Adding Fuel to the H-1B Fire

Date: Wednesday, January 26, 2005 6:15 PM

JOB DESTRUCTION NEWSLETTER

by Rob Sanchez
January 26, 2005 No. 1184

If you have web access, it's better to follow the link to this article
because there are links and a graph that are worth looking at.

This paragraph is perhaps the most important part of the article:

The job descriptions that Valley wanted to see, known
as Labor Condition Applications in Department of Labor
parlance, are required to be made publicly available when
a company submits a request for additional H-1B work visas.
The requirement is in place to give American workers fair
opportunity to compete for the jobs.

Surprisingly very few employees ever exercise their right to public
access to view on-site LCAs. That's a pity because the right to public
access is one of the few things in the H-1B regulations that actually
gives U.S. citizens a tool to fight back by finding out the truth.

Joe Valley and Guy Santiglia followed through on their demand for
public access and their employers complied. I hope their courage and
tenacity will set examples for others to follow.

This is a powerful tool to see what employers are up to and yet few
people have ever used it. It's a very powerful regulation because it
doesn't even require that the requestor be an employee. What this means
is that if you fear your company is hiring H-1Bs, or if you want to see
if you were replaced with an H-1B, using public access rights is the
way to find out.

To find out more about public access to files, use this link:

http://www.zazona.com/shameh1b/H1BFAQs.htm#WhatIsAccessFile

NOTE: Santiglia was an engineer at Sun Microsystems. He is not
mentioned in the article below but you can read about him by going to
the newsletter archive.

+++++++++++++++++++++++++++++++++++++++++++++++++++

http://www.techsunite.org/news/050126_h1b_fire.cfm

January 26, 2005

Adding Fuel to the H-1B Fire

Permanent Residency Raises Questions

By Jeff Nachtigal

When Texas Instruments employee Joseph Valley walked into the
companys law offices and asked for the job descriptions for new H-1B
visa positions, they told him he was the first employee to request to
see them.

Not long after, he was fired.

In August of 2003, Valley was given a scathing, out-of-the-ordinary
performance review and terminated for "using TI strictly private
information inappropriately," he says.

Valley, who worked for Texas Instruments for 10 years, believes that
with the companys increased use of foreign immigrant workers at its
Dallas headquarters is making it hard for American workers to find
work.

He points to periods over the last four years when the company offered
early retirement plans or announced reduction-in-force measures, and
then filed applications to hire hundreds of foreign H-1B visa workers,
as evidence that Texas Instruments has made little effort to recruit
American workers.

The job descriptions that Valley wanted to see, known as Labor
Condition Applications in Department of Labor parlance, are required to
be made publicly available when a company submits a request for
additional H-1B work visas. The requirement is in place to give
American workers fair opportunity to compete for the jobs.

Texas Instruments filed an LCA to hire a Test Engineer the day he was
terminated, according to Valley.

In September 2004, Valley filed a complaint with the Department of
Labor concerning Texas Instruments practice of beginning the
permanent residency application process for H-1B visa employees within
three months of their arriving in the U.S. He has also filed a wrongful
termination suit against the company citing national origin
discrimination.

"This is an unfair labor practice and immigration fraud," said Valley,
who wrote software to test semiconductor products, as a test engineer
in the group that designed and tested chips for projectors and TVs. "TI
should not be offering permanent residency to temporary, non-immigrant
workers, especially when the unemployment rate is so high."

Worker advocates and union leaders are concerned that the thousands of
permanent residencies, or green cards, being granted annually, along
with the annual allotment of H-1B visas, has resulted in a unreasonably
tough job market for U.S. workers in a period of high unemployment.

Department of Labor actions suggest that these concerns may be valid.

The Wage and Hour division of the Department of Labor is currently
investigating Valleys complaint. If evidence of criminal activity is
found, the case will be forwarded to the Office of the Inspector
General, which investigates fraud.

A Department of Labor investigator familiar with the case described
Texas Instruments actions as "brazen" and suggested that their
actions could merit a criminal investigation.

