There is no shortage of skilled workers in the USA for nearly any high-tech position, it's a matter of copmanies not wanting to pay market-rate wages to them that is the issue here. Solution: Any company wanting to hire an H-1B worker must #1 - Employ at least 50% of their staff in that same position using U.S. citizens. #2 - H-1B visa employees must receive a payroll wage within 10% of the pay range of the US employees in that position. #3 - Employment costs for US citizens (payroll taxes, Social security, etc) that do not apply to H-1B visas must be paid into a guaranteed fund divided among the US employees, in the form of either offsetting healthcare premiums, 401K/pension plan contributions, etc. #4 - Companies should have to prove that they offered "position X" at a pay rate within 10% of the current (or previous employee) pay ranges for that position, to all qualified applicants before accepting an H-1B.
Meeting these requirements would guarantee that a company would be fairly evaluating US employees to fill positions first (given higher training, retention, and turnover costs for H-1B workers), but would not penalize them for filling positions that need filling if H-1B are the only way to do it. This simple plan would also remove the stigma attached to the program by domestic workers, John would know that Raheed was hired because he or she was qualified, needed, and able, not because it was a cost-cutting move, and so would be more likely to support and work alongside of him in a more productive fashion. Besides blood-sucking unproductive cost-cutting by big business (ultimately reducing their competitiveness however as their permanent talent levels and cohesiveness fall apart), there are no real negatives to this plan until there are no domestically qualified applicants left for a position (at which point, the H-1B cap can be raised appropriately to maintain equilibrium with all US workers employed that desire to be). There should be ***0%**** unemployment at equivalent pay levels in any field that allows H-1B visas, before the visas are issued. This also has the benefit of showing students that going into these fields can and will be productive in their futures, as it is right now, these fields are shrinking in our education market, because people see that they can't get a return on the investment they need to become qualified, as the jobs won't be there, or the pay rates will be so depressed as to be unable to even pay off the student loans needed to be educated.
H-1Bs pay Soc Security Taxes but are not eligible to obtain any benefits. That's how the US Govt is filling up the shortfall in the Soc Security kitty.
H-1Bs pay Soc Security Taxes but are not eligible to obtain any benefits. That's how the US Govt is filling up the shortfall in the Soc Security kitty.
I will vote for Congresspeople who make the US more competitive. That means I will vote for people who make it easier for engineers and scientists to come to the US, i.e., for people who support an increase of the H1. In the long run, that is what helps everybody, including American engineers and scientists.
We read and hear about the U.S. not graduating enough engineers. Maxine Waters understands what is needed to increase the number of U.S. engineering students: less H1-Bs. College students are smart and will not major in engineering if the outlook for a career in engineering is dim. The people in the U.S. who want to increase outsourcing and the use of H1-Bs are motivated by greed and ignore or are apathetic to the damage they are inflicting upon the engineering base of the U.S.
Congress plans a 600,000 increase in the number of H-1bs next year!
Do you care about your career? Do you care about your families future? Help us stop Congress from raising the H-1b limit. Here is a link to a smart web page that will email an all written letter to your Congressional Representatives stating you opposition to the H-1b increase. Last year we stopped the H-1b increase. We can do it again if American workers put enough pressure on Congress. If this plan goes through then hundreds of thousands of Americans will both their jobs and careers. Please tell your friends and coworkers to do the same. The job you save may be your own.
Congress Considers a Massive 600,000 H-1b Visa Expansion, Gates Tells Congress Its Microsofts Top Priority By Marcus Courtney WashTech News
Congress is contemplating legislation that would allow up to 600,000 skilled professional guest workers to enter the U.S. in a single year. This would be the biggest one time expansion of the controversial H-1b visa program to date.
This increase comes after the high-tech industry is just beginning to recover from the economic recession of 2001, as a small demand for workers has been noticed.
Sen. Arlen Specter (R-PA) is drafting an immigration reform bill that contains the expansion of the H-1b visa program. Sen. Specter chairs the Senate Judiciary Committee, which has jurisdiction over immigration matters.
Microsoft's Bill Gates is spending his own personal political capital on this issue. He was in Washington D.C. last week lobbying for the changes. According to Washington Post columnist David Broder, Gates told me the "high-skills immigration issue is by far the number one thing" on the Washington agenda for Microsoft and for the electronics industry generally "This is gigantic for us." The article went on to say, So great is the demand for such skills in the burgeoning high-tech world, However, government studies have dismissed the notion the industry is facing a worker shortage.
Last week, WashTech News released information showing that wages at Microsoft have been stagnant for several years in the majority of pay scales. If a real skill shortage existed, as Mr. Gates claims, pay should be increasing not stagnating at his company.
In an analysis done by the AFL-CIO Department of Professional Employees, the bill would:
" Mandate a retroactive increase to 195,000 from the current 65,000 H-1B visa cap (exclusive of existing exemptions) for the years of 2004-2006, in effect allowing for a one-time visa grab by employers of nearly 400,000 visas!
" Increase the 65,000 visa cap to 115,000," a 60% hike!
" Require an automatic 20% annual hike in the new cap whenever the visas are exhausted, thus establishing a new annual cap for each successive year. This, in effect, rips the lid off of any meaningful annual visa limitation.
" Add still another open-ended exemption from the cap for any foreign national that has an advanced degree in science, technology, engineering or math from anywhere on the planet. At least the previous exemption authored by the committee restricted such visas to foreign graduates of U.S. institutions and limited it to 20,000 annually.
Taken together, within one year over 600,000 new foreign professionals could flood the U.S. market, the result of which would be to inflict serious economic harm on highly skilled, well-educated American workers, said the analysis.
Marcus Courtney is the President of WashTech/CWA Local 37083. He can be reached at courtney@washtech.org
A new study shows that companies hire foreign workers for cheap labor, not skill
Reality Check, By Ephraim Schwartz
October 25, 2005
It appears there is hard evidence to prove that employers are using the H-1B visa program to hire cheap labor; that is, to pay lower wages than the national average for programming jobs.
According to "The Bottom of the Pay Scale: Wages for H-1B Computer Programmers F.Y. 2004," a report by Programmers Guild board member John Miano, non-U.S. citizens working in the United States on an H-1B visa are paid "significantly less than their American counterparts." How much less? "On average, applications for H-1B workers in computer occupations were for wages $13,000 less than Americans in the same occupation and state."
Miano based his report on OES (Occupational Employment Statistics) data from the Bureau of Labor Statistics which estimates wages for the entire country by state and metropolitan area. The reports H-1B wage data came from the U.S. Department of Labors H-1B disclosure Web site.
Miano went out of his way to be balanced, and whenever possible he gave the benefit of the doubt to the employer. For example, he used OES data from 2003 because this is the wage information that would have been available to the employers when filing an LCA (labor condition application).
Miano had some difficulty matching OES job codes with LCA job titles, which employers typically create. Where both the OES and the LCA listed a job as "programmer/analyst," Miano took the conservative approach of assuming that the LCA was describing a programmer, a job title that typically earns a lower wage than a systems analyst.
Nonetheless, Mianos report shows that wages paid to H-1B workers in computer programming occupations had a mean salary of $52,312, while the OES mean was $67,700; a difference of $15,388. The report also lists the OES median salary as $65,003, or $12,691 higher than the H-1B median.
When you look at computer job titles by state, California has one of the biggest differentials between OES salaries and H-1B salaries. The average salary for a programmer in California is $73,960, according to the OES. The average salary paid to an H-1B visa worker for the same job is $53,387; a difference of $20,573.
Here are some other interesting national wage comparisons: The mean salary of an H-1B computer scientist is $78,169, versus $90,146 according to the OES. For an H-1B network analyst, the mean salary is $55,358, versus the OES mean salary of $64,799. And for the title "system administrator," there was a $17,478 difference in salary between the H-1B mean and the OES mean.
H-1B visa workers were also concentrated at the bottom end of the wage scale, with the majority of H-1B visa workers in the 10-24 percentile range. "That means the largest concentration of H-1B workers make less than [the] highest 75 percent of the U.S. wage earners," the report notes.
While it would be difficult to prove that any one particular employer is hiring foreign workers to pay less, the statistics show us that, for whatever reason, this is exactly what is happening on a nationwide basis. Miano says lobbyists will admit that a small number of companies are abusing the H-1B program, but what he has found in this research is that almost everyone is abusing it.
"Abuse is by far more common than legitimate use," he says.
*** Help us stop the H-1b increase. Here is a link to an already written oposition letter that will be sent to Congress opposing the H-1b increase. Please use the link email Congress. The career you save may be your own.
Not surprising that Mr. Miano's "study" comes to such conclusions, since it is the declared goal of his organization to abolish the H1 program. Gee, what a coincidence that they have a "study" supporting just that... I suggest quoting a real study instead of this pamphlet...
On February 20 Forbes.com told its readers with a straight face that "the American job-generation machine rolls on. The economy will create 19 million new payroll jobs in the decade to 2014." Forbes took its information from the 10-year jobs projections from the Bureau of Labor Statistics, US Department of Labor, released last December.
If the job growth of the past half-decade is a guide, the forecast of 19 million new jobs is optimistic, to say the least. According to the Bureau of Labor Statistics payroll jobs data, from January 2001 - January 2006 the US economy created 1,054,000 net new private sector jobs and 1,039,000 net new government jobs for a total five-year figure of 2,093,000. How does the US Department of Labor get from 2 million jobs in five years to 19 million in ten years?
I cannot answer that question.
However, the jobs record for the past five years tells a clear story. The BLS payroll jobs data contradict the hype from business organizations, such as the US Chamber of Commerce, and from "studies" financed by outsourcing corporations that offshore jobs outsourcing is good for America. Large corporations, which have individually dismissed thousands of their US employees and replaced them with foreigners, claim that jobs outsourcing allows them to save money that can be used to hire more Americans. The corporations and the business organizations are very successful in placing this disinformation in the media. The lie is repeated everywhere and has become a mantra among no-think economists and politicians. However, no sign of these jobs can be found in the payroll jobs data. But there is abundant evidence of the lost American jobs.
Information technology workers and computer software engineers have been especially heavily hit by offshore jobs outsourcing. During the past five years (Jan 01 - Jan 06), the information sector of the US economy lost 645,000 jobs or 17.4% of its work force. Computer systems design and related lost 116,000 jobs or 8.7% of its work force. Clearly, jobs outsourcing is not creating jobs in computer engineering and information technology. Indeed, jobs outsourcing is not even creating jobs in related fields.
For the past five years US job growth was limited to these four areas: education and health services, state and local government, leisure and hospitality, financial services. There was no US job growth outside these four areas of domestic nontradable services.
Oracle, for example, which has been handing out thousands of pink slips, has recently announced two thousand more jobs being moved to India. How is Oracle's move of US jobs to India creating jobs in the US for waitresses and bartenders, hospital orderlies, state and local government and credit agencies, the only areas of job growth?
Engineering jobs in general are in decline, because the manufacturing sectors that employ engineers are in decline. During the last five years, the US work force lost 1.2 million jobs in the manufacture of machinery, computers, electronics, semiconductors, communication equipment, electrical equipment, motor vehicles and transportation equipment. The BLS payroll job numbers show a total of 70,000 jobs created in all fields of architecture and engineering, including clerical personal, over the past five years. That comes to a mere 14,000 jobs per year (including clerical workers). What is the annual graduating class in engineering and architecture? How is there a shortage of engineers when more graduate than can be employed?
Of course, many new graduates take jobs opened by retirements. We would have to know the retirement rates to get a solid handle on the fate of new graduates. But it cannot be very pleasant, with declining employment in the manufacturing sectors that employ engineers and a minimum of 65,000 H-1B visas annually for foreigners plus an indeterminate number of L-1 visas.
It is not only the Bush regime that bases its policies on lies. Not content with outsourcing Americans' jobs, corporations want to fill the remaining jobs in America with foreigners on work visas. Business organizations lie about a shortage of engineers, scientists and even nurses. Business organizations have successfully used pubic relations firms and bought-and-paid-for "economic studies" to convince policymakers that American business cannot function without H-1B visas that permit the importation of indentured employees from abroad who are paid less than the going US salaries. The so-called shortage is, in fact, a replacement of American employees with foreign employees, with the soon-to-be-discharged American employee first required to train his replacement.
It is amazing to see free-market economists rush to the defense of H-1B visas. The visas are nothing but a subsidy to US companies at the expense of US citizens.
Keep in mind this subsidy to US corporations for employing foreign workers in place of Americans as we examine the Labor Department's projections of the ten fastest growing US occupations over the 2004-2014 decade.
All of the occupations with the largest projected employment growth (in terms of the number of jobs) over the next decade are in nontradable domestic services. The top ten sources of the most jobs in "superpower" America are: retail salespersons, registered nurses, postsecondary teachers, customer service representatives, janitors and cleaners, waiters and waitresses, food preparation (includes fast food), home health aides, nursing aides, orderlies and attendants, general and operations managers. Note than none of this projected employment growth will contribute one nickel toward producing goods and services that could be exported to help close the massive US trade deficit. Note, also, that few of these jobs classifications require a college education.
Among the fastest growing occupations (in terms of rate of growth), seven of the ten are in health care and social assistance. The three remaining fields are: network systems and data analysis with 126,000 jobs projected or 12,600 per year; computer software engineering applications with 222,000 jobs projected or 22,200 per year, and computer software engineering systems software with 146,000 jobs projected or 14,600 per year.
Assuming these projections are realized, how many of the computer engineering and network systems jobs will go to Americans? Not many, considering the 65,000 H-1B visas each year (650,000 over the decade) and the loss during the past five years of 761,000 jobs in the information sector and computer systems design and related.
Judging from its ten-year jobs projections, the US Department of Labor does not expect to see any significant high-tech job growth in the US. The knowledge jobs are being outsourced even more rapidly than the manufacturing jobs were. The so-called "new economy" was just another hoax perpetrated on the American people.
If offshore jobs outsourcing is good for US employment, why won't the US Department of Commerce release the 200-page, $335,000 study of the impact of the offshoring of US high-tech jobs? Republican political appointees reduced the 200-page report to 12 pages of public relations hype and refuse to allow the Technology Administration experts who wrote the report to testify before Congress.
Democrats on the House Science Committee are unable to pry the study out of the hands of Commerce Secretary Carlos Gutierrez. Obviously, the facts don't fit the Bush regime's globalization hype.
The only thing America has left is finance, and now that is moving abroad. On February 22 CNNMoney.com reported that America's large financial institutions are moving "large portions of their investment banking operations abroad." No longer limited to back-office work, offshoring is now killing American jobs in research and analytic operations, foreign exchange trades and highly complicated credit derivatives contracts. Deal-making responsibility itself may eventually move abroad.
Deloitte Touche says that the financial services industry will move 20 percent of its total costs base offshore by the end of 2010. As the costs are lower in India, that will represent more than 20 percent of the business. A job on Wall St is a declining option for bright young persons with high stress tolerance.
