionals with the requisite
academic degree. But even this standard is undercut by language that allows
a vague degree equivalency, such as work experience, to suffice. In addition
there is no system in place to verify that those with degrees have valid
credentials or that they are equivalent to a U.S. degree.
Congressional Testimony:
Accusations that H-1B applicants falsify job experience and education were
confirmed by Jacquelyn Williams-Bridgers, State Dept. Inspector General, who
said that attempts to falsify, alter, or counterfeit U.S. visas or passports
and attempting to obtain false documents to obtain visas is a "constant
problem both within the U.S. and overseas." [2]
Jill Esposito, State Dept. Post Liaison Division, Visa Office, Bureau of
Consular Affairs, backed up Yates' statement that documents are routinely
falsified. She said that, although many foreign workers in the U.S. on
nonimmigrant visas are here legally and properly, there are "thousands of
marginally qualified applicants (who) are also entering the United States in
the H-1B and L-1 categories." [2]
Ms. Esposito also detailed a year-long joint INS and Department of State
initiative which focused on the American Consulate in Chennai, India, which
issued more than 20,000 H-1B visas in Fiscal Year 1998 -- more than any
overseas post. The investigation found that 45 percent of the 3,247 work
experience claims made to the INS were fraudulent. [2]
Possible Reforms:
Current law allows H-1B applicants to have a college degree or the
"equivalent". This sets a highly subjective standard that is most difficult
to apply and often abused. Work experience should not be a substitute for
the required academic credentials. This vaguely-worded equivalency standard
should be eliminated.
Assure that the H-1B worker has an degree in the field/discipline for which
he/she is being hired.
At present there is no procedure in place for checking on the validity of a
college degree cited to support an H-1B petition. The Secretary of State
through its consular offices that issue the visas (or another appropriate
federal agency) should determine whether such a degree has been granted by a
bona fide institution of higher education (authenticity) and is equivalent
to college degrees obtained in the U.S.
To assure that H-1B visas are mainly allocated for use by the most highly
skilled and educated, a "carve out" beginning at 40% and increasing to at
least 50% of the total number of visas should be reserved for "guest
workers" possessing a master degree or higher.
7. Fraud
Current Problem:
Falsified immigration documents, bogus credentials, sham employer
attestations, phony applications, forged petitions on behalf of unknowing
employers, wage chiseling and other scams are just some of the litany of
illegalities uncovered by investigators at four federal agencies.
Government Studies:
"The OIG [DOL Office of Inspector General] continues to identify fraud in
the labor certification program, particularly in the H-1B temporary work
visa program. These cases involve fraudulent petitions that are filed with
DOL on behalf of fictitious companies and corporations; individuals who file
petitions using the names of legitimate companies and corporations without
their knowledge or permission; and increasing numbers of immigration
attorneys and labor brokers who collect fees and file fraudulent
applications on behalf of aliens. Based on prior investigative and audit
work that found programmatic weaknesses and vulnerabilities in the program,
the OIG remains concerned about the potential for increased fraud in this
area." [3]
The OIG has averaged 14 indictments and 11 convictions per year for labor
certification fraud over the prior [1996] five-year period." [3]
"Some aliens are themselves the petitioning employer, thereby filing
petitions on their own behalf." [1]
Possible Reforms:
Allow only the primary employer, i.e. those employers who have a specific
job opening(s), to apply for an H-1B guest worker visa.
Require employers to file electronically with the DOL key information about
each H-1B hire--name, country of origin, academic degree, job title, start
date, salary level. The DOL shall then make such data available on the
Internet.
H-1B workers should only be allowed admission to work full-time (40 hrs per
week) not part-time.
8. Enforcement
Current Problem:
According to the DOL's own Inspector General as well as the GAO, federal
enforcement mechanisms are woefully inadequate to compel employer compliance
with even the weak safeguards that exist under the H-1B program that are
supposedly designed to protect American workers. Penalties for violations
and outright fraud are too meager to induce compliance.
Government Studies:
"Labor's [U.S. Department of Labor] limited legal authority to enforce the
program's requirements and weakness in INS' program administration leave the
program vulnerable to abuse. Under the law, in certifying employers' initial
requests for H-1B workers, Labor is limited to ensuring that the employer's
application form has no obvious errors or omissions. It does not have the
authority to verify whether information provided by employers on labor
conditions, such as wages is correct." [4]
"There is not sufficient assurance that INS reviews are adequate for
detecting program noncompliance or abuse." [4]
"However, as the program currently operates, the goals of preventing abuse
of the program * are not being achieved. Limited by law, Labor's review of
the LCA [labor certification application] is perfunctory and adds little
assurance that the labor conditions employers' attest to actually exist.
Expanding Labor's authority to question information on the LCA would provide
additional assurance that labor conditions are being met" [4]
Possible Reforms:
Of the $1,000 visa fee charged for the H-1B visas, allocate $50 to $100 per
visa issued to DOL enforcements/compliance efforts, audits and
complaint/fraud investigations.
Authorize implementation of a significant volume of compliance audits;
automatic audits for employers with over certain number of guest workers.
Centralize administration/enforcement functions in one federal agency-DOL.
Impose both debarment and civil penalty remedies against employers found to
have engaged in fraudulent activities.
Disallow employers from appealing adverse DOL decision on the LCA to the
INS.
Impose double-back pay remedies for employers found to guilty of wage
chiseling.
Permit DOL investigations of suspected misconduct without the necessity of
having to have a complaint as justification.
For purposes of enhancing worker protections and program oversight,
eliminate the H-1B impacted employers category.
Footnotes
[1] "OIG's Audit of ETA's Foreign Labor Programs Final Report" No.
06-96-002-03, US Department of Labor, 5/26/96
[2] "U.S. House of Representatives, Judiciary Subcommittee Hearing on
Nonimmigrant Visa Abuse, 5/5/99
[3] "Semiannual Report of the Office of Inspector General (OIG) to the
Congress" April-September 30, 2000
[4] "H1B Foreign Workers, Better Controls Needed to Help Employers and
Protect Workers", U.S. Government Accounting Office, Sept. 2000
[5] "Building a Workforce for the Information Economy", National Research
Council of the National Academies, October, 2000
Help to Keep ZaZona.com Online
Donate to the Cause at
http://www.zazona.com/Donations.htm
To Subscribe or Unsubcribe send an email to
Back to archives