Since the House Judiciary Subcommittee on Immigration offered acceptance of public testimony on the "Protection of U.S. Workers", and because they chose not to put my testimony on the public record, I offer it here for public perusal. I expect similar lack of interest from the reader.
STATEMENT FOR PUBLIC RECORD
Re: Oversight Hearing "Is the Labor Department Doing Enough
to Protect U.S. Workers?" 06/22/2006
Hon. Chairman Hostettler and Distinguished Members of Congress,
Thank you for sponsoring this hearing on visa program oversight. I am also grateful that I am allowed to submit my statement on these issues into the public record.
I hereby swear that my testimony is true and complete.
I am not an immigration attorney. My analysis of these visa regulations is just my opinion.
The Department of Labor Has No Authority To Enforce U.S. Worker Protections
20 CFR 655.705 - (a) Department of Labor (DOL) responsibilities. DOL administers the labor condition application process and enforcement provisions (exclusive of complaints regarding non-selection of U.S. workers, as described in 8 U.S.C. 1182(n)(1)(G)(i)(II) and 1182(n)(5)). Two DOL agencies have responsibilities:
(1) The Employment and Training Administration (ETA) is responsible for receiving and certifying labor condition applications (LCAs) in accordance with this subpart H. ETA is also responsible for compiling and maintaining a list of LCAs and makes such list available for public examination at the Department of Labor, 200 Constitution Avenue, NW., Room C-4318, Washington, DC 20210.
(2) The Wage and Hour Division of the Employment Standards Administration (ESA) is responsible, in accordance with subpart I of this part, for investigating and determining an employer's misrepresentation in or failure to comply with LCAs in the employment of H-1B nonimmigrants.
LCAs have been certified by DOL for programmers at $5.00 per hour.
http://www.zazona.com/...
There Are No U.S. Worker Protections, Just "Loopholes"
20 CFR 655.731 - (a) Establishing the wage requirement. The first LCA requirement shall be satisfied when the employer signs Form ETA 9035 or 9035E attesting that, for the entire period of authorized employment, the required wage rate will be paid to the H-1B nonimmigrant(s); that is, that the wage shall be the greater of the actual wage rate (as specified in paragraph (a)(1) of this section) or the prevailing wage (as specified in paragraph (a)(2) of this section). The wage requirement includes the employer's obligation to offer benefits and eligibility for benefits provided as compensation for services to H-1B nonimmigrants on the same basis, and in accordance with the same criteria, as the employer offers to U.S. workers.
(1) The actual wage is the wage rate paid by the employer to all other individuals with similar experience and qualifications for the specific employment in question.
The employer may simply provide unique job requirements and any wage becomes reasonable. Information technology jobs are notorious for esoteric languages, methods, and operating systems. This obfuscation is also the modis operandi of employers in rejecting U.S. citizens who may lack one requirement. Experienced U.S. programmers can adapt to new languages and environments with practically no learning curve.
(2) The prevailing wage for the occupational classification in the area of intended employment must be determined as of the time of filing the application. The employer shall base the prevailing wage on the best information as of the time of filing the application. Except as provided in paragraph (a)(3) of this section, the employer is not required to use any specific methodology to determine the prevailing wage ....
(3) Once the prevailing wage