The BLS payroll data that we have been examining tracks employment by industry classification. This is not the same thing as occupational classification. For example, companies in almost every industry and area of business employ people in computer-related occupations. A recent study from the Association for Computing Machinery claims: "Despite all the publicity in the United States about jobs being lost to India and China, the size of the IT employment market in the United States today is higher than it was at the height of the dot.com boom. Information technology appears as though it will be a growth area at least for the coming decade."
We can check this claim by turning to the BLS Occupational Employment Statistics. We will look at "computer and mathematical employment" and "architecture and engineering employment."
Computer and mathematical employment includes such fields as "software engineers applications," "software engineers systems software," "computer programers," "network systems and data communications," and "mathematicians." Has this occupation been a source of job growth?
In November of 2000 this occupation employed 2,932,810 people. In November of 2004 (the latest data available), this occupation employed 2,932,790, or 20 people fewer. Employment in this field has been stagnant for the past four years.
During these four years, there have been employment shifts within the various fields of this occupation. For example, employment of computer programmers declined by 134,630, while employment of software engineers applications rose by 65,080, and employment of software engineers systems software rose by 59,600. (These shifts might merely reflect change in job or occupation title from programmer to software engineer.)
These figures do not tell us whether any gain in software engineering jobs went to Americans. According to Professor Norm Matloff, in 2002 there were 463,000 computer-related H-1B visa holders in the US. Similarly, the 134,630 lost computer programming jobs (if not merely a job title change) may have been outsourced offshore to foreign affiliates.
Architecture and engineering employment includes all the architecture and engineering fields except software engineering. The total employment of architects and engineers in the US declined by 120,700 between November 1999 and November 2004. Employment declined by 189,940 between November 2000 and November 2004, and by 103,390 between November 2001 and November 2004.
There are variations among fields. Between November 2000 and November 2004, for example, US employment of electrical engineers fell by 15,280. Employment of computer hardware engineers rose by 15,990 (possibly these are job title reclassifications). Overall, however, over 100,000 engineering jobs were lost. We do not know how many of the lost jobs were outsourced offshore to foreign affiliates or how many of any increase in computer hardware jobs went to foreign holders of H-1B or L-1 visas.
Clearly, engineering and computer-related employment in the US has not been growing, whether measured by industry or by occupation. Moreover, with a half million or more foreigners in the US on work visas, the overall employment numbers do not represent employment of Americans. Perhaps what corporations and "studies" mean when they claim offshore outsourcing increases US employment is that the contacts companies make abroad allow them to bring in more foreigners on work visas to displace their American employees.
American employees have been abandoned by American corporations and by their representatives in Congress. America remains a land of opportunity--but for foreigners--not for the native born. A country whose work force is concentrated in domestic nontradable services has no need for scientists and engineers and no need for universities. Even the projected jobs in nursing and school teachers can be filled by foreigners on H-1B visas.
In the US the myth has been firmly established that the jobs that the US is outsourcing offshore are being replaced with better jobs. There is no sign of these jobs in the payroll jobs data or in the occupational statistics. Myself and others have pointed out that when a country loses entry level jobs, it has no one to promote to senior level jobs. We have also pointed out that when manufacturing leaves, so does engineering, design, research and development, and innovation itself.
On February 16 the New York Times reported on a new study presented to the National Academies that concludes that outsourcing is climbing the skills ladder. A survey of 200 multinational corporations representing 15 industries in the US and Europe found that 38 percent planned to change substantially the worldwide distribution of their research and development work, sending it to India and China. According to the New York Times, "More companies in the survey said they planned to decrease research and development employment in the United States and Europe than planned to increase employment."
The study and discussion it provoked came to untenable remedies. Many believe that a primary reason for the shift of R&D to India and China is the erosion of scientific prowess in the US due to lack of math and science proficiency of American students and their reluctance to pursue careers in science and engineering. This belief begs the question why students would chase after careers that are being outsourced abroad.
The main author of the study, Georgia Tech professor Marie Thursby, believes that American science and engineering depend on having "an environment that fosters the development of a high-quality work force and productive collaboration between corporations and universities." The Dean of Engineering at the University of California, Berkeley, thinks the answer is to recruit the top people in China and India and bring them to Berkeley. No one seems to understand that research, development, design, and innovation take place in countries where things are made. The loss of manufacturing means ultimately the loss of engineering and science. The newest plants embody the latest technology. If these plants are abroad, that is where the cutting edge resides.
The United States is the first country in history to destroy the prospects and living standards of its labor force. It is amazing to watch freedom-loving libertarians and free-market economists serve as full time apologists for the dismantling of the ladders of upward mobility that made the America of old an opportunity society.
America has begun a polarization into rich and poor. The resulting political instability and social strife will be terrible.
Paul Craig Roberts was Assistant Secretary of the Treasury in the Reagan administration. He was Associate Editor of the Wall Street Journal editorial page and Contributing Editor of National Review. He is coauthor of The Tyranny of Good Intentions.He can be reached at: paulcraigroberts@yahoo.com
*** Help us stop the H-1b increase. Use the following link to email an all ready written protest letter to Congress opposing the H-1b increase. The career you save may be your own.
Suit alleges India firm collected employees' tax refunds
Suit alleges India firm collected employees' tax refunds
By Michele Chandler Mercury News
A citizen of India working in California filed a class action lawsuit Tuesday against his India-based employer, alleging that the company collected tax refunds owed to its non-U.S. citizen workers.
Gopi Vedachalam, who transferred to the Bay Area in 2000 from Bangalore, contends he was instructed to sign over his federal and state tax refund checks to international consultancy firm Tata Consultancy Services. U.S. citizens of the company, however, were not asked to sign over their returns, his lawsuit alleges.
Vedachalam was assigned by Tata Consultancy to work as a project manager at Target in Hayward, where he made $50,000 a year. From 2000 to 2005, the refunds he signed over to Tata Consultancy totaled $25,000, according to the lawsuit filed in San Francisco's federal district court. (The current median house price in Haywood California is $635,000. - jgm)
``As we understand it, that is his money,'' said his lawyer, San Francisco-based Steven Tindall.
An official with Tata Consultancy, which has 9,500 workers in North America, said he had not seen the lawsuit.
``To the best of my knowledge, we have not been officially served with the legal papers,'' Tata Consultancy spokesman Mike McCabe said. ``When we are, we will respond appropriately. We take this very seriously.''
If certified as a class action case, the suit would be one of the first filed against a company engaged in bringing non-U.S. citizens to the United States to work in American corporations, Tindall said. Vedachalam, 37, received an L-1 visa, which permits foreign companies to transfer workers to their U.S. subsidiaries, Tindall said. Vedachalam still works for Tata Consultancy; since 2003, he's been a project manager for 21st Century Insurance in southern California.
A leading global technology services organization, Tata Consultancy dispatches professionals, mainly engineers, to work on a contract basis with U.S. firms including IBM and Microsoft, Tindall said. On Monday, Tata Consultancy announced it had entered into a five-year research and development collaboration with Stanford University to work on joint projects focused on data privacy.
While the exact number of non-U.S. citizens working in California affected by the company's practices is not known, the lawsuit said Tata Consultancy employed hundreds of non-U.S. citizens throughout the state at the end of 2005.
Thousands of current and former Tata Consultancy employees are believed to have been affected by the practices, Tindall said. The lawsuit seeks to represent all non-U.S. citizen employees of Tata Consultancy who worked in the United States between Feb. 14, 2000 and the present.
In a statement, Vedachalam said he tried to recover his tax refund money through Tata Consultancy's internal procedures, ``but I was met with either silence or refusal.''
``I work hard for Tata and the companies I have been assigned to,'' Vedachalam's statement said. ``I should receive the full wages Tata agreed to pay me, as should all other Tata employees in America.''
Most of the company's workers stationed in the United States are non-U.S. citizens. It's a common practice in the technology industry, including among American-owned firms, to bring technology professionals from India and other countries to the United States, Tata Consultancy's McCabe said.
Tata Consultancy also kept non-U.S. employees from being paid for vacation time they did not use and could not roll over to the following year, according to the lawsuit. While all Tata Consultancy workers in the United States received 15 vacation days and could carry over five unused days to the next year, U.S citizens could get cash for any unused days, but non-citizens had to forfeit that pay, the suit said.
Only non-U.S. citizens who worked for Tata Consultancy in California from February 2002 through the present are eligible for the suit's broader claim pertaining to lost vacation wages. State law entitles California workers to receive pay for vacation time earned but not taken.
-------------------------------------------------------------------------------- Contact Michele Chandler at (408) 920-5731 or mchandler@mercurynews.com
One of the country's temporary work visa programs, used particularly by foreign technology workers, is being abused by companies looking to get around protections for American workers, according to a new government report.
The L visa, which is intended for foreign companies who want to transfer managerial employees or workers with "specialized knowledge" temporarily to the United States, has been abused to get around limits on other types of visas, according to the Department of Homeland Security's inspector general.
Congress has capped the number of workers who can come under the H-1B visa category each year at 65,000, but has not placed limits on the L-1 visa, which applies to workers with specialized knowledge. Also, the L visa does not require that workers are paid the "prevailing wage" so that American workers are not displaced.
"Software companies appear to be using the L visa to get around H quotas," one consular post in Southeast Asia told investigators. State Department officials often are called upon to double-check information abroad.
L visas have proven attractive for technology companies -- and particularly firms that outsource labor to India. Nearly 50 percent of the petitions received under the "specialized knowledge" category in fiscal 2005 were for people born in India.
The inspector general found that it is difficult for adjudicators at U.S. Citizenship and Immigration Services (USCIS) to determine what constitutes a manager, particularly because companies vary in size and organization. Adjudicators also have to rely on a company's claims about its own operations, a worker's status at the time of the petition and how a worker will be used in the United States.
In some cases, adjudicators said, applications were prepared by lawyers and "were either too vague, or conversely too technical, for the adjudicator to make appropriate decisions."
Sen. Charles E. Grassley, the Iowa Republican who inserted a provision into a bill to require the study, said it showed "extensive and well-known fraud and abuse in the L visa program."
"When our own consular officers agree that there are problems with the L visa program, something has to be done," he said. "We can't have companies bypass the H-1B visas just to get around protections intended to help American workers."
The inspector general concluded that although the claims about displacing U.S. workers "may have merit," it is not a significant national trend.
Angelica Alfonso, a spokeswoman for USCIS, said the report is accurate in saying L-1 visas are difficult to adjudicate and have "the potential of being exploited to fraud and abuse."
"USCIS has provided additional guidance to minimize such vulnerabilities. In addition, in 2006, USCIS plans to conduct a benefit fraud assessment to determine the nature and extent of fraud in the L-1A non-immigrant classification," she said.
The L-1A category applies to managers and executives.
The inspector general called for USCIS to come up with new ways to make sure overseas checks are made and has given the agency 90 days to respond.
(The following quote floors me; "The inspector general concluded that although the claims about displacing U.S. workers "may have merit," it is not a significant national trend."
An IEEE-USA analysis of BLS data showed that "from 2001 to 2004, while federal immigration officials processed 856,000 H-1B visa applications, national unemployment among high tech managers and professionals increased from 725,000 in 2001 to 1.3 million in 2004. During this same time another IEEE-USA analysis showed a 24% decline in the number of employed computer programmers, 23% in the number of employed electrical engineers, and 18% decline in employed computer scientists.
A rise in unemployment of over 400,000 in one sector is not a "significant national trend"?! How about last year (2005) when over 140,000 high tech workers, according to Challenger, Gray, and Christmas, lost their jobs during a "good" economy? That was up over 118,000 from the year before. I guess that is not a "significant national trend either.
How many American engineers have to lose their jobs before it's a "significant national trend"?
None of this surprises me however since the Department of Homeland Security can't count. In 2004 instead of letting in the 65,000 H-1b workers required by law they let in 76,000 H-1b workers. - stopoffshoring_
(Help stop the H-1b increase. Please use the following link to email Congress an oppostion email. The career you save may be your own. <a class="jive-link-external" href="http://www.unionvoice.org/campaign/H1B" target="_newWindow">http://www.unionvoice.org/campaign/H1B</a>)
Letter: I was told to train my H1-B replacements H-1B and L-1 Work Visas Submitted by jgm
EE Times
March 3, 2006
To the Editor,
Re: Engineers' pay will fall and This engineer's pay has already fallen 66 percent.
My salary too has fallen. It fell by 55 percent right after I trained my foreign replacement workers on H-1B and L-1 guest worker visas.
In my department, more than 20 Americans were ordered by corporate management to train our own replacements. Siemens ICN held out a carrot: Stay on and train your replacements, then we'll have this severance for you when you leave.
I spent five months training three Tata India employees. Each learned a different facet of my job. A 55 percent pay cut is not bad considering I was the lucky one; I found another job. Many of my former co-workers weren't so lucky.
You can't beat the corporate money that funds congressional campaigns that create these American Worker Replacement Programs . I strongly suggest American students avoid the technology and engineering fields.
Prof Matloff on Continued Efforts to Exploit Indentured Servants
Prof Matloff on Continued Efforts to Exploit Indentured Servants admin on Sunday, March 19 @ 21:10:28 EST : " Norm Matloff writes in his 15 March newsletter: I predicted that the guest worker bill program would really NOT be about illegal immigration, but instead would really be about importing cheap labor from around the world to fill all types of jobs, especially the white collar ones. Well, that is exactly what is in the Specter bill."
Last week I reported on a far-reaching immigration reform bill by Sen. Arlen Specter, currently being marked up in the Senate. See
I noted that the bill did not have a number yet, and thus was on Congress' Web page, <a class="jive-link-external" href="http://thomas.loc.gov" target="_newWindow">http://thomas.loc.gov</a> There has been some information on the bill in the press and on the Web sites of some immigration reform organizations, but both are very short on details. And as they say, "the devil is in the details."
Yet the Beltway insiders seem to have no problem getting copies of the bill. The immigration attorney and industry lobbies clearly have this access, as does at least one of the immigration reform organizations. But the rest of us are on the outside looking in.
Fortunately, immigration attorney Greg Siskind obtained a copy and has published his analysis of it in the enclosed article. Some of its provisions are startling, aspects not mentioned in the San Francisco Chronicle article or on the immigration reform organization Web pages.
This is a highly complex bill. What will get it the most press, of course, is its proposal of a very broad guest worker program, but it has other sections which would have huge implications for programmers and engineers who are U.S. citizens and permanent residents. To describe the effect the bill would have on American techies, let's put it this way: The phrase, "final nail on the coffin" immediately comes to mind.
By the way, for those of you readers who are techies, if you ever thought that all these guest worker proposals are aimed at undocumented people working as farm workers and hotel maids, think again. More than a year ago, I predicted what would happen. See
I predicted that the guest worker bill program would really NOT be about illegal immigration, but instead would really be about importing cheap labor from around the world to fill all types of jobs, especially the white collar ones. Well, that is exactly what is in the Specter bill.
