ITAA Urges L-1 Visa Reform

Date: Tuesday, August 05, 2003 4:11 PM

JOB DESTRUCTION NEWSLETTER

www.ZaZona.com

If you recall I recently published a newsletter titled "Companies
replacing U.S. worker" where I did an extensive search for "TATA
Software". TATA claims that they can't hire American citizens because
this software is only taught in India. I'm enclosing a recent
newsletter by Dr. Norman Matloff, professor of computer science at UC
Davis, because he hasn't heard of "TATA Software" either.

> -----Original Message-----
> From: Norm Matloff [mailto:matloff@laura.cs.ucdavis.edu]
> Sent: Tuesday, August 05, 2003 2:14 PM
> To: Norm Matloff
> Subject: eWeek article

A few comments on the enclosed article:

At a Capitol Hill hearing this week, the Information Technology
Association of America released a paper that urges reform of the
controversial L-1 visa program.

This is the first time the ITAA has EVER conceded that there are any
problems at all with H-1B/L-1. Maybe this is a sign that Congress may
do something this year after all. Maybe.

But critics of the program claim that a loophole allows IT
consultancies with operations overseas to import foreign workers and
then contract them out to U.S. companies, which are not required by
law to pay L-1 visa holders prevailing U.S. wages. Some laid-off IT
workers claim they have even had to train their foreign

replacements.

This is really irritating. The contracting out is IRRELEVANT. In the
Siemens/Tata case, where Tata contracted out its L-1s to Siemens, would
NOT be "OK" if Siemens had imported L-1s directly from its own Indian
subsidiary (which it also did). The impact on American workers is the
same either way--the Americans lose their jobs to cheap foreign labor.
Thus the focus on the contracting out of the L-1s is highly misleading,
and I suspect that this is deliberate on the politicians' part.

Also, as I have mentioned, the passage above makes it sound like H-1B
is fine, i.e. that L-1 is the only problem. The fact is that H-1B
suffers from the same problems, including the prevailing-wage issue,
due to huge loopholes.

Aiming to prevent such misuse, the ITAA paper seeks to clarify what
qualifies as "specialized knowledge" in the IT industry. Knowledge

ubiquitous database management systems, operating systems or

software

languages such as COBOL, C++, and Java are not examples of
specialized knowledge, according to the ITAA. But "advanced

knowledge

of an employer's special process or methodology that is not

generally

held throughout the industry could be considered specialized
knowledge and would be an acceptable case for applying for an L-1
visa," the ITAA said in a statement.

Of course, what the ITAA is referring to is Tata's "secret software,"
Recall the following excerpt from the Dallas Morning News, June 15,
2003, in my e-newsletter posting titled, "TCS Lets the Cat Out of the
Bag":

India-based Tata Consultancy Services uses the L-1 visa program to
transfer employees to the United States and send them out on
consulting projects across the country. The primary reason is that
its workers in India are trained in Tata software - training not
available to U.S. workers, said resident manager of personnel

Girish

Surendran.

Like the secret sauce on a hamburger, no one knows what this secret
Tata software is, but as I've mentioned before, I believe it is likely
to be some sort of project management checklist related to Tata's use
of the CMM "twelve step program" for software development management.
In other words, it is not necessary to the technical completion of the
work. Indeed, how could it be? Tata does outsourcing work for
virtually every kind of software project, so there is no way that
technical software they might have would apply to all the projects.

In any case, as you can see, the ITAA's idea of "reform" is actually to
protect their MEMBERS, such as Tata, rather than to protect American
workers.

Also speaking before lawmakers Tuesday was Cornell Law School
professor Stephen Yale-Loehr, an immigration expert who claims that
alleged abuses of the L-1 visa program have been exaggerated.

I am really getting tired of seeing this about Yale-Loehr. He is only
a part-time professor at the school, and in actuality is a practicing
immigration lawyer with major vested interests in the H-1B/L-1
programs.

http://www.eweek.com/print_article/0,3668,a=45701,00.asp

August 1, 2003

ITAA Urges L-1 Visa Reform

By Shelley Solheim

At a Capitol Hill hearing this week, the Information Technology
Association of America released a paper that urges reform of the
controversial L-1 visa program.
The ITAA seeks to prevent misuse of L-1 visas, which some IT workers
say have cost them their jobs.

