Sunday, April 8, 2007

Programmers Guild supports the Durbin/Grassley "H-1B and L-1 Visa Fraud and Abuse Prevention Act of 2007"

S.1035 by Durbin and Grassley would add some basic protections for U.S. workers to the H-1b guestworker program. The bill is here.

The bill makes the "recruitment of U.S. workers provision" apply to all H-1b employers. Currently only the 1% of "H-1b-dependent" employers must first recruit U.S. workers. The statutory provisions of this recruitment are here.

Unfortunately the bill still permits the displacement of qualified U.S. workers with H-1b - see the last paragraph of the link above: "The employer is required to have offered the job to any U.S. worker who applies and is equally or better qualified for the job than the H-1B nonimmigrant." The problem is that "better qualified" is highly subjective: Who is "more qualified" - a candidate with a BS degree and 3 year's experience, or a candidate with an MS degree and 1 year experience? An employer could argue this either why, when in fact both candidates are "qualified." This should be fixed - and H-1b should only be hired when no qualified Americans are available and need the job.

This bill bars the "displacement of U.S. workers." Currently it is legal for employers to use the H-1b visa to displace qualified American workers. The statutory provisions of this non-displacement are here.

The bill calls for a prevailing wage based on the average wage of U.S. workers in the same classification, as opposed to the 17th percentile if the current "prevailing wage."

The bill calls for jobs to be advertised on the DOL website for 30 days. While this is an improvement over the current disclosure several months after the fact, in our opinion it falls short. We call for:

1) Jobs publicly posted on DOL website for 30 days
2) Candidate publicly apply with summary resumes during those 30 days. (much like posting feedback to an article - no "new technology" required)
3) After 30 days, if employer still plans to hire the H-1b, employer posts a public statement explaining why none of the U.S. worker applicants were suitable.
4) U.S. candidates given 15 days to post objections.
5) This exchange remains public record and can serve as evidence for civil and criminal cases.

Even the current "must demonstrate that no qualified U.S. workers are available" in order to get a greencard under PERM rules has degenerated into a sham of:

1) Employer runs a few fake job ads
2) Employer internally ignores all qualified applicants
3) Employer files copies of the fake job ads as evidence of "good faith" recruiting, when it is just the opposite.

Information and examples of these PERM fake job ads is here

Finally the bill authorizes the hiring of 200 DOL personnel to effect these protections. This cost of roughly $10 to $20 million should be borne as fees to users of the H-1b program rather than supported by taxpayers.


Anonymous said...

Finally..... a step toward an honest, auditable, level playing field.

This issue is about so much more than just American programmers v.s. overseas programmers.

Our society can not countinue to place it's skilled technical workers on a grossly uneven playing field. Those who do not loose their jobs outright, get fed up with conditions in the marketplace and leave the field.

Either way, the loss of our technical talent is just like sawing the rungs out our technological and social ladders.

Its time to restore some fairness and honesty to the way corporate america conducts itself.

Anonymous said...

I just got off the phone with a recruiter placing device driver candidates with a large software concern. When I mentioned my recent on-site rates, she was up front with me that the current supply of H1B visa holders was sufficient to fill all of her $45/hr max positions, and therefore did not anticipate any issues with this year's cap having been met in a single day.

Anonymous said...

People who complain will keep complain even if this bill exists.

Come on, at that time, you guys will then say the prevailing wage is not accurate, people're cheating, blah blah blah...

It's a waste of time.

Anonymous said...

It's wise for American tech workers to stand up for their rights.

Why do you think corporations spend millions of dollars lobbying Congress to change the rules in their favor?

Trust me, Microsoft, Intel, IBM, and other ITAA members know full well the time and money spent lobbying is just the cost of doing business - an investment.

Anonymous said...

This is an excellent step forward to help the tech industry. If something isn't done to curve the tech industries problems, the tech industry will end up like the manufacturing industry...overseas. Corporate greed is what drove manufacturing out of this country not the inability to compete. We need to have more bills like this introduced to prevent corporations from undermining the tech industry in this country so the tech industry does not end up like manufacturing industry in this country...totally destroyed.