First of all, note that Specter's bill sets up TWO guest worker programs, one for illegals and the other general. See, I told ya so! It really is much broader than for the illegals.
Second, Specter's general guest worker program, which he would name H-2C, would indeed cover many techie jobs. Here's what I said last year:
* And even the programmer and engineer jobs would be vulnerable. Sure, * the program structure could include a provision saying something like, * "Not for jobs normally requiring a Bachelor's degree," but so what? The * employers would suddenly decide that many programming and engineering * jobs don't need a Bachelor's. If it weren't so sad, it would be comical * to watch, say, Sun Microsystems, use this new program to hire * sub-Bachelor's workers for the same jobs that Sun is now insisting * require a Bachelor's degree (the requirement for H-1B).
Sure enough, it turns out that the only restriction Specter's H-2C has on job type is that the job not be covered by H-1B (and a couple of other ingredients in the nonimmigrant visa alphabet soup). Well, as I mentioned last year, the only requirement H-1B has is that the job requires a Bachelor's degree. So, another prediction come true.
And I didn't choose Sun Micro out of the blue. On the contrary, Sun has proudly discussed its community college program for hiring system administrators. In other words, people with only Associate of Arts degrees. And get this: Sun hires lots of H-1Bs as system administrators, implying that Sun considers it to be a job requiring a Bachelor's degree. In other words, they're having it both ways, and with H-2C they'd be in clover.
Now, let's discuss the bill's provisions regarding H-1B and employer-sponsored green cards. I'll introduce each one by quoting from Siskind's article, starting with this:
* The Spector bill makes important changes regarding student * visas. First, F-1 optional practical training time is now extended * from one year to 24 months. (Section 408). A new F-4 student visa * is created for students pursuing advanced degrees in math, * engineering, technology or the physical sciences. F-4 students would * need to either return to their country of origin or remain in the US * and pursue a job in their field and then pursue permanent residency. * F-4s will be dual intent and the status can be extended while * the applicant pursues permanent residency through a labor * certification or other means. The alien must be working in his * field as well to qualify to adjust status.
That OPT provision seems inoccuous but is very significant. Here's why:
For the last 5-10 years, it has been typical in the industry to have a policy in which it is very difficult for a new graduate to get a software development job without having had internship/co-op experience. And if you don't get into a development position at the beginning, it is quite difficult to get one later. In other words, internship/co-op experience is crucial to being able to have a development career.
Moreover, often in internship/co-op positions a bond develops between the employer and student, making it much easier for the student to get a permanent job with the employer after graduation.
Again: Internship/co-op positions play a key role in getting good jobs in this field.
But internship/co-op experience is difficult to come by these days. Yet many of these jobs are taken by foreign students, who have the right to work via OPT.
The main thing which has served as a damper on that effect is that OPT has been limited to one year. Many foreign students have been reluctant to use any of that one-year time, because they want it to apply to their permanent job in the U.S. after graduation. If H-1B visas are in short supply when they graduate, employers can still hire them under OPT.
In other words, this doubling of OPT time is (a) specifically aimed at enhancing the ability of foreign students to work in the U.S. and thus reduce job opportunities for American students, and (b) would have the additional effect of literally making it impossible for many American students to ever enter the software development field.
And the following provision means that they don't have to use any of their OPT time for their internship/co-op work:
* Section 407 also would allow F-1 and F-4 students to accept * off-campus jobs outside of the students field if the student is * enrolled and in good standing at their educational institution, an * employer provides...
So after graduation, the employer would not need to use up an H-1B visa on the foreign student for a full two years.
The "dual intent" provision would reverse a long-held tenet of the student visa concept. When a student in another country applies for a visa to attend a U.S. school, she is asked to confirm that she intends to return home after graduation. Of course, many have no such intention, and sadly, the U.S. system is forcing them to lie in their very first contact with the U.S. Dual intent, which means they also wish to become permanent residents of the U.S., at least would make them honest, but again the overall aim here is to enhance the ability of foreign students to get U.S. jobs.
Now here is a real shocker:
* Section 409 waives the labor certification recruitment requirement for * those with advanced degrees in the sciences, technology, engineering * or math from American universities.
As I've said before, the current labor certification process is riddled with loopholes. As I've pointed out countless times, immigration attorney Joel Stewart has said, "Employers who favor aliens have an arsenal of legal means to reject all U.S. workers who apply" ("Legal Rejection of U.S. Workers," Immigration Daily, April 24, 2000; available at www.ilw.com/articles/2000,0424-Stewart.shtm). Yet, to do away with the labor certification process entirely, as this provision of the Specter bill would do, is simply outrageous.
And it would create its own demand, of students abroad who would say, "Hey, it's that easy?"
Keep in mind, (a) we are overproducing people with MS/PhDs as it is, and (b) the vast majority of the foreign graduate students are NOT "the best and the brightest." See
This next one is equally onerous, but not shocking, since I predicted it the other day:
* Section 409 exempts aliens who have earned advanced degrees in * science, technology, engineering or math and have been working in * their fields under a non-immigrant visa in the three years prior to * filing for adjustment, recipients of national interest waivers, * immediate relatives of aliens granted employment-based immigrant visas * are exempt from green card quotas.
The key phrase here is "working...in the three years." Here is what I wrote the other day, before I knew the details. The San Francisco Chronicle article had simply said that "Other provisions include a new F-4 visa category for students pursuing advanced degrees in science, technology, engineering or mathematics. These students would be granted permanent residence if they find a job in their field and pay a $1,000 fee toward scholarships and training of U.S. workers." I commented:
* How exactly would this provision of Specter's bill work? If the foreign * student really can petition for a green card on his own, without * employer sponsorship, that would remove a lot of the exploitability of * the H-1Bs. That would be great if it were the case, but the article * here says the student must get a job in the field. This implies some * role for the employer in the green card process, and you can bet that * the industry lobbyists will vigorously push Congress to make that role * just as strong as it is now. If the bill passes, they'll then push BCIS * (formerly INS) to write the regulations this way too. The result will * be that the the H-1Bs with U.S. graduate degrees will be exploited just * as much as before.
So, as you can see from Siskind's summary, there indeed is an employer tie. The foreign worker will have to have been "working in the field" for three years. He must put in that time. What happens if the firm he is working for goes out of business? How long does he have to find another job? You can bet that he'll look for the most stable job, and stick with it even if he's being paid low wages. Remember, all the foreign worker has to do is find SOME job in his field SOMEWHERE. So he becomes the Web site operator for the local sidewalk peanut vendor, literally and figuratively working for peanuts, sticks with it for three years, and gets his green card. I am not exaggerating much when I talk about peanut vendors here.
* The H-1B cap is lifted for three years to 115,000. (Section 409). * After that, the cap will remain at 115,000 but may rise up to 20% per * year if the whole cap is used up in the prior year. If the cap is not * reached, then the cap the next year will remain the same as the * current year.
An obvious disaster for American programmers and engineers. I keep hearing from readers that every time the H-1B cap is exhausted they start getting calls from recruiters.
* Title V Backlog Reduction
* Allows recapture of unused visa numbers and increases employment-based * green cards from 140,000 to 290,000. Visas for spouses and children * shall not be counted against the numerical limits. ... * The per country limits are raised from 7% to 10%. (Section 502).
As I've said before, these would actually be good things, as they would reduce the window of exploitability for the H-1Bs, and thus make them less attractive to employers in the first place.
* Subtitle B Grant Programs to Assist Nonimmigrant Workers * * Provides funding for grants and to underwrite various education and * training campaigns.
Immigration Daily: the news source for legal professionals
Comprehensive Immigration Reform Act Of 2006
by Gregory Siskind
The Specter bill is a compromise bill that is designed to bridge the gap between the enforcement-only approach of the Houses Sensenbrenner bill and the broad legalization provisions found in the McCain-Kennedy immigration bill introduced last year. Most of the enforcement provisions from the Sensenbrenner bill remain, but the Senate bill provides for new guest worker programs designed to ensure employers can access needed workers and that the large undocumented population in the US can be put into legal status. The bill does not grant permanent residency to the undocumented, but it does make it possible for workers to get to the back of the line and pursue a green card legally.
The Specter bill is still being revised, but changes now being introduced are relatively modest compared. Important amendments may still be offered and the bill still may not pass in the Senate, but we decided to proceed with offering a detailed review of the 305 page piece of legislation.
If the Specter bill passes, the House will need to reach a compromise regarding how they will proceed. In December, the House passed the Sensenbrenner reform package. That bill mainly focuses on immigration enforcement, while the Specter bill covers enforcement as well as legal immigration (including the creation of a guest worker program that would be available to out of status immigrants). Whether the House will go along with accepting those changes is far from certain at this point.
The Specter bill has already drawn fire from pro and anti-immigration groups. Certain harsh provisions from the Sensenbrenner bill (including making it a felony to fall out of immigration status) made it into the Specter bill. And the Specter bill includes two new guest worker visa programs a general program and another for workers in the US without legal status.
While many, many more people will be able to legally work in the US and while green card quotas will rise significantly, it is still very likely that there will be long waits for green cards after the legislation passes. One can easily envision a system where it would take a decade or more for people to eventually achieve permanent residency status. Nevertheless, a long path to permanent residency will likely be seen by immigration advocates as preferable to no path at all. And the ability of illegal immigrants to be able to work, travel home freely and have family members with them in the US will probably convince many that this is a better alternative to the status quo.
We will be monitoring this legislation closely in the weeks and months to come. If I were a betting man, I would still put the odds at no better than 50-50 that the bill will pass. But the picture will become much more clear especially if Senator Frist is able to achieve his goal of getting the Specter bill to the Senate floor for a vote within the next month.
Below is a section-by-section summary of key provisions.
Title I Border Enforcement
Subtitle A Assets for Controlling United States Borders
This section of the bill authorizes a number of new border protection officers and inspectors for a multiyear period. Purchases of a number of technological assets like new unmanned aerial planes are authorized. (Section 102). New ports of entry are also authorized. (Section 105).
Subtitle B Border Security Plans, Strategies and Reports
This section requires the Department of Homeland Security to prepare various reports on border security.
Subtitle C Other Border Security Initiatives
This section requires DHS to integrate biometric databases by October 1, 2007. (Section 121). It also mandates DHS submit a timeline for the extension of the US-VISIT exit-entry system to all ports of entry. (Section 124)
All immigration-status documents, other than interim documents, issued by DHS must be machine-readable, tamper resistant and incorporate biometrics by October 26, 2007. (Section 126).
Section 127 of this bill would expand Section 222(g) of the Immigration and Nationality Act concerning the cancellation of visas after an alien overstays an I-94. The new provision would void ALL visas in possession of the immigrant and not just the particular visa that was tied to the overstay. In other words, an overstay on a work I-94 would trigger the cancellation of a visitor visa that may also be in the passport. The provision would, however, now allow a person to reapply for the visa in the country of last residence and not just in the country of nationality (as is currently required).
Permanent residents would now be required to provide biometrics upon entry and exit from the US just like non-immigrants. Failure to comply will be a new ground for inadmissibility. (Section 128)
Finally, this section requires DHS to prepare a report on imposing a barrier along both the southern border. (Section 129)
Title II. Interior Enforcement
Subtitle A General Enforcement
This subtitle bars aliens inadmissible on terrorism-related grounds from receiving political asylum and also broadens the bar on availability of cancellation of removal, withholding of removal and voluntary departure as well as eligibility for admission for those found to be security threats. This section shall apply retroactively to those currently in removal and exclusion proceedings. (Section 201).
The Supreme Court decision in Zadvydas v. Davis is addressed. That decision strictly limits the ability of DHS to detain an alien ordered removed when the government has not managed to remove the alien (usually because the US does not have good relations with the home country). DHS would now have discretion with few limits to detain someone beyond the removal period. DHS would have to certify every six months that the alien is likely to be removed in the reasonably foreseeable future, the alien poses a threat to the public (either for health or safety reasons). The Commissioner of Immigration and Customs Enforcement must personally sign off on the certification. This section also makes it more difficult to be released after an order of removal has been issued and while criminal proceedings are under way. (Section 202).
This section makes various changes to laws surrounding aggravated felons. First, it broadens the definition of aggravated felony to include convictions even when the sentence that is the basis of being an aggravated felony is tied to recidivist or other enhancements. (Section 203).
The definition of aggravated felony would be expanded in alien harboring and smuggling cases as well. Persons who knowingly hire at least ten individuals smuggled in to the US in a twelve month period would be guilty of an aggravated felony. Persons found guilty of buying or selling vehicles, vessels or aircraft used in alien smuggling would be guilty of an aggravated felony. (Section 203).
Marriage fraud and EB-5 fraud for which the term of imprisonment is at least a year would now be aggravated felonies. (Section 206).
Asylees convicted of aggravated felonies would no longer be eligible for waivers to adjust status to permanent residency. (Section 206).
Good moral character would not apply in cases where a person is convicted of a crime that is not defined as an aggravated felony at the time it occurs but is later classified as an aggravated felony unless the crime is more than ten years old and the applicant is granted a waiver by DHS.
Any alien who a consular officer or a DHS officer knows or has reason to believe is a member of a criminal street gang or has participated in a gangs activities is inadmissible. (Section 205)
Responsibility for the Temporary Protected Status program is transferred from the Department of Justice to DHS. DHS will have the authority to terminate TPS status for any reason and DHS will be authorized to extend TPS status in increments of up to 18 months. Bars gang members from TPS status and clarifies that a TPS aliens immunity from detention only extends to detention based on immigration status and not other grounds. (Section 205).
Section 205(c) contains one of the more controversial sections of the Sensenbrenner bill. It would criminalize providing material assistance to illegal aliens and would seemingly make felons out of non-profit and religious organization workers who provide housing, travel, food and medical assistance to illegal aliens. The bill does insert a provision that says religious organizations shall not be guilty of alien smuggling if the minister or missionary has been a member of the denomination for at least a year.
The penalty for certain people found guilty of hiring unauthorized workers is increased shall be increased to 10 years.
The other most controversial section of the Sensenbrenner bill makes it in to this Senate bill as well. Section 206(a) would make it a felony to knowingly be in the US unlawfully whether by illegal entry or overstaying or violating the terms of a legal entry. The first violation is punishable by imprisonment of up to six months.
The summary of the legislation provided by Senator Specter speaks to Section 206 (c) which would increase penalties for marriage and EB-5 fraud. However, the actual text of the legislation does not contain a Section 206(c).
Section 207 makes it tougher to avoid criminal sanctions for illegally reentering the US after a deportation order. For example, the standard to attack an underlying removal order is increased. And it makes it a crime to aid or abet illegal reentry. However, this does not include providing humanitarian services such as providing food or medicine or transporting someone to a place where they could receive either.