"The L-1 program is critically important to U.S. multinational
information technology firms as they compete globally," ITAA President
Harris Miller said in a statement released along with the report titled
"Proposed Guidance on L-1B Specialized Knowledge."

"However, as with any complex immigration program, we see some possible
areas of improvement in its administration by the Departments of State
and Homeland Security to insure that legitimate users have access and
to prevent possible abuses," the statement continued.

The L-1 visa program was created to allow multinational companies to
temporarily transfer employees with specialized skills from their
foreign subsidiaries, affiliates or parent companies to work on special
projects in the United States. But critics of the program claim that a
loophole allows IT consultancies with operations overseas to import
foreign workers and then contract them out to U.S. companies, which are
not required by law to pay L-1 visa holders prevailing U.S. wages. Some
laid-off IT workers claim they have even had to train their foreign
replacements.

Aiming to prevent such misuse, the ITAA paper seeks to clarify what
qualifies as "specialized knowledge" in the IT industry. Knowledge of
ubiquitous database management systems, operating systems or software
languages such as COBOL, C++, and Java are not examples of specialized
knowledge, according to the ITAA. But "advanced knowledge of an
employer's special process or methodology that is not generally held
throughout the industry could be considered specialized knowledge and
would be an acceptable case for applying for an L-1 visa," the ITAA
said in a statement.

Next page: One worker's 'humiliating' experience.

The ITAA released its paper at a hearing on Capitol Hill Tuesday, where
lawmakers had gathered to hear testimony from both sides of the L-1
visa debate.

One of the witnesses who testified before the Senate Committee on the
Judiciary Subcommittee on Immigration and Border Security was Patricia
Fluno, a computer programmer from Orlando, Fla. A former Siemens ICN
employee, Fluno claims that she was replaced by a foreign worker when
Siemens outsourced her job and others to Tata Consulting Services, of
India. Even worse, Fluno said, she was instructed to train her
replacement.

"This was the most humiliating experience of my life," Fluno told
lawmakers. "Our visa-holders replacements are sitting at our old desks,
answering our old phones, and working on the same systems and programs
we did but for one-third the cost."

Also speaking before lawmakers Tuesday was Cornell Law School professor
Stephen Yale-Loehr, an immigration expert who claims that alleged
abuses of the L-1 visa program have been exaggerated.

But according to the U.S. State Department, the number of L-1 visas
issued has steadily increased year-over-year for the last decade except
for the period from 2001 to 2002. The latest statistics indicate that
this growth will likely continue in 2003. For the first six months of
2003, 28,098 L-1 visas were issued, compared with 26,304 for the same
year-ago period, according to State Department spokesman Charles
Oppenheim.

Yale-Loehr said he also was concerned that if Congress enacts too
severe restrictions on the issuance of L-1 visas, "multinational firms
may conclude that it is too burdensome and unprofitable to do business
in this country a decision that would directly result in the loss of
employment for many U.S. workers."

Several lawmakers have proposed legislation in recent months that would
impose new restrictions on the L-1 visa program. Last week, Sen. Chris
Dodd, (D-Conn.) and Rep. Nancy Johnson (R-Conn.) introduced mirror
versions of The U.S.A. Jobs Protection Act of 2003 in the Senate and
House, respectively.

The bill would, among other things, extend the time workers must be
employed with companies before transferring to the United States on an
L-1 visa, reduce the time L-1 workers can remain in the United States,
and require that these workers be paid prevailing wages. Also under the
bill, U.S. employers would have to make a documented, "good faith"
effort to first fill the position with an American worker.
Additionally, the bill would extend the Labor Department's authority to
investigate potential violators of the law and to impose sanctions.

Johnson is also co-sponsor of a less restrictive bill introduced in May
by Rep. John L. Mica (R-Fla.) that aims to prohibit the outsourcing of
L-1 visa holders. Under the bill, companies would only be able to
employ L-1 visa holders from their foreign subsidiaries, not from third
parties.

Rep. Rosa DeLauro (D-Conn.) also introduced legislation in June that
would, among other things, place an annual cap of 35,000 on L-1 visas
and require L-1 workers to be paid prevailing U.S. wages. The bill
would also deny L-1s to any company that has laid off an American
worker in the six months before or after filing an L-1 application.

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Rob Sanchez is board member of NAEA - www.NAEA.US

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