Friday, May 4, 2007

Congressional Report documents that H-1b violates the U.S. worker protections of the Immigration and Nationality Act

On April 27, 2007 the Congressional Research Service prepared Immigration of Foreign Workers: Labor Market Tests and Protections, which documents many of the flaws in the H-1b program. (All page numbers are the PDF page number.)

Many H-1b proponents claim that the H-1b program is more restrictive than in the past. But in fact the number of H-1b have tripled since the dot-com era of the late 1990s:
The number of visas for employment-based temporary nonimmigrants rose from just under 600,000 in FY1994 to approximately 1.2 million in FY2005. In particular, “H” visas for temporary workers tripled from 98,030 in FY1994 to 321,336 in FY2005. (Page 2) (See also Figure 2 on p.13)

The report reveals that the H-1b program violates the Immigration and Nationality Act (INA):

The labor certification ground for exclusion covers both aliens coming to live as LPRs and as temporarily-admitted aliens (i.e., nonimmigrants).The INA specifically states:
Any alien who seeks to enter the United States for the purpose of performing skilled or unskilled labor is inadmissible, unless the Secretary of Labor has determined and certified to the Secretary of State and the Attorney General that — (I) there are not sufficient workers who are able, willing, qualified ... and available at the time of application for a visa and admission to the United States...

But Table 1 on page 17 reveals that no effort to first recruit U.S. workers is required by the H-1b program. And Footnote 34 on page 14 documents that, as long as H-1b are paid at least $60,000 OR have at least a masters degree, H-1b workers can comprise 100% of an employer's workforce, yet they will not be deemed "H-1b dependent" employers.

We will continue to research details and update this blog. But in 1998 Bill HR 3273 circumvented the INA: "To treat certain information technology occupations as if the Secretary of Labor had made a determination under section (a)(5)(A) of the Immigration and Nationality Act, to limit such determinations, and for other purposes. " (NOTE: On further review it appears that this Bill never became law. But the purpose seems unclear since there was already no requirement to recruit or attest that no qualified Americans are available.)


Anonymous said...

As an unemployed IT professional with 30+ years solid experience, I say 'YeeHaw' ! Its a start . Now what can we do with this info ?

Colleen Yuan said...

In the CRS Report section entitled "Certification versus Attestation"… Corporations are requesting a change in the rules...
· Many (corporations) argue that the labor market tests in the INA in their current forms are insufficiently flexible, entail burdensome regulations, and may pose potential litigation expenses for employers.

· Proponents (corporations) of these views support extensive changes — particularly moving…

· from labor certification based upon documented actions (i.e., evidence of recruitment advertisements)

· to a streamlined attestation of intent. These advocates of streamlining maintain it would increase the speed with which employers could hire foreign workers and reduce the government’s role in delaying or blocking such employment.52

This confirms what we have been talking.
Companies do not want to even advertise these jobs to American Workers and corporations are trying to sell the notion that speed is good.

Good for who?

This is not for the common good of our country.


Anonymous said...

Ask the Congress leaders in your community to bring the wages of H1B employees to the level that is paid to American employees in the region. If the employer is paying less, then the employer should be barred from filing for an H1B completely.

Anonymous said...

We can all agree that the "best and brightest" in any field should be paid more than 60k per year.

We are told that the H-1B visa holders are the "best and brightest".

Then all H-1B visa holders should be paid more than 60k per year.

The law states that as long as H-1Bs are paid 60k or more then the employer is not "H1-B dependent".

But all H-1Bs should be paid more than 60k per year (after all, we are told they are the world's "best and brightest").

So no employers should be "H-1B Dependent".

Then why the distinction between "H-1B Dependent" and "H-1B Professional"?

Perhaps it is because H-1Bs are not really the worlds "best and brightest".

So stop the lies to US citizens that H-1B visa holders are the world's "best and brightest". Stop the lies that say US workers aren't being harmed by this loophole ridden program.

Anonymous said...

At my house we have rules. When my kids break a rule (1st time), I explain it to them again to make sure they understand it completely. If they break the rule 2nd time, they lose priveleges for a somewhat painful period of time, but then get another chance. If they break the rule a 3rd time, thats it, we don't even go there again. Done.

Lets get real here, put a moratorium on any visa that could be used for a high skilled service job, until we get a consensus on whats happening. Companies have to be responsible for following the laws in spirit - the law was written to protect the American worker.

Due to an excess of foreign visa workers and a common belief among employers that "inexpensive" foreign IT workers were available, the IT hiring environment changed to the degree that it was unfriendly to American IT workers. The entry level wage dropped - that is why I was laid off.

I want to know based on that, can I sue for lost wages?