The Specter bill has provisions creating a new crime for trafficking in passports. Furthermore, willfully making false statements in a passport application is a felony. The current standard requires showing a higher standard of intent. (Section 208)
The misuse of any immigration document would be criminalized in a manner similar to the Sensenbrenner bill. (Section 208 and 209)
Section 210 would allow states to hold illegal aliens for up to 14 days after completing criminal sentences in order to more easily transfer custody to Immigration and Customs Enforcement. The section would also extend the use of the Institutional Removal Program (IRP) which identifies removable aliens in Federal and State prisons.
Section 211 would tighten voluntary departure rules including shortening the affirmative voluntary departure period from 120 days to 60 days and the voluntary departure in removal proceedings from 60 to 45 days.
The statute of limitations for all immigration related crimes would be made a uniform ten years (Section 214).
The completion of any visa or status processing by DHS and the Justice Department will be barred while background and security clearances are pending. (Section 216).
TITLE III Increased Worksite Enforcement and Penalties
Section 301 of the Specter bill covers the unlawful employment of aliens. Employers would now be required to not only comply with I-9 rules, but also with a new Electronic Employment Verification System that is a permanent implementation of the basic pilot program that has been in existence for the last few years. Implementation of the electronic system will be rolled out over several years with the largest employers being required to participate first and then smaller employers later. DHS is also permitted to charge employers taxes tied to use of the system. This section also recognizes DOLs authority to investigate employers under the Fair Labor Standards Act of 1938.
For civil enforcement purposes, employers who hire ten unauthorized workers within a calendar year are presumed to have known that the workers were unauthorized. Knowingly hiring unauthorized workers carries tougher penalties than unknowingly hiring unauthorized workers. Employers who attempted in good faith to comply with the I-9 rules do have a defense, however, until electronic verification system participation is required.
DHS may require an employer to certify employment verification compliance based on an internal review as an alternative to a DOL audit. An employer will be granted a 60 day deadline that may be extended in the discretion of DHS.
Section 304 mandates that false claims to either citizenship or nationality are grounds for inadmissibility. Currently, just the former is. This has been a defense in removal cases because the I-9 form asks if someone is a citizen or national of the US while immigration law only penalizes claims of false citizenship.
Title IV Nonimmigrant and Immigrant Visa Reform
H-2C Visas
Section 401 creates a new H-2C visa. This visa appears targeted to workers either outside the US or currently in legal status in the US. A separate guest worker program targeted at out of status workers is outlined in Title VI.
The visa is available to those coming to the US temporarily to perform temporary labor or services other than labor or services covered in H-1B, H-1C, H-2A, H-2B, H-3, or L, O, P, or R visas. The applicant must have a residence in a foreign country which the applicant has not intention of abandoning. The visa will become available one year after the date of enactment of the law and shall apply to aliens outside the US on the effective date. Rules must be released by DOL within six months of the enactment of the law.
Section 402 outlines the H-2C requirements. The employer must be capable of performing the services that are the subject of the petition. The worker must show that the he or she has received a job offer from a qualified employer. The worker must pay a $500 visa issuance fee in addition to the cost of adjudicating the petition (and this is in addition to consular reciprocal fees). Workers must have a medical examination at the workers expense. Workers must submit background information on health, criminal and security issues.
Changes of status to other visa categories are not permitted.
H-2Cs are available for an initial term of up to three years with a one time renewal for three more years. The alien is then required to depart the US for one year in order to qualify for additional H-2C time. Commuters into the US are not subject to the time limits.
H-2C status will be lost if a worker is unemployed for 45 or more consecutive days and the worker will be required to return to his or her home country. DHS may waive the return requirement.
Travel in and out of the US is permitted and return on an unexpired I-94 is allowed even if the visa has expired. Time spent outside the US shall not extend the period of authorized admission in H-2C status.
H-2C holders who fail to depart within 10 days after the H-2C status terminates are barred from most immigration rights.
Anyone who enters or attempts to enter the US without inspection after enactment of the H-2C provisions will be barred for ten years receiving most immigration benefits.
The H-2C is portable and workers can move to new jobs as long as the new employer complies with the terms for H-2C employment.
Denials of H-2C status may not be appealed.
H-4 visas many be granted to spouses and children. H-2C visa holders must pay a $500 family supplemental application fee plus normal visa costs. Dependents must also get medical exams and have background checks. H-2C visa holders must demonstrate adequate finances to support family members coming on H-4s.
Section 403 spells out an employers obligations when hiring H-2C workers. Employers must attest that
- Hiring the H-2C will not adversely wages and working conditions for US workers.
- The employer did not and will not cause US workers to lose their jobs by hiring the H-2C worker. There is a 90 day look back and look forward provision.
- The worker will be paid the higher of either the actual or prevailing wage. Private wage data may be used.
- There is no strike or other form of work stoppage.
- The employer is covered by a state workers compensation program, the employer will provide at no cost to the worker insurance covering injury or illnesses arising due to the job. The insurance would need to be comparable to state workers compensation programs.
- Notice to workers is provided
- Unless DOL has precertified a shortage, the employer can show there are not sufficient workers able, willing and qualified and immediately available to perform the job. Good faith recruiting efforts must be undertaken in the three month period prior to filing (with recruiting ending at least 14 days prior to filing). The job must be advertised at the actual wage paid by the employer.
- The job must be bona fide.
- Employers must maintain public access files.
- The employer must notify DOL and DHS when an H-2C leaves the employer within three business days after the departure.
- The petition must be filed not more than 60 days before the date the services are needed.
DHS shall have the authority to audit employers to ensure compliance. Employers are required to retain records for five years from the date the petition is filed. (Section 403) They are also required to maintain records for at least one year that describe why US workers were not hired (Section 406).
Employers who misrepresent facts or fail to comply with the terms of the program can be barred for up to three years from sponsoring or employing H-2C workers. And punishing whistleblowing employees or former employees is prohibited.
Foreign labor contractors recruiting H-2C workers are required to disclose a variety of details to H-2C workers at the time of their recruitment including information on the proposed place of employment, the pay, the type of work, who is paying travel expenses, whether there is a strike or other similar labor dispute, whether the contractor is getting a commission based on the workers services, details regarding insurance and workers compensation coverage, and information on the risk of work related injuries. Foreign labor contractors are prohibited from charging the H-2C worker for their services.
Foreign labor contractors will be required to register with the Department of Labor and employers may only use the services of registered contractors. DOL will issue two year renewable certifications of these contractors. H-2C workers will also have the ability to lodge complaints against contractors with the DOL. The DOL will have the discretion to require contractors be bonded and may also deny certification if it determines the contractor lacks sufficient ties to the US to adequately enforce these rules.
Employers are subject to civil fines of $2000 up to $35,000 per worker depending on whether the violation is willful and whether a worker was harmed. Imprisonment of up to six months and additional fines of up to $35,000 are possible if a willful violation occurs and an individual suffers extreme physical or financial harm.
Under Section 404, DHS is required to set up an alien employment management system to manage and track the employment of H-2C immigrants. Employers shall be able to recruit and advertise employment opportunities through the system.
The Department of Labor must set up an electronic job registry that provides information on job opportunities for US workers in order to ensure US workers are not being passed over in favor of foreign workers. And DOL must set up a publicly accessible web page that provide a single Internet link to each State workforce agencys electronic registry of jobs available throughout the US. (Section 406)
The US shall negotiate bilateral treaties with countries sending H-2C workers requiring the countries to accept the return of nationals ordered removed from the US within three days of such removal. (Section 410)
Foreign Students
The Spector bill makes important changes regarding student visas. First, F-1 optional practical training time is now extended from one year to 24 months. (Section 408). A new F-4 student visa is created for students pursuing advanced degrees in math, engineering, technology or the physical sciences. F-4 students would need to either return to their country of origin or remain in the US and pursue a job in their field and then pursue permanent residency. F-4s will be dual intent and the status can be extended while the applicant pursues permanent residency through a labor certification or other means. The alien must be working in his field as well to qualify to adjust status. Applicants for adjustment under this new section would pay a fee of $1000 which will fund scholarships and fraud prevention.
Section 407 also would allow F-1 and F-4 students to accept off-campus jobs outside of the students field if the student is enrolled and in good standing at their educational institution, an employer provides the school and the Labor Department with an attestation that it has spent 21 days unsuccessfully recruiting for the job and is paying the higher of the actual or prevailing wage, and the student will work no more than 20 hours during the academic term or 40 hours per week on vacations.
Section 409 exempts aliens who have earned advanced degrees in science, technology, engineering or math and have been working in their fields under a non-immigrant visa in the three years prior to filing for adjustment, recipients of national interest waivers, immediate relatives of aliens granted employment-based immigrant visas are exempt from green card quotas.
Section 409 waives the labor certification recruitment requirement for those with advanced degrees in the sciences, technology, engineering or math from American universities.
The H-1B cap is lifted for three years to 115,000. (Section 409). After that, the cap will remain at 115,000 but may rise up to 20% per year if the whole cap is used up in the prior year. If the cap is not reached, then the cap the next year will remain the same as the current year.
Title V Backlog Reduction
Allows recapture of unused visa numbers and increases employment-based green cards from 140,000 to 290,000. Visas for spouses and children shall not be counted against the numerical limits. Immediate relatives would no longer be counted against the 480,000 annual cap on family-based immigration. (Section 501).
The per country limits are raised from 7% to 10%. (Section 502).
The allocation of family-sponsored visas is shifted as follows (Section 503): * 10% - F1 unmarried sons and daughters of citizens * 50% - F-2 spouses, minor children and unmarried adult sons and daughters of permanent residents (77% of these go to spouses and minor children of permanent residents) * 10% - married sons and daughters of US citizens * 30% - brothers and sisters of citizens
The allocation of 290,000 employment-based visas is shifted as follows (Section 503): * 15% for EB-1 (was 28.6% but presumably many will now qualify in the new uncapped category for certain advanced degree holders) * 15% for EB-2 * 35% for EB-3 * 5% for investors (redesignated as EB-4) * 30% for new EB-5 for other workers (old EB-3 unskilled workers).
The immediate relative category is changed to let children of spouses and parents of US citizens to obtain legal status and travel to the US to be with their families.
Title VI Conditional Nonimmigrant Workers
Subtitle A Conditional Non-Immigrant Work Authorization and Status
In addition to the H-2C visa program described in Title IV, the Specter bill creates an alternative guest worker program called conditional non-immigrant status.
Anyone present in the US before January 4, 2004 and employed in the US since then will be eligible for conditional nonimmigrant work authorization and status. Applicants must submit to medical examinations and pay all back income taxes. Applicants must be submitted within a year of passage of this law. Employers are required to pay a $500 fee. (Section 601)
DHS is required to begin accepting applications within three months after the date of enactment. DHS shall process all cases within 18 months.
Despite prior status violations, recipients of these visas will have the ability to travel.
Spouses and minor children can accompany a conditional nonimmigrant if they submit a fee of $100 per family member. They may not work on the basis of being a dependent.
Failure to be employed for a 45 days stretch will render a person subject to the loss of their work status.
The conditional nonimmigrant visa is portable and employees can switch employers if they are complying with the terms of the conditional status.
An alien who fails to apply for this program will be ineligible for any relief unless the alien could not obtain such status due to reasons of age, mental impairment or physical disability.
While applications are pending, applicants will be considered to be in legal status and entitled to interim work authorization. Employers are also granted safe harbor status if they cooperate with an applicant seeking conditional non-immigrant status.
Subtitle B Grant Programs to Assist Nonimmigrant Workers
Provides funding for grants and to underwrite various education and training campaigns.
Title VII Immigration Litigation Reduction
Subtitle A Appeals and Review
This provision would now require all immigration cases to be handled by the US Court of Appeals for the Federal Circuit and that court will be increased in size by three judges to 15. This provision only applies to decisions entered on or after the date of enactment of the new law. (Section 701)
The Board of Immigration Appeals is granted the authority to issue an order of removal without remanding the case to an immigration judge. (Section 703).
Decisions to revoke a visa and a removal order predicated on this is no longer reviewable except as it relates to questions of statutory interpretation or alleged constitutional problems. (Section 704).
Attorneys fees under EAJA are not to be paid in immigration cases for aliens who are removable, except when the DOJ or DHS determination regarding removability was not substantially justified. (Section 709)
Subtitle B Immigration Review Reform
The President will now choose the Director of the Executive Office for Immigration Review. (Section 711). The Director shall choose appoint a Chief Immigration Judge. (Section 713). The Director, in consultation with the Chief Immigration Judge, shall appoint immigration judges. Judges will be granted seven year appointments and can serve for up to 14 years. (Section 713). _________________________________________________________________
About The Author
Gregory Siskind is a partner in Siskind Susser's Memphis, Tennessee, office. After graduating magna *** laude from Vanderbilt University, he received his Juris Doctorate from the University of Chicago. Mr. Siskind is a member of AILA, a board member of the Hebrew Immigrant Aid Society, and a member of the ABA, where he serves on the LPM Publishing Board as Marketing Vice Chairman. He is the author of several books, including the J Visa Guidebook and The Lawyer's Guide to Marketing on the Internet. Mr. Siskind practices all areas of immigration law, specializing in immigration matters of the health care and technology industries. He can be reached by email at gsiskind@visalaw.com. "
(American workers, join us in fighting the H-1b increasae! Plseae use the following URL to send a protest letter to Congress. We stopped the H-1b increase last year and with your help and we can stop it again this year.
You are using yet another "study" from a known anti-immigrant who doesn't have any knowledge about immigration nor about the economic effects of immigration. Dr. Matloff is a computer science professor, and, from what my contacts at UC Davis tell me, not an overly good one...
It is always telling that you anti-immigrants try to use his job title as professor as a way to gain credibility. Professor is a job title, it doesn't imply authority. And Dr. Matloff doesn't have any knowledge nor authority to talk about immigration.
Companies state that they cannot find the talent they need with American workers; they say the talent just isn't there. Okay, so let them hire foreign workers, but only at a premium that encourages them to hire American. Perhaps a regulated rate that is 150% of the going rate for American workers. I don't think industry would want any such H1-b visa holders. They would find Americans much more qualified overnight.
How long must we suffer these never ending arguments over illegal immigration and worker visas. We must first begin ENFORCEMENT of the present laws before we change something that hasn't and won't work the way the government applies them. Build a wall, a fence, patrol the borders as we should have been all along. Maybe a wise application of unmanned aircraft could bridge the gaps and make true enforcement possible.
I will vote for Congresspeople who make the US more competitive. That means I will vote for people who make it easier for engineers and scientists to come to the US, i.e., for people who support an increase of the H1. In the long run, that is what helps everybody, including American engineers and scientists.
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Any company wanting to hire an H-1B worker must
#1 - Employ at least 50% of their staff in that same position using U.S. citizens.
#2 - H-1B visa employees must receive a payroll wage within 10% of the pay range of the US employees in that position.