Colleen Yuan said...

(1) Legitimate(recruiting) criteria, meaning criteria which are legally cognizable and not violative of any applicable laws
(e.g., employer may not use age, sex, race or national origin as selection criteria);.

(j) In addition to conducting good faith recruitment of U.S. workers
(as described in paragraphs (a) through (h) of this section),

the employer is required to have offered the job to any U.S. worker who applies and is equally or better qualified for the job than the H-1B nonimmigrant (

see 8 U.S.C. 1182(n)(1)(G)(i)(II));

this requirement is enforced by the Department of Justice

(see 8 U.S.C. 1182(n)(5); 20 CFR 655.705(c)).

Anonymous said...

HA HA HA !!!! I know that this will never pass because reps and Senators are not as idiotic as protectionists like you. India and Chinese markets have enough potential and American companies will not like any political controversy that can cut their selling capabilities in these high growth markets. If this bill passes, jobs will not be outsourced but off shored.
This is called Global Economy and get used to it.Learn some skills and compete. Understand that unemployment rate in the country is just 4.4%. Also an FYI for your general knowledge- Indians are not cheap workers and Every 1 Indian out of 10 in US is a millionaire.
So stop whining and practice to play the game.

Emma said...

With capitalism (especially in a global economy), the only thing that matters is money. I commend the people who created this blog for their passion and compassion, but you can't win against the Indian lobby cartel, Microsoft, IBM, the other corporate giants, and the Americas who are making money in the stock market. I wish I could take back the years I invested. Anyone who is reading this...If you are an American IT worker, you need to start making plans to get out and invest your innovation and intelligence in another field. Staying in IT is too risky. Thousands upon thousands of American IT workers have already been displaced by foreign competition whether H1B-visas or offshoring. The is no stopping this trend because too much money is involved. You may be able to hang on while you are young, but the older you get the less desireable you will be to corporate employers and you will eventually be replaced by foreign workers who are cheaper and more manageable. Think about it...there is no respect for having more than 1 - 5 years experience. Project managers now don't need any technical knowledge. Fact, it works against you because PMI has made it a bad thing. What other field can you think of that works this way.

Anonymous said...

Well All Americans who complain H1B take this:
You want to open McD Restaurants in India, Sell you TVs and machines in india, sell compressors and turbines in India/China - Dont local makers loose business when these companies invade the market. Dont locat restaurants get hurt when McD opens next door. They have to fire people or even shut down. Arent there job loses? American company sells product in India by causing loss of Indian jobs/busineses and pay millions in taxs to US Govt from their income and you want to enjoy that tax money which came from India/China.....
OPEN YOUR EYES AND DONT CRY LIKE KIDS. YOU WANT TO ENTER OTHER COUNTRIES AND DONT WANT OTHERS TO ENTER want to enjoy the fruits of global economy and complain and cry when others do it ....

Anonymous said...

I have worked in the Immigration field for a few years and am very happy to see the posts regarding displacing US workers. IT DOES HAPPEN! US workers who apply for PERM job ads do not have the opportunity to even get the actual job. One's that are qualified just prevents the company from filing the PERM application at that time. The government really needs to step up and prevent this. I've stopped working in Immigration because of it. Wasn't giving me a good conscious.

Anonymous said...

Cheap labor is not always good labor, I think we should change our focuses to what we could bring to the table not to what it has been taken from us.

American companies looking at for their selves may be not looking at for the american people. But american people need to start looking out for their selves, we need to stop buying all this video games and all the products that are produced outside of america by american companies.

we need to start educating our kids, reach out to american's with limited opportunity, influence your surrounding to develop a better job ethic, volunteer to share your skills, learn how to work with what you have instead of consuming every year. we could actually become activist around our community and boycout the system, we shouldn't bow down for the system. if we play great role in our community and build our trust among americans we could win this battle, the government don't control us neither the companies we control them.

if it wasn't for american people these companies don't exist, the fight is simple but we thinking too much.