Texas Instruments Director of Government and Media Relations Dan Larson
confirmed that the permanent residency application process begins right
away for H-1B employees hired by Texas Instruments.

"The idea is not to let them go," Larson said.

"Electrical engineering is the key training we look for at TI," Larson
said, citing graduation rate statistics for electrical engineering that
show a decline of nearly 50 percent since 1987. "The number of people
graduating from American universities has gone down. At the same time,
the number that is increasing is foreign nationals, who are prime
candidates for H-1B status."

Larson emphasized that Texas Instruments hires any candidate who is
qualified

Therein lies the disconnect over the use of an increasingly foreign
national high-tech workforce: High-tech workers, employed and
unemployed, say they are well qualified for jobs if given the chance;
they say they are shut out of jobs because companies prefer to hire
foreign nationals who may be willing to work for less than the
prevailing wage, or take a steep pay cut from their skill level in
order to work in the U.S.

Industry representatives say hiring foreign workers is necessary
because there is a shortage of qualified U.S. workers.

A recent report published by the Office of the Inspector General lists
foreign labor certification as a "significant concern," which may
"result in the unlawful admission of foreign nationals and economic
hardship for domestic workers."

The report, dated Sept. 30, 2004, concludes that, "More broadly our
investigations continue to identify fraud against these programs by
immigration attorneys and labor brokers."

A General Accounting Office study in October of 2003 also raised
questions about the effects of H-1B visas on the labor force in this
country.

While the GAO study did not definitively answer the question of whether
H-1B workers earned less than U.S.-based workers in comparable jobs, it
suggested that, "Allowing unemployed H-1B workers to remain in the
United States may have implications for the labor force competition
faced by U.S. workers.

"Although some employers acknowledged that H-1B workers might work for
lower wages than their U.S. counterparts, the extent to which wage is a
factor in employment decisions is unknown."

Microsoft, Intel, IBM and Oracle are among the top 10 companies
requesting permanent residency for H-1B workers, according to the
Department of Labor. In 2004, Microsoft requested permanent status for
1,203 workers; 529 of the applications were certified. The software
company led applicants in both categories.

(Poultry processing companies occupied a high percentage of the top
applicants for permanent residency; Carolina Turkeys and Mountaire
Farms rank just behind Microsoft in number of workers granted permanent
status.)

The Department of Labor maintains a database of companies requesting
permanent residency. Records for H-1B visa requests are not made
public.

Hundreds of permanent residencies are granted each year and tens of
thousands of H-1B visas quot; the current cap is set at 65,000, plus
an exemption for 20,000 graduate students quot; are allotted
annually, there has been a steady siphoning off of job opportunities
for U.S. workers.

The University of Illinois at Chicagos Center for Urban Economic
Development found that over 17,000 high-tech jobs were lost in the
Dallas area during a three-year period ending in 2004, detailed in the
study Americas High Tech Bust. Likewise, the Institute of Electrical
and Electronics Engineers (IEEE) recently testified at a U.S.-China
Commission on Trade that their members are experiencing the first
decline in job placement and salary in 31 years due to global
"inshoring" instead of offshoring.

Joseph Valley now works as a real estate agent in Plano, Texas. The
real estate market is down this winter, he says. But Valley has kept
busy on other fronts, primarily drumming up support for investigations
in Texas Instruments and other companies that play fast with the H-1B
regulations at the expense of American workers.

Valley is skeptical that any real changes to the H-1B issue will be
enacted through legislative channels. He favors direct action by filing
complaints and prompting investigations anywhere a worker sees shady
corporate practices taking place.

"If we try the judicial branch we might get somewhere," he said.

When he worked with Texas Instruments, Valley said some of his
co-workers, who were working with H-1B visas, confided to him their
concerns about being paid less than the prevailing wage in their
positions. Valley has set up a Web site to encourage H-1B visa workers
to file complaints and sue for back pay.

Ultimately, hed like to be working on a level playing field that
gives him a fair shot at getting a job.

"Ive got a masters degree in computer science, and I cant get
a job," said Valley. "And that pretty sad."

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