#3 - Employment costs for US citizens (payroll taxes, Social security, etc) that do not apply to H-1B visas must be paid into a guaranteed fund divided among the US employees, in the form of either offsetting healthcare premiums, 401K/pension plan contributions, etc.
#4 - Companies should have to prove that they offered "position X" at a pay rate within 10% of the current (or previous employee) pay ranges for that position, to all qualified applicants before accepting an H-1B.
Meeting these requirements would guarantee that a company would be fairly evaluating US employees to fill positions first (given higher training, retention, and turnover costs for H-1B workers), but would not penalize them for filling positions that need filling if H-1B are the only way to do it.
This simple plan would also remove the stigma attached to the program by domestic workers, John would know that Raheed was hired because he or she was qualified, needed, and able, not because it was a cost-cutting move, and so would be more likely to support and work alongside of him in a more productive fashion.
Besides blood-sucking unproductive cost-cutting by big business (ultimately reducing their competitiveness however as their permanent talent levels and cohesiveness fall apart), there are no real negatives to this plan until there are no domestically qualified applicants left for a position (at which point, the H-1B cap can be raised appropriately to maintain equilibrium with all US workers employed that desire to be). There should be ***0%**** unemployment at equivalent pay levels in any field that allows H-1B visas, before the visas are issued.
This also has the benefit of showing students that going into these fields can and will be productive in their futures, as it is right now, these fields are shrinking in our education market, because people see that they can't get a return on the investment they need to become qualified, as the jobs won't be there, or the pay rates will be so depressed as to be unable to even pay off the student loans needed to be educated.
Send money to candidates that support American Engineers and Scientists.
In the long run, that is what helps everybody, including American engineers and scientists.
I've seen (witnessed first-hand) the eagerness of Indian Nationals to return to their home country for the companies they work for here in the U.S.
H-1b is basically a huge, on-the-job training program for the outsourcing market and FUTURE outsourcing activities of companies.
Outsourcing and H-1b go hand-in-hand.
Further, all we are doing when we outsource, import, and BORROW (9-trillion last count), is devalue the U.S. Dollar.
One default by U.S. government is all it will take, and we'll all be living like 3rd worlder's, because we've outsourced everything.
Dude, why can't Republicans see their own folly?
<a class="jive-link-external" href="http://www.unionvoice.org/campaign/H1B" target="_newWindow">http://www.unionvoice.org/campaign/H1B</a>
Congress Considers a Massive 600,000 H-1b Visa Expansion, Gates Tells Congress Its Microsofts Top Priority
By Marcus Courtney
WashTech News
Congress is contemplating legislation that would allow up to 600,000 skilled professional guest workers to enter the U.S. in a single year. This would be the biggest one time expansion of the controversial H-1b visa program to date.
This increase comes after the high-tech industry is just beginning to recover from the economic recession of 2001, as a small demand for workers has been noticed.
Sen. Arlen Specter (R-PA) is drafting an immigration reform bill that contains the expansion of the H-1b visa program. Sen. Specter chairs the Senate Judiciary Committee, which has jurisdiction over immigration matters.
Microsoft's Bill Gates is spending his own personal political capital on this issue. He was in Washington D.C. last week lobbying for the changes. According to Washington Post columnist David Broder, Gates told me the "high-skills immigration issue is by far the number one thing" on the Washington agenda for Microsoft and for the electronics industry generally "This is gigantic for us." The article went on to say, So great is the demand for such skills in the burgeoning high-tech world, However, government studies have dismissed the notion the industry is facing a worker shortage.
Last week, WashTech News released information showing that wages at Microsoft have been stagnant for several years in the majority of pay scales. If a real skill shortage existed, as Mr. Gates claims, pay should be increasing not stagnating at his company.
In an analysis done by the AFL-CIO Department of Professional Employees, the bill would:
" Mandate a retroactive increase to 195,000 from the current 65,000 H-1B visa cap (exclusive of existing exemptions) for the years of 2004-2006, in effect allowing for a one-time visa grab by employers of nearly 400,000 visas!
" Increase the 65,000 visa cap to 115,000," a 60% hike!
" Require an automatic 20% annual hike in the new cap whenever the visas are exhausted, thus establishing a new annual cap for each successive year. This, in effect, rips the lid off of any meaningful annual visa limitation.
" Add still another open-ended exemption from the cap for any foreign national that has an advanced degree in science, technology, engineering or math from anywhere on the planet. At least the previous exemption authored by the committee restricted such visas to foreign graduates of U.S. institutions and limited it to 20,000 annually.
Taken together, within one year over 600,000 new foreign professionals could flood the U.S. market, the result of which would be to inflict serious economic harm on highly skilled, well-educated American workers, said the analysis.
Marcus Courtney is the President of WashTech/CWA Local 37083. He can be reached at courtney@washtech.org
<a class="jive-link-external" href="http://www.cis.org/articles/2005/back1305.html" target="_newWindow">http://www.cis.org/articles/2005/back1305.html</a>
The H-1B swindle
A new study shows that companies hire foreign workers for cheap labor, not skill
Reality Check, By Ephraim Schwartz
October 25, 2005
It appears there is hard evidence to prove that employers are using the H-1B visa program to hire cheap labor; that is, to pay lower wages than the national average for programming jobs.
According to "The Bottom of the Pay Scale: Wages for H-1B Computer Programmers F.Y. 2004," a report by Programmers Guild board member John Miano, non-U.S. citizens working in the United States on an H-1B visa are paid "significantly less than their American counterparts." How much less? "On average, applications for H-1B workers in computer occupations were for wages $13,000 less than Americans in the same occupation and state."
Miano based his report on OES (Occupational Employment Statistics) data from the Bureau of Labor Statistics which estimates wages for the entire country by state and metropolitan area. The reports H-1B wage data came from the U.S. Department of Labors H-1B disclosure Web site.
Miano went out of his way to be balanced, and whenever possible he gave the benefit of the doubt to the employer. For example, he used OES data from 2003 because this is the wage information that would have been available to the employers when filing an LCA (labor condition application).
Miano had some difficulty matching OES job codes with LCA job titles, which employers typically create. Where both the OES and the LCA listed a job as "programmer/analyst," Miano took the conservative approach of assuming that the LCA was describing a programmer, a job title that typically earns a lower wage than a systems analyst.
Nonetheless, Mianos report shows that wages paid to H-1B workers in computer programming occupations had a mean salary of $52,312, while the OES mean was $67,700; a difference of $15,388. The report also lists the OES median salary as $65,003, or $12,691 higher than the H-1B median.
When you look at computer job titles by state, California has one of the biggest differentials between OES salaries and H-1B salaries. The average salary for a programmer in California is $73,960, according to the OES. The average salary paid to an H-1B visa worker for the same job is $53,387; a difference of $20,573.
Here are some other interesting national wage comparisons: The mean salary of an H-1B computer scientist is $78,169, versus $90,146 according to the OES. For an H-1B network analyst, the mean salary is $55,358, versus the OES mean salary of $64,799. And for the title "system administrator," there was a $17,478 difference in salary between the H-1B mean and the OES mean.
H-1B visa workers were also concentrated at the bottom end of the wage scale, with the majority of H-1B visa workers in the 10-24 percentile range. "That means the largest concentration of H-1B workers make less than [the] highest 75 percent of the U.S. wage earners," the report notes.
While it would be difficult to prove that any one particular employer is hiring foreign workers to pay less, the statistics show us that, for whatever reason, this is exactly what is happening on a nationwide basis. Miano says lobbyists will admit that a small number of companies are abusing the H-1B program, but what he has found in this research is that almost everyone is abusing it.
"Abuse is by far more common than legitimate use," he says.
***
Help us stop the H-1b increase. Here is a link to an already written oposition letter that will be sent to Congress opposing the H-1b increase. Please use the link email Congress. The career you save may be your own.
<a class="jive-link-external" href="http://www.unionvoice.org/campaign/H1B" target="_newWindow">http://www.unionvoice.org/campaign/H1B</a>
Gee, what a coincidence that they have a "study" supporting just that...
I suggest quoting a real study instead of this pamphlet...
Nation Polarized Between Rich and Poor
By PAUL CRAIG ROBERTS
3/17/2006
On February 20 Forbes.com told its readers with a straight face that "the American job-generation machine rolls on. The economy will create 19 million new payroll jobs in the decade to 2014." Forbes took its information from the 10-year jobs projections from the Bureau of Labor Statistics, US Department of Labor, released last December.
If the job growth of the past half-decade is a guide, the forecast of 19 million new jobs is optimistic, to say the least. According to the Bureau of Labor Statistics payroll jobs data, from January 2001 - January 2006 the US economy created 1,054,000 net new private sector jobs and 1,039,000 net new government jobs for a total five-year figure of 2,093,000. How does the US Department of Labor get from 2 million jobs in five years to 19 million in ten years?
I cannot answer that question.
However, the jobs record for the past five years tells a clear story. The BLS payroll jobs data contradict the hype from business organizations, such as the US Chamber of Commerce, and from "studies" financed by outsourcing corporations that offshore jobs outsourcing is good for America. Large corporations, which have individually dismissed thousands of their US employees and replaced them with foreigners, claim that jobs outsourcing allows them to save money that can be used to hire more Americans. The corporations and the business organizations are very successful in placing this disinformation in the media. The lie is repeated everywhere and has become a mantra among no-think economists and politicians. However, no sign of these jobs can be found in the payroll jobs data. But there is abundant evidence of the lost American jobs.
Information technology workers and computer software engineers have been especially heavily hit by offshore jobs outsourcing. During the past five years (Jan 01 - Jan 06), the information sector of the US economy lost 645,000 jobs or 17.4% of its work force. Computer systems design and related lost 116,000 jobs or 8.7% of its work force. Clearly, jobs outsourcing is not creating jobs in computer engineering and information technology. Indeed, jobs outsourcing is not even creating jobs in related fields.
For the past five years US job growth was limited to these four areas: education and health services, state and local government, leisure and hospitality, financial services. There was no US job growth outside these four areas of domestic nontradable services.
Oracle, for example, which has been handing out thousands of pink slips, has recently announced two thousand more jobs being moved to India. How is Oracle's move of US jobs to India creating jobs in the US for waitresses and bartenders, hospital orderlies, state and local government and credit agencies, the only areas of job growth?
Engineering jobs in general are in decline, because the manufacturing sectors that employ engineers are in decline. During the last five years, the US work force lost 1.2 million jobs in the manufacture of machinery, computers, electronics, semiconductors, communication equipment, electrical equipment, motor vehicles and transportation equipment. The BLS payroll job numbers show a total of 70,000 jobs created in all fields of architecture and engineering, including clerical personal, over the past five years. That comes to a mere 14,000 jobs per year (including clerical workers). What is the annual graduating class in engineering and architecture? How is there a shortage of engineers when more graduate than can be employed?
Of course, many new graduates take jobs opened by retirements. We would have to know the retirement rates to get a solid handle on the fate of new graduates. But it cannot be very pleasant, with declining employment in the manufacturing sectors that employ engineers and a minimum of 65,000 H-1B visas annually for foreigners plus an indeterminate number of L-1 visas.
It is not only the Bush regime that bases its policies on lies. Not content with outsourcing Americans' jobs, corporations want to fill the remaining jobs in America with foreigners on work visas. Business organizations lie about a shortage of engineers, scientists and even nurses. Business organizations have successfully used pubic relations firms and bought-and-paid-for "economic studies" to convince policymakers that American business cannot function without H-1B visas that permit the importation of indentured employees from abroad who are paid less than the going US salaries. The so-called shortage is, in fact, a replacement of American employees with foreign employees, with the soon-to-be-discharged American employee first required to train his replacement.
It is amazing to see free-market economists rush to the defense of H-1B visas. The visas are nothing but a subsidy to US companies at the expense of US citizens.
Keep in mind this subsidy to US corporations for employing foreign workers in place of Americans as we examine the Labor Department's projections of the ten fastest growing US occupations over the 2004-2014 decade.
All of the occupations with the largest projected employment growth (in terms of the number of jobs) over the next decade are in nontradable domestic services. The top ten sources of the most jobs in "superpower" America are: retail salespersons, registered nurses, postsecondary teachers, customer service representatives, janitors and cleaners, waiters and waitresses, food preparation (includes fast food), home health aides, nursing aides, orderlies and attendants, general and operations managers. Note than none of this projected employment growth will contribute one nickel toward producing goods and services that could be exported to help close the massive US trade deficit. Note, also, that few of these jobs classifications require a college education.
Among the fastest growing occupations (in terms of rate of growth), seven of the ten are in health care and social assistance. The three remaining fields are: network systems and data analysis with 126,000 jobs projected or 12,600 per year; computer software engineering applications with 222,000 jobs projected or 22,200 per year, and computer software engineering systems software with 146,000 jobs projected or 14,600 per year.
Assuming these projections are realized, how many of the computer engineering and network systems jobs will go to Americans? Not many, considering the 65,000 H-1B visas each year (650,000 over the decade) and the loss during the past five years of 761,000 jobs in the information sector and computer systems design and related.
Judging from its ten-year jobs projections, the US Department of Labor does not expect to see any significant high-tech job growth in the US. The knowledge jobs are being outsourced even more rapidly than the manufacturing jobs were. The so-called "new economy" was just another hoax perpetrated on the American people.
If offshore jobs outsourcing is good for US employment, why won't the US Department of Commerce release the 200-page, $335,000 study of the impact of the offshoring of US high-tech jobs? Republican political appointees reduced the 200-page report to 12 pages of public relations hype and refuse to allow the Technology Administration experts who wrote the report to testify before Congress.
Democrats on the House Science Committee are unable to pry the study out of the hands of Commerce Secretary Carlos Gutierrez. Obviously, the facts don't fit the Bush regime's globalization hype.
The only thing America has left is finance, and now that is moving abroad. On February 22 CNNMoney.com reported that America's large financial institutions are moving "large portions of their investment banking operations abroad." No longer limited to back-office work, offshoring is now killing American jobs in research and analytic operations, foreign exchange trades and highly complicated credit derivatives contracts. Deal-making responsibility itself may eventually move abroad.
Deloitte Touche says that the financial services industry will move 20 percent of its total costs base offshore by the end of 2010. As the costs are lower in India, that will represent more than 20 percent of the business. A job on Wall St is a declining option for bright young persons with high stress tolerance.
The BLS payroll data that we have been examining tracks employment by industry classification. This is not the same thing as occupational classification. For example, companies in almost every industry and area of business employ people in computer-related occupations. A recent study from the Association for Computing Machinery claims: "Despite all the publicity in the United States about jobs being lost to India and China, the size of the IT employment market in the United States today is higher than it was at the height of the dot.com boom. Information technology appears as though it will be a growth area at least for the coming decade."
We can check this claim by turning to the BLS Occupational Employment Statistics. We will look at "computer and mathematical employment" and "architecture and engineering employment."
Computer and mathematical employment includes such fields as "software engineers applications," "software engineers systems software," "computer programers," "network systems and data communications," and "mathematicians." Has this occupation been a source of job growth?
In November of 2000 this occupation employed 2,932,810 people. In November of 2004 (the latest data available), this occupation employed 2,932,790, or 20 people fewer. Employment in this field has been stagnant for the past four years.
During these four years, there have been employment shifts within the various fields of this occupation. For example, employment of computer programmers declined by 134,630, while employment of software engineers applications rose by 65,080, and employment of software engineers systems software rose by 59,600. (These shifts might merely reflect change in job or occupation title from programmer to software engineer.)
These figures do not tell us whether any gain in software engineering jobs went to Americans. According to Professor Norm Matloff, in 2002 there were 463,000 computer-related H-1B visa holders in the US. Similarly, the 134,630 lost computer programming jobs (if not merely a job title change) may have been outsourced offshore to foreign affiliates.
Architecture and engineering employment includes all the architecture and engineering fields except software engineering. The total employment of architects and engineers in the US declined by 120,700 between November 1999 and November 2004. Employment declined by 189,940 between November 2000 and November 2004, and by 103,390 between November 2001 and November 2004.
There are variations among fields. Between November 2000 and November 2004, for example, US employment of electrical engineers fell by 15,280. Employment of computer hardware engineers rose by 15,990 (possibly these are job title reclassifications). Overall, however, over 100,000 engineering jobs were lost. We do not know how many of the lost jobs were outsourced offshore to foreign affiliates or how many of any increase in computer hardware jobs went to foreign holders of H-1B or L-1 visas.
Clearly, engineering and computer-related employment in the US has not been growing, whether measured by industry or by occupation. Moreover, with a half million or more foreigners in the US on work visas, the overall employment numbers do not represent employment of Americans. Perhaps what corporations and "studies" mean when they claim offshore outsourcing increases US employment is that the contacts companies make abroad allow them to bring in more foreigners on work visas to displace their American employees.
American employees have been abandoned by American corporations and by their representatives in Congress. America remains a land of opportunity--but for foreigners--not for the native born. A country whose work force is concentrated in domestic nontradable services has no need for scientists and engineers and no need for universities. Even the projected jobs in nursing and school teachers can be filled by foreigners on H-1B visas.
In the US the myth has been firmly established that the jobs that the US is outsourcing offshore are being replaced with better jobs. There is no sign of these jobs in the payroll jobs data or in the occupational statistics. Myself and others have pointed out that when a country loses entry level jobs, it has no one to promote to senior level jobs. We have also pointed out that when manufacturing leaves, so does engineering, design, research and development, and innovation itself.
On February 16 the New York Times reported on a new study presented to the National Academies that concludes that outsourcing is climbing the skills ladder. A survey of 200 multinational corporations representing 15 industries in the US and Europe found that 38 percent planned to change substantially the worldwide distribution of their research and development work, sending it to India and China. According to the New York Times, "More companies in the survey said they planned to decrease research and development employment in the United States and Europe than planned to increase employment."
The study and discussion it provoked came to untenable remedies. Many believe that a primary reason for the shift of R&D to India and China is the erosion of scientific prowess in the US due to lack of math and science proficiency of American students and their reluctance to pursue careers in science and engineering. This belief begs the question why students would chase after careers that are being outsourced abroad.
The main author of the study, Georgia Tech professor Marie Thursby, believes that American science and engineering depend on having "an environment that fosters the development of a high-quality work force and productive collaboration between corporations and universities." The Dean of Engineering at the University of California, Berkeley, thinks the answer is to recruit the top people in China and India and bring them to Berkeley. No one seems to understand that research, development, design, and innovation take place in countries where things are made. The loss of manufacturing means ultimately the loss of engineering and science. The newest plants embody the latest technology. If these plants are abroad, that is where the cutting edge resides.
The United States is the first country in history to destroy the prospects and living standards of its labor force. It is amazing to watch freedom-loving libertarians and free-market economists serve as full time apologists for the dismantling of the ladders of upward mobility that made the America of old an opportunity society.
America has begun a polarization into rich and poor. The resulting political instability and social strife will be terrible.
Paul Craig Roberts was Assistant Secretary of the Treasury in the Reagan administration. He was Associate Editor of the Wall Street Journal editorial page and Contributing Editor of National Review. He is coauthor of The Tyranny of Good Intentions.He can be reached at: paulcraigroberts@yahoo.com
***
Help us stop the H-1b increase. Use the following link to email an all ready written protest letter to Congress opposing the H-1b increase. The career you save may be your own.
<a class="jive-link-external" href="http://www.unionvoice.org/campaign/H1B" target="_newWindow">http://www.unionvoice.org/campaign/H1B</a>
By Michele Chandler
Mercury News
A citizen of India working in California filed a class action lawsuit Tuesday against his India-based employer, alleging that the company collected tax refunds owed to its non-U.S. citizen workers.
Gopi Vedachalam, who transferred to the Bay Area in 2000 from Bangalore, contends he was instructed to sign over his federal and state tax refund checks to international consultancy firm Tata Consultancy Services. U.S. citizens of the company, however, were not asked to sign over their returns, his lawsuit alleges.
Vedachalam was assigned by Tata Consultancy to work as a project manager at Target in Hayward, where he made $50,000 a year. From 2000 to 2005, the refunds he signed over to Tata Consultancy totaled $25,000, according to the lawsuit filed in San Francisco's federal district court. (The current median house price in Haywood California is $635,000. - jgm)
``As we understand it, that is his money,'' said his lawyer, San Francisco-based Steven Tindall.
An official with Tata Consultancy, which has 9,500 workers in North America, said he had not seen the lawsuit.
``To the best of my knowledge, we have not been officially served with the legal papers,'' Tata Consultancy spokesman Mike McCabe said. ``When we are, we will respond appropriately. We take this very seriously.''
If certified as a class action case, the suit would be one of the first filed against a company engaged in bringing non-U.S. citizens to the United States to work in American corporations, Tindall said. Vedachalam, 37, received an L-1 visa, which permits foreign companies to transfer workers to their U.S. subsidiaries, Tindall said. Vedachalam still works for Tata Consultancy; since 2003, he's been a project manager for 21st Century Insurance in southern California.
A leading global technology services organization, Tata Consultancy dispatches professionals, mainly engineers, to work on a contract basis with U.S. firms including IBM and Microsoft, Tindall said. On Monday, Tata Consultancy announced it had entered into a five-year research and development collaboration with Stanford University to work on joint projects focused on data privacy.
While the exact number of non-U.S. citizens working in California affected by the company's practices is not known, the lawsuit said Tata Consultancy employed hundreds of non-U.S. citizens throughout the state at the end of 2005.
Thousands of current and former Tata Consultancy employees are believed to have been affected by the practices, Tindall said. The lawsuit seeks to represent all non-U.S. citizen employees of Tata Consultancy who worked in the United States between Feb. 14, 2000 and the present.
In a statement, Vedachalam said he tried to recover his tax refund money through Tata Consultancy's internal procedures, ``but I was met with either silence or refusal.''
``I work hard for Tata and the companies I have been assigned to,'' Vedachalam's statement said. ``I should receive the full wages Tata agreed to pay me, as should all other Tata employees in America.''
Most of the company's workers stationed in the United States are non-U.S. citizens. It's a common practice in the technology industry, including among American-owned firms, to bring technology professionals from India and other countries to the United States, Tata Consultancy's McCabe said.
Tata Consultancy also kept non-U.S. employees from being paid for vacation time they did not use and could not roll over to the following year, according to the lawsuit. While all Tata Consultancy workers in the United States received 15 vacation days and could carry over five unused days to the next year, U.S citizens could get cash for any unused days, but non-citizens had to forfeit that pay, the suit said.
Only non-U.S. citizens who worked for Tata Consultancy in California from February 2002 through the present are eligible for the suit's broader claim pertaining to lost vacation wages. State law entitles California workers to receive pay for vacation time earned but not taken.
--------------------------------------------------------------------------------
Contact Michele Chandler at (408) 920-5731 or mchandler@mercurynews.com
By Stephen Dinan
THE WASHINGTON TIMES
Published February 10, 2006
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One of the country's temporary work visa programs, used particularly by foreign technology workers, is being abused by companies looking to get around protections for American workers, according to a new government report.
The L visa, which is intended for foreign companies who want to transfer managerial employees or workers with "specialized knowledge" temporarily to the United States, has been abused to get around limits on other types of visas, according to the Department of Homeland Security's inspector general.
Congress has capped the number of workers who can come under the H-1B visa category each year at 65,000, but has not placed limits on the L-1 visa, which applies to workers with specialized knowledge. Also, the L visa does not require that workers are paid the "prevailing wage" so that American workers are not displaced.
"Software companies appear to be using the L visa to get around H quotas," one consular post in Southeast Asia told investigators. State Department officials often are called upon to double-check information abroad.
L visas have proven attractive for technology companies -- and particularly firms that outsource labor to India. Nearly 50 percent of the petitions received under the "specialized knowledge" category in fiscal 2005 were for people born in India.
The inspector general found that it is difficult for adjudicators at U.S. Citizenship and Immigration Services (USCIS) to determine what constitutes a manager, particularly because companies vary in size and organization. Adjudicators also have to rely on a company's claims about its own operations, a worker's status at the time of the petition and how a worker will be used in the United States.
In some cases, adjudicators said, applications were prepared by lawyers and "were either too vague, or conversely too technical, for the adjudicator to make appropriate decisions."
Sen. Charles E. Grassley, the Iowa Republican who inserted a provision into a bill to require the study, said it showed "extensive and well-known fraud and abuse in the L visa program."
"When our own consular officers agree that there are problems with the L visa program, something has to be done," he said. "We can't have companies bypass the H-1B visas just to get around protections intended to help American workers."
The inspector general concluded that although the claims about displacing U.S. workers "may have merit," it is not a significant national trend.
Angelica Alfonso, a spokeswoman for USCIS, said the report is accurate in saying L-1 visas are difficult to adjudicate and have "the potential of being exploited to fraud and abuse."
"USCIS has provided additional guidance to minimize such vulnerabilities. In addition, in 2006, USCIS plans to conduct a benefit fraud assessment to determine the nature and extent of fraud in the L-1A non-immigrant classification," she said.
The L-1A category applies to managers and executives.
The inspector general called for USCIS to come up with new ways to make sure overseas checks are made and has given the agency 90 days to respond.
(The following quote floors me; "The inspector general concluded that although the claims about displacing U.S. workers "may have merit," it is not a significant national trend."
An IEEE-USA analysis of BLS data showed that "from 2001 to 2004, while federal immigration officials processed 856,000 H-1B visa applications, national unemployment among high tech managers and professionals increased from 725,000 in 2001 to 1.3 million in 2004. During this same time another IEEE-USA analysis showed a 24% decline in the number of employed computer programmers, 23% in the number of employed electrical engineers, and 18% decline in employed computer scientists.
A rise in unemployment of over 400,000 in one sector is not a "significant national trend"?! How about last year (2005) when over 140,000 high tech workers, according to Challenger, Gray, and Christmas, lost their jobs during a "good" economy? That was up over 118,000 from the year before. I guess that is not a "significant national trend either.
How many American engineers have to lose their jobs before it's a "significant national trend"?
None of this surprises me however since the Department of Homeland Security can't count. In 2004 instead of letting in the 65,000 H-1b workers required by law they let in 76,000 H-1b workers. - stopoffshoring_
(Help stop the H-1b increase. Please use the following link to email Congress an oppostion email. The career you save may be your own. <a class="jive-link-external" href="http://www.unionvoice.org/campaign/H1B" target="_newWindow">http://www.unionvoice.org/campaign/H1B</a>)
H-1B and L-1 Work Visas
Submitted by jgm
EE Times
March 3, 2006
To the Editor,
Re: Engineers' pay will fall and This engineer's pay has already fallen 66 percent.
My salary too has fallen. It fell by 55 percent right after I trained my foreign replacement workers on H-1B and L-1 guest worker visas.
In my department, more than 20 Americans were ordered by corporate management to train our own replacements. Siemens ICN held out a carrot: Stay on and train your replacements, then we'll have this severance for you when you leave.
I spent five months training three Tata India employees. Each learned a different facet of my job. A 55 percent pay cut is not bad considering I was the lucky one; I found another job. Many of my former co-workers weren't so lucky.
You can't beat the corporate money that funds congressional campaigns that create these American Worker Replacement Programs . I strongly suggest American students avoid the technology and engineering fields.
Michael T. Emmons
Florida
admin on Sunday, March 19 @ 21:10:28 EST
: " Norm Matloff writes in his 15 March newsletter:
I predicted that the guest worker bill program would really NOT be about illegal immigration, but instead would really be about importing cheap labor from around the world to fill all types of jobs, especially the white collar ones. Well, that is exactly what is in the Specter bill."
Last week I reported on a far-reaching immigration reform bill by Sen.
Arlen Specter, currently being marked up in the Senate. See
<a class="jive-link-external" href="http://heather.cs.ucdavis.edu/Archive/SpecterBill.txt" target="_newWindow">http://heather.cs.ucdavis.edu/Archive/SpecterBill.txt</a>
I noted that the bill did not have a number yet, and thus was on Congress' Web page, <a class="jive-link-external" href="http://thomas.loc.gov" target="_newWindow">http://thomas.loc.gov</a> There has been some information on the bill in the press and on the Web sites of some immigration reform organizations, but both are very short on details.
And as they say, "the devil is in the details."
Yet the Beltway insiders seem to have no problem getting copies of the bill. The immigration attorney and industry lobbies clearly have this access, as does at least one of the immigration reform organizations.
But the rest of us are on the outside looking in.
Fortunately, immigration attorney Greg Siskind obtained a copy and has published his analysis of it in the enclosed article. Some of its provisions are startling, aspects not mentioned in the San Francisco Chronicle article or on the immigration reform organization Web pages.
This is a highly complex bill. What will get it the most press, of course, is its proposal of a very broad guest worker program, but it has other sections which would have huge implications for programmers and engineers who are U.S. citizens and permanent residents. To describe the effect the bill would have on American techies, let's put it this
way: The phrase, "final nail on the coffin" immediately comes to mind.
By the way, for those of you readers who are techies, if you ever thought that all these guest worker proposals are aimed at undocumented people working as farm workers and hotel maids, think again. More than a year ago, I predicted what would happen. See
<a class="jive-link-external" href="http://heather.cs.ucdavis.edu/Archive/MajorChangePoint.txt" target="_newWindow">http://heather.cs.ucdavis.edu/Archive/MajorChangePoint.txt</a>
I predicted that the guest worker bill program would really NOT be about illegal immigration, but instead would really be about importing cheap labor from around the world to fill all types of jobs, especially the white collar ones. Well, that is exactly what is in the Specter bill.
First of all, note that Specter's bill sets up TWO guest worker programs, one for illegals and the other general. See, I told ya so!