Anonymous said...

I read most of the comments here and it looks like some people have a total understanding of what is going on.

The problem is not competing against indians, chinese or other foreign Techies. Corruption is the problem, don't tell me all these people who came from india or china are competetive enough to stay on their job if you do you are naive.

They manipulate the system and use false credentials to take the job they don't deserve. are they capable of doing the job? probably so but there is so much to it than that, if i have to explain every detail one book won't be enough.

The income is coming to this country from other countries are not any where close leaving the country. we pay the taxes and the benefit is for the american companies that keeps on growing but it will be soon enough that they won't be able to sell their products in u.s not only people will learn but people won't be able to afford it.

people please consider the life style, living expense and the education system and pay american's goes through and considers where the others come from before you pass your judgments.

If i spent over $40G to get through college and can't afford to pay it back what does this say for other americans who just graduated from highschool?

we go through so much pain to finish school unlike our competetives we can't even guarantee their credentials come and take the job we deserve.

This is one scenario of fact i will leave all of you with. There are a lot of indian operated IT recruiting companies, what they do is they teach you how to work with one thing only for three month and tailor your resume and place you on a job market using their inside connection. That person doesn't know anything but that specific skill they have learned through that 3 month term, is that fair for us to sweat 4-6years dealing with a lot of frustration learning what the american education require and let these people take our job.

Anonymous said...

1) To the last person who posted: It sounds like you went to prison instead of college. I went to college and got an education. I found it very rewarding. If the only reason that you went to college was to get "an entitlement" or "what you deserved" from corporate america, then I think it sounds like you got it.
2)Life is not fair. Whether you are an American, a man, a woman, a person of color, a foreign national or a disabled person, we all get crapped on. The richest 1% - 3% of the people in the world have all of the money and the power. And, if you are looking for fairness, peace and harmony out of American corporations who are in bed with the American government who is writing the laws, then you are going to have a long life of disappointment.
3) Have you considered that maybe you are simply not a "corporate employee type"? Maybe it's time to work for a small busines, start your own small business or work for a not-for-profit where perhaps the world might make a little more sense and not be quite so devastatingly crappy.

Kamath said...

IBM the largest IT company doing the same thig but in a big way. It is queit evident if you read the question #4 in FAQ give below. IBM is cheatng US govt: and employees by stating skilled labours.
IBM created a virtual compay called GST as 100% subsidary company and processng L1 visas for their employees and stopped processing H1 by paying less to employees. FAQ send by GST to their employees

FAQs (GST Employees)
Q1. What changes are we making?
A1. Two changes are being made to the model for delivering onsite resources to US-based engagements: 1. All new Visa applications will be submitted through the IBM India US office. 2. Conversions from IBM India US professionals into GST will be on hold until further notice.

Q2. Why are we making these changes?
A2. US Immigration policy at this time is uncertain. Therefore, pro-active measures are being taken to ensure execution of global workforce strategy in a way that enables the fulfillment of client commitments.
Q3. I am a GST employee. Will my compensation or terms and conditions change as a result of this announcement?

A3. No, there will be no change to your compensation as a result of this announcement. However, terms and conditions will continue to evolve, as was previously scheduled, to align with the market and gain consistency between IBM India US and GST. The Terms & Conditions for both entities are being brought at par and will be effective as of June 2nd,2008. You will receive a memo detailing these changes on June 2nd, 2008 and the Handbook will be uploaded into the GST Portal on that date.

Q4. Will GST and IBM India US office continue to co-exist?

A4. Yes. IBM is committed to offering opportunities for the global workforce to gain onsite client experience in the US at competitive market rates. While the IBM India US and GST strategy will continue, several changes are being made to increase the speed and reliability of this channel in the near-term.

Anonymous said...

If Senators really cared about reforming H1B-L1B visa program then they would have also considered putting any clause that have worked skilled workers. All they care about is their points.

Read this Article: "Senators Durbin-Grassley: When will we get our Reform Bill?"