It really is much broader than for the illegals.
Second, Specter's general guest worker program, which he would name H-2C, would indeed cover many techie jobs. Here's what I said last
year:
* And even the programmer and engineer jobs would be vulnerable. Sure,
* the program structure could include a provision saying something like,
* "Not for jobs normally requiring a Bachelor's degree," but so what? The
* employers would suddenly decide that many programming and engineering
* jobs don't need a Bachelor's. If it weren't so sad, it would be comical
* to watch, say, Sun Microsystems, use this new program to hire
* sub-Bachelor's workers for the same jobs that Sun is now insisting
* require a Bachelor's degree (the requirement for H-1B).
Sure enough, it turns out that the only restriction Specter's H-2C has on job type is that the job not be covered by H-1B (and a couple of other ingredients in the nonimmigrant visa alphabet soup). Well, as I mentioned last year, the only requirement H-1B has is that the job requires a Bachelor's degree. So, another prediction come true.
And I didn't choose Sun Micro out of the blue. On the contrary, Sun has proudly discussed its community college program for hiring system administrators. In other words, people with only Associate of Arts degrees. And get this: Sun hires lots of H-1Bs as system administrators, implying that Sun considers it to be a job requiring a Bachelor's degree. In other words, they're having it both ways, and with H-2C they'd be in clover.
Now, let's discuss the bill's provisions regarding H-1B and employer-sponsored green cards. I'll introduce each one by quoting from Siskind's article, starting with this:
* The Spector bill makes important changes regarding student
* visas. First, F-1 optional practical training time is now extended
* from one year to 24 months. (Section 408). A new F-4 student visa
* is created for students pursuing advanced degrees in math,
* engineering, technology or the physical sciences. F-4 students would
* need to either return to their country of origin or remain in the US
* and pursue a job in their field and then pursue permanent residency.
* F-4s will be dual intent and the status can be extended while
* the applicant pursues permanent residency through a labor
* certification or other means. The alien must be working in his
* field as well to qualify to adjust status.
That OPT provision seems inoccuous but is very significant. Here's why:
For the last 5-10 years, it has been typical in the industry to have a policy in which it is very difficult for a new graduate to get a software development job without having had internship/co-op experience.
And if you don't get into a development position at the beginning, it is quite difficult to get one later. In other words, internship/co-op experience is crucial to being able to have a development career.
Moreover, often in internship/co-op positions a bond develops between the employer and student, making it much easier for the student to get a permanent job with the employer after graduation.
Again: Internship/co-op positions play a key role in getting good jobs in this field.
But internship/co-op experience is difficult to come by these days. Yet many of these jobs are taken by foreign students, who have the right to work via OPT.
The main thing which has served as a damper on that effect is that OPT has been limited to one year. Many foreign students have been reluctant to use any of that one-year time, because they want it to apply to their permanent job in the U.S. after graduation. If H-1B visas are in short supply when they graduate, employers can still hire them under OPT.
In other words, this doubling of OPT time is (a) specifically aimed at enhancing the ability of foreign students to work in the U.S. and thus reduce job opportunities for American students, and (b) would have the additional effect of literally making it impossible for many American students to ever enter the software development field.
And the following provision means that they don't have to use any of their OPT time for their internship/co-op work:
* Section 407 also would allow F-1 and F-4 students to accept
* off-campus jobs outside of the students field if the student is
* enrolled and in good standing at their educational institution, an
* employer provides...
So after graduation, the employer would not need to use up an H-1B visa on the foreign student for a full two years.
The "dual intent" provision would reverse a long-held tenet of the student visa concept. When a student in another country applies for a visa to attend a U.S. school, she is asked to confirm that she intends to return home after graduation. Of course, many have no such intention, and sadly, the U.S. system is forcing them to lie in their
very first contact with the U.S. Dual intent, which means they also
wish to become permanent residents of the U.S., at least would make them honest, but again the overall aim here is to enhance the ability of foreign students to get U.S. jobs.
Now here is a real shocker:
* Section 409 waives the labor certification recruitment requirement for
* those with advanced degrees in the sciences, technology, engineering
* or math from American universities.
As I've said before, the current labor certification process is riddled with loopholes. As I've pointed out countless times, immigration attorney Joel Stewart has said, "Employers who favor aliens have an arsenal of legal means to reject all U.S. workers who apply" ("Legal Rejection of U.S. Workers," Immigration Daily, April 24, 2000; available at www.ilw.com/articles/2000,0424-Stewart.shtm). Yet, to do away with the labor certification process entirely, as this provision of the Specter bill would do, is simply outrageous.
And it would create its own demand, of students abroad who would say, "Hey, it's that easy?"
Keep in mind, (a) we are overproducing people with MS/PhDs as it is, and
(b) the vast majority of the foreign graduate students are NOT "the best and the brightest." See
<a class="jive-link-external" href="http://heather.cs.ucdavis.edu/Archive/ProposedMSPhDExemption.txt" target="_newWindow">http://heather.cs.ucdavis.edu/Archive/ProposedMSPhDExemption.txt</a>
This next one is equally onerous, but not shocking, since I predicted it the other day:
* Section 409 exempts aliens who have earned advanced degrees in
* science, technology, engineering or math and have been working in
* their fields under a non-immigrant visa in the three years prior to
* filing for adjustment, recipients of national interest waivers,
* immediate relatives of aliens granted employment-based immigrant visas
* are exempt from green card quotas.
The key phrase here is "working...in the three years." Here is what I wrote the other day, before I knew the details. The San Francisco Chronicle article had simply said that "Other provisions include a new
F-4 visa category for students pursuing advanced degrees in science, technology, engineering or mathematics. These students would be granted permanent residence if they find a job in their field and pay a $1,000 fee toward scholarships and training of U.S. workers." I commented:
* How exactly would this provision of Specter's bill work? If the foreign
* student really can petition for a green card on his own, without
* employer sponsorship, that would remove a lot of the exploitability of
* the H-1Bs. That would be great if it were the case, but the article
* here says the student must get a job in the field. This implies some
* role for the employer in the green card process, and you can bet that
* the industry lobbyists will vigorously push Congress to make that role
* just as strong as it is now. If the bill passes, they'll then push BCIS
* (formerly INS) to write the regulations this way too. The result will
* be that the the H-1Bs with U.S. graduate degrees will be exploited just
* as much as before.
So, as you can see from Siskind's summary, there indeed is an employer tie. The foreign worker will have to have been "working in the field"
for three years. He must put in that time. What happens if the firm he is working for goes out of business? How long does he have to find another job? You can bet that he'll look for the most stable job, and stick with it even if he's being paid low wages. Remember, all the foreign worker has to do is find SOME job in his field SOMEWHERE. So he becomes the Web site operator for the local sidewalk peanut vendor, literally and figuratively working for peanuts, sticks with it for three years, and gets his green card. I am not exaggerating much when I talk about peanut vendors here.
* The H-1B cap is lifted for three years to 115,000. (Section 409).
* After that, the cap will remain at 115,000 but may rise up to 20% per
* year if the whole cap is used up in the prior year. If the cap is not
* reached, then the cap the next year will remain the same as the
* current year.
An obvious disaster for American programmers and engineers. I keep hearing from readers that every time the H-1B cap is exhausted they
start getting calls from recruiters.
* Title V Backlog Reduction
* Allows recapture of unused visa numbers and increases employment-based
* green cards from 140,000 to 290,000. Visas for spouses and children
* shall not be counted against the numerical limits.
...
* The per country limits are raised from 7% to 10%. (Section 502).
As I've said before, these would actually be good things, as they would reduce the window of exploitability for the H-1Bs, and thus make them less attractive to employers in the first place.
* Subtitle B Grant Programs to Assist Nonimmigrant Workers
*
* Provides funding for grants and to underwrite various education and
* training campaigns.
Can you believe this????
Norm
<a class="jive-link-external" href="http://www.ilw.com/articles/2006,0315-siskind.shtm" target="_newWindow">http://www.ilw.com/articles/2006,0315-siskind.shtm</a>
Immigration Daily: the news source for legal professionals
Comprehensive Immigration Reform Act Of 2006
by Gregory Siskind
The Specter bill is a compromise bill that is designed to bridge the gap between the enforcement-only approach of the Houses Sensenbrenner bill and the broad legalization provisions found in the McCain-Kennedy immigration bill introduced last year. Most of the enforcement provisions from the Sensenbrenner bill remain, but the Senate bill provides for new guest worker programs designed to ensure employers can access needed workers and that the large undocumented population in the US can be put into legal status. The bill does not grant permanent residency to the undocumented, but it does make it possible for workers to get to the back of the line and pursue a green card legally.
The Specter bill is still being revised, but changes now being introduced are relatively modest compared. Important amendments may still be offered and the bill still may not pass in the Senate, but we decided to proceed with offering a detailed review of the 305 page piece of legislation.
If the Specter bill passes, the House will need to reach a compromise regarding how they will proceed. In December, the House passed the Sensenbrenner reform package. That bill mainly focuses on immigration enforcement, while the Specter bill covers enforcement as well as legal immigration (including the creation of a guest worker program that would be available to out of status immigrants). Whether the House will go along with accepting those changes is far from certain at this point.
The Specter bill has already drawn fire from pro and anti-immigration
groups. Certain harsh provisions from the Sensenbrenner bill
(including making it a felony to fall out of immigration status) made it into the Specter bill. And the Specter bill includes two new guest worker visa programs a general program and another for workers in the US without legal status.
While many, many more people will be able to legally work in the US and while green card quotas will rise significantly, it is still very likely that there will be long waits for green cards after the legislation passes. One can easily envision a system where it would take a decade or more for people to eventually achieve permanent residency status. Nevertheless, a long path to permanent residency will likely be seen by immigration advocates as preferable to no path at all. And the ability of illegal immigrants to be able to work, travel home freely and have family members with them in the US will probably convince many that this is a better alternative to the status quo.
We will be monitoring this legislation closely in the weeks and months to come. If I were a betting man, I would still put the odds at no better than 50-50 that the bill will pass. But the picture will become much more clear especially if Senator Frist is able to achieve his goal of getting the Specter bill to the Senate floor for a vote within the next month.
Below is a section-by-section summary of key provisions.
Title I Border Enforcement
Subtitle A Assets for Controlling United States Borders
This section of the bill authorizes a number of new border protection officers and inspectors for a multiyear period. Purchases of a number
of technological assets like new unmanned aerial planes are
authorized. (Section 102). New ports of entry are also authorized.
(Section 105).
Subtitle B Border Security Plans, Strategies and Reports
This section requires the Department of Homeland Security to prepare various reports on border security.
Subtitle C Other Border Security Initiatives
This section requires DHS to integrate biometric databases by October 1, 2007. (Section 121). It also mandates DHS submit a timeline for the extension of the US-VISIT exit-entry system to all ports of entry.
(Section 124)
All immigration-status documents, other than interim documents, issued by DHS must be machine-readable, tamper resistant and incorporate biometrics by October 26, 2007. (Section 126).
Section 127 of this bill would expand Section 222(g) of the
Immigration and Nationality Act concerning the cancellation of visas after an alien overstays an I-94. The new provision would void ALL visas in possession of the immigrant and not just the particular visa that was tied to the overstay. In other words, an overstay on a work
I-94 would trigger the cancellation of a visitor visa that may also be in the passport. The provision would, however, now allow a person to reapply for the visa in the country of last residence and not just in the country of nationality (as is currently required).
Permanent residents would now be required to provide biometrics upon entry and exit from the US just like non-immigrants. Failure to comply will be a new ground for inadmissibility. (Section 128)
Finally, this section requires DHS to prepare a report on imposing a barrier along both the southern border. (Section 129)
Title II. Interior Enforcement
Subtitle A General Enforcement
This subtitle bars aliens inadmissible on terrorism-related grounds
from receiving political asylum and also broadens the bar on
availability of cancellation of removal, withholding of removal and voluntary departure as well as eligibility for admission for those found to be security threats. This section shall apply retroactively to those currently in removal and exclusion proceedings. (Section 201).
The Supreme Court decision in Zadvydas v. Davis is addressed. That decision strictly limits the ability of DHS to detain an alien ordered removed when the government has not managed to remove the alien (usually because the US does not have good relations with the home country). DHS would now have discretion with few limits to detain someone beyond the removal period. DHS would have to certify every six months that the alien is likely to be removed in the reasonably foreseeable future, the alien poses a threat to the public (either for health or safety reasons). The Commissioner of Immigration and Customs Enforcement must personally sign off on the certification. This section also makes it more difficult to be released after an order of removal has been issued and while criminal proceedings are under way.
(Section 202).
This section makes various changes to laws surrounding aggravated felons. First, it broadens the definition of aggravated felony to include convictions even when the sentence that is the basis of being an aggravated felony is tied to recidivist or other enhancements.
(Section 203).
The definition of aggravated felony would be expanded in alien harboring and smuggling cases as well. Persons who knowingly hire at least ten individuals smuggled in to the US in a twelve month period would be guilty of an aggravated felony. Persons found guilty of buying or selling vehicles, vessels or aircraft used in alien smuggling would be guilty of an aggravated felony. (Section 203).
Marriage fraud and EB-5 fraud for which the term of imprisonment is at least a year would now be aggravated felonies. (Section 206).
Asylees convicted of aggravated felonies would no longer be eligible for waivers to adjust status to permanent residency. (Section 206).
Good moral character would not apply in cases where a person is convicted of a crime that is not defined as an aggravated felony at the time it occurs but is later classified as an aggravated felony unless the crime is more than ten years old and the applicant is granted a waiver by DHS.
Any alien who a consular officer or a DHS officer knows or has reason to believe is a member of a criminal street gang or has participated in a gangs activities is inadmissible. (Section 205)
Responsibility for the Temporary Protected Status program is
transferred from the Department of Justice to DHS. DHS will have the authority to terminate TPS status for any reason and DHS will be authorized to extend TPS status in increments of up to 18 months. Bars gang members from TPS status and clarifies that a TPS aliens immunity from detention only extends to detention based on immigration status and not other grounds. (Section 205).
Section 205(c) contains one of the more controversial sections of the Sensenbrenner bill. It would criminalize providing material assistance to illegal aliens and would seemingly make felons out of non-profit and religious organization workers who provide housing, travel, food and medical assistance to illegal aliens. The bill does insert a provision that says religious organizations shall not be guilty of alien smuggling if the minister or missionary has been a member of the denomination for at least a year.
The penalty for certain people found guilty of hiring unauthorized workers is increased shall be increased to 10 years.
The other most controversial section of the Sensenbrenner bill makes it in to this Senate bill as well. Section 206(a) would make it a felony to knowingly be in the US unlawfully whether by illegal entry or overstaying or violating the terms of a legal entry. The first violation is punishable by imprisonment of up to six months.
The summary of the legislation provided by Senator Specter speaks to Section 206 (c) which would increase penalties for marriage and EB-5 fraud. However, the actual text of the legislation does not contain a Section 206(c).
Section 207 makes it tougher to avoid criminal sanctions for illegally reentering the US after a deportation order. For example, the standard to attack an underlying removal order is increased. And it makes it a crime to aid or abet illegal reentry. However, this does not include providing humanitarian services such as providing food or medicine or transporting someone to a place where they could receive either.
The Specter bill has provisions creating a new crime for trafficking in passports. Furthermore, willfully making false statements in a passport application is a felony. The current standard requires showing a higher standard of intent. (Section 208)
The misuse of any immigration document would be criminalized in a manner similar to the Sensenbrenner bill. (Section 208 and 209)
Section 210 would allow states to hold illegal aliens for up to 14 days after completing criminal sentences in order to more easily transfer custody to Immigration and Customs Enforcement. The section would also extend the use of the Institutional Removal Program (IRP) which identifies removable aliens in Federal and State prisons.
Section 211 would tighten voluntary departure rules including
shortening the affirmative voluntary departure period from 120 days to 60 days and the voluntary departure in removal proceedings from 60 to
45 days.
The statute of limitations for all immigration related crimes would be made a uniform ten years (Section 214).
The completion of any visa or status processing by DHS and the Justice Department will be barred while background and security clearances are pending. (Section 216).
TITLE III Increased Worksite Enforcement and Penalties
Section 301 of the Specter bill covers the unlawful employment of aliens. Employers would now be required to not only comply with I-9 rules, but also with a new Electronic Employment Verification System that is a permanent implementation of the basic pilot program that has been in existence for the last few years. Implementation of the electronic system will be rolled out over several years with the largest employers being required to participate first and then smaller employers later. DHS is also permitted to charge employers taxes tied to use of the system. This section also recognizes DOLs authority to investigate employers under the Fair Labor Standards Act of 1938.
For civil enforcement purposes, employers who hire ten unauthorized workers within a calendar year are presumed to have known that the workers were unauthorized. Knowingly hiring unauthorized workers
carries tougher penalties than unknowingly hiring unauthorized
workers. Employers who attempted in good faith to comply with the I-9 rules do have a defense, however, until electronic verification system participation is required.
DHS may require an employer to certify employment verification compliance based on an internal review as an alternative to a DOL audit. An employer will be granted a 60 day deadline that may be extended in the discretion of DHS.
Section 304 mandates that false claims to either citizenship or nationality are grounds for inadmissibility. Currently, just the former is. This has been a defense in removal cases because the I-9 form asks if someone is a citizen or national of the US while immigration law only penalizes claims of false citizenship.
Title IV Nonimmigrant and Immigrant Visa Reform
H-2C Visas
Section 401 creates a new H-2C visa. This visa appears targeted to workers either outside the US or currently in legal status in the US.
A separate guest worker program targeted at out of status workers is outlined in Title VI.
The visa is available to those coming to the US temporarily to perform temporary labor or services other than labor or services covered in H-1B, H-1C, H-2A, H-2B, H-3, or L, O, P, or R visas. The applicant must have a residence in a foreign country which the applicant has not intention of abandoning. The visa will become available one year after the date of enactment of the law and shall apply to aliens outside the US on the effective date. Rules must be released by DOL within six months of the enactment of the law.
Section 402 outlines the H-2C requirements. The employer must be capable of performing the services that are the subject of the petition. The worker must show that the he or she has received a job offer from a qualified employer. The worker must pay a $500 visa issuance fee in addition to the cost of adjudicating the petition (and this is in addition to consular reciprocal fees). Workers must have a medical examination at the workers expense. Workers must submit background information on health, criminal and security issues.
Changes of status to other visa categories are not permitted.
H-2Cs are available for an initial term of up to three years with a one time renewal for three more years. The alien is then required to depart the US for one year in order to qualify for additional H-2C time. Commuters into the US are not subject to the time limits.
H-2C status will be lost if a worker is unemployed for 45 or more consecutive days and the worker will be required to return to his or her home country. DHS may waive the return requirement.
Travel in and out of the US is permitted and return on an unexpired
I-94 is allowed even if the visa has expired. Time spent outside the US shall not extend the period of authorized admission in H-2C status.
H-2C holders who fail to depart within 10 days after the H-2C status terminates are barred from most immigration rights.
Anyone who enters or attempts to enter the US without inspection after enactment of the H-2C provisions will be barred for ten years receiving most immigration benefits.
The H-2C is portable and workers can move to new jobs as long as the new employer complies with the terms for H-2C employment.
Denials of H-2C status may not be appealed.
H-4 visas many be granted to spouses and children. H-2C visa holders must pay a $500 family supplemental application fee plus normal visa costs. Dependents must also get medical exams and have background checks. H-2C visa holders must demonstrate adequate finances to support family members coming on H-4s.
Section 403 spells out an employers obligations when hiring H-2C workers. Employers must attest that
- Hiring the H-2C will not adversely wages and working
conditions for US workers.
- The employer did not and will not cause US workers to lose
their jobs by hiring the H-2C worker. There is a 90 day look back and look forward provision.
- The worker will be paid the higher of either the actual or
prevailing wage. Private wage data may be used.
- There is no strike or other form of work stoppage.
- The employer is covered by a state workers compensation
program, the employer will provide at no cost to the worker insurance covering injury or illnesses arising due to the job. The insurance would need to be comparable to state workers compensation programs.
- Notice to workers is provided
- Unless DOL has precertified a shortage, the employer can
show there are not sufficient workers able, willing and qualified and immediately available to perform the job. Good faith recruiting efforts must be undertaken in the three month period prior to filing (with recruiting ending at least 14 days prior to filing). The job must be advertised at the actual wage paid by the employer.
- The job must be bona fide.
- Employers must maintain public access files.
- The employer must notify DOL and DHS when an H-2C leaves
the employer within three business days after the departure.
- The petition must be filed not more than 60 days before the
date the services are needed.
DHS shall have the authority to audit employers to ensure compliance.
Employers are required to retain records for five years from the date the petition is filed. (Section 403) They are also required to maintain records for at least one year that describe why US workers were not hired (Section 406).
Employers who misrepresent facts or fail to comply with the terms of the program can be barred for up to three years from sponsoring or employing H-2C workers. And punishing whistleblowing employees or former employees is prohibited.
Foreign labor contractors recruiting H-2C workers are required to disclose a variety of details to H-2C workers at the time of their recruitment including information on the proposed place of employment, the pay, the type of work, who is paying travel expenses, whether there is a strike or other similar labor dispute, whether the contractor is getting a commission based on the workers services, details regarding insurance and workers compensation coverage, and information on the risk of work related injuries. Foreign labor contractors are prohibited from charging the H-2C worker for their services.
Foreign labor contractors will be required to register with the Department of Labor and employers may only use the services of
registered contractors. DOL will issue two year renewable
certifications of these contractors. H-2C workers will also have the ability to lodge complaints against contractors with the DOL. The DOL will have the discretion to require contractors be bonded and may also deny certification if it determines the contractor lacks sufficient ties to the US to adequately enforce these rules.
Employers are subject to civil fines of $2000 up to $35,000 per worker depending on whether the violation is willful and whether a worker was harmed. Imprisonment of up to six months and additional fines of up to $35,000 are possible if a willful violation occurs and an individual suffers extreme physical or financial harm.
Under Section 404, DHS is required to set up an alien employment
management system to manage and track the employment of H-2C
immigrants. Employers shall be able to recruit and advertise
employment opportunities through the system.
The Department of Labor must set up an electronic job registry that provides information on job opportunities for US workers in order to ensure US workers are not being passed over in favor of foreign
workers. And DOL must set up a publicly accessible web page that
provide a single Internet link to each State workforce agencys electronic registry of jobs available throughout the US. (Section 406)
The US shall negotiate bilateral treaties with countries sending H-2C workers requiring the countries to accept the return of nationals ordered removed from the US within three days of such removal.
(Section 410)
Foreign Students
The Spector bill makes important changes regarding student visas.
First, F-1 optional practical training time is now extended from one year to 24 months. (Section 408). A new F-4 student visa is created
for students pursuing advanced degrees in math, engineering,
technology or the physical sciences. F-4 students would need to either return to their country of origin or remain in the US and pursue a job in their field and then pursue permanent residency. F-4s will be dual intent and the status can be extended while the applicant pursues permanent residency through a labor certification or other means. The alien must be working in his field as well to qualify to adjust status. Applicants for adjustment under this new section would pay a fee of $1000 which will fund scholarships and fraud prevention.
Section 407 also would allow F-1 and F-4 students to accept off-campus jobs outside of the students field if the student is enrolled and in good standing at their educational institution, an employer provides the school and the Labor Department with an attestation that it has spent 21 days unsuccessfully recruiting for the job and is paying the higher of the actual or prevailing wage, and the student will work no more than 20 hours during the academic term or 40 hours per week on vacations.
Section 409 exempts aliens who have earned advanced degrees in science, technology, engineering or math and have been working in their fields under a non-immigrant visa in the three years prior to filing for adjustment, recipients of national interest waivers, immediate relatives of aliens granted employment-based immigrant visas are exempt from green card quotas.
Section 409 waives the labor certification recruitment requirement for those with advanced degrees in the sciences, technology, engineering or math from American universities.
The H-1B cap is lifted for three years to 115,000. (Section 409).
After that, the cap will remain at 115,000 but may rise up to 20% per year if the whole cap is used up in the prior year. If the cap is not reached, then the cap the next year will remain the same as the current year.
Title V Backlog Reduction
Allows recapture of unused visa numbers and increases employment-based green cards from 140,000 to 290,000. Visas for spouses and children shall not be counted against the numerical limits. Immediate relatives would no longer be counted against the 480,000 annual cap on family-based immigration. (Section 501).
The per country limits are raised from 7% to 10%. (Section 502).
The allocation of family-sponsored visas is shifted as follows (Section 503):
* 10% - F1 unmarried sons and daughters of citizens
* 50% - F-2 spouses, minor children and unmarried adult sons and
daughters of permanent residents (77% of these go to spouses and
minor children of permanent residents)
* 10% - married sons and daughters of US citizens
* 30% - brothers and sisters of citizens
The allocation of 290,000 employment-based visas is shifted as follows (Section 503):
* 15% for EB-1 (was 28.6% but presumably many will now qualify in
the new uncapped category for certain advanced degree holders)
* 15% for EB-2
* 35% for EB-3
* 5% for investors (redesignated as EB-4)
* 30% for new EB-5 for other workers (old EB-3 unskilled workers).
The immediate relative category is changed to let children of spouses and parents of US citizens to obtain legal status and travel to the US to be with their families.
Title VI Conditional Nonimmigrant Workers
Subtitle A Conditional Non-Immigrant Work Authorization and Status
In addition to the H-2C visa program described in Title IV, the Specter bill creates an alternative guest worker program called conditional non-immigrant status.
Anyone present in the US before January 4, 2004 and employed in the US
since then will be eligible for conditional nonimmigrant work
authorization and status. Applicants must submit to medical
examinations and pay all back income taxes. Applicants must be submitted within a year of passage of this law. Employers are required to pay a $500 fee. (Section 601)
DHS is required to begin accepting applications within three months after the date of enactment. DHS shall process all cases within 18 months.
Despite prior status violations, recipients of these visas will have the ability to travel.
Spouses and minor children can accompany a conditional nonimmigrant if they submit a fee of $100 per family member. They may not work on the basis of being a dependent.
Failure to be employed for a 45 days stretch will render a person subject to the loss of their work status.
The conditional nonimmigrant visa is portable and employees can switch employers if they are complying with the terms of the conditional status.
An alien who fails to apply for this program will be ineligible for any relief unless the alien could not obtain such status due to reasons of age, mental impairment or physical disability.
While applications are pending, applicants will be considered to be in legal status and entitled to interim work authorization. Employers are also granted safe harbor status if they cooperate with an applicant seeking conditional non-immigrant status.
Subtitle B Grant Programs to Assist Nonimmigrant Workers
Provides funding for grants and to underwrite various education and training campaigns.
Title VII Immigration Litigation Reduction
Subtitle A Appeals and Review
This provision would now require all immigration cases to be handled by the US Court of Appeals for the Federal Circuit and that court will be increased in size by three judges to 15. This provision only applies to decisions entered on or after the date of enactment of the new law. (Section 701)
The Board of Immigration Appeals is granted the authority to issue an order of removal without remanding the case to an immigration judge.
(Section 703).
Decisions to revoke a visa and a removal order predicated on this is no longer reviewable except as it relates to questions of statutory interpretation or alleged constitutional problems. (Section 704).
Attorneys fees under EAJA are not to be paid in immigration cases for aliens who are removable, except when the DOJ or DHS determination regarding removability was not substantially justified. (Section 709)
Subtitle B Immigration Review Reform
The President will now choose the Director of the Executive Office for Immigration Review. (Section 711). The Director shall choose appoint a Chief Immigration Judge. (Section 713). The Director, in consultation with the Chief Immigration Judge, shall appoint immigration judges.
Judges will be granted seven year appointments and can serve for up to
14 years. (Section 713).
_________________________________________________________________
About The Author
Gregory Siskind is a partner in Siskind Susser's Memphis, Tennessee, office. After graduating magna *** laude from Vanderbilt University, he received his Juris Doctorate from the University of Chicago. Mr.
Siskind is a member of AILA, a board member of the Hebrew Immigrant Aid Society, and a member of the ABA, where he serves on the LPM Publishing Board as Marketing Vice Chairman. He is the author of several books, including the J Visa Guidebook and The Lawyer's Guide to Marketing on the Internet. Mr. Siskind practices all areas of immigration law, specializing in immigration matters of the health care and technology industries. He can be reached by email at gsiskind@visalaw.com.
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(American workers, join us in fighting the H-1b increasae! Plseae use the following URL to send a protest letter to Congress. We stopped the H-1b increase last year and with your help and we can stop it again this year.
<a class="jive-link-external" href="http://www.unionvoice.org/campaign/H1B" target="_newWindow">http://www.unionvoice.org/campaign/H1B</a> )
Dr. Matloff is a computer science professor, and, from what my contacts at UC Davis tell me, not an overly good one...
It is always telling that you anti-immigrants try to use his job title as professor as a way to gain credibility. Professor is a job title, it doesn't imply authority. And Dr. Matloff doesn't have any knowledge nor authority to talk about immigration.
visas. We must first begin ENFORCEMENT of the
present laws before we change something that hasn't and won't work the way the government
applies them. Build a wall, a fence, patrol the borders as we should have been all along.
Maybe a wise application of unmanned aircraft
could bridge the gaps and make true enforcement possible.
So go ahead and seal America off from the rest of the World. Building walls worked great for the old Soviet Bloc, didn't it?
Send money to candidates that support American Engineers and Scientists.
In the long run, that is what helps everybody, including American engineers and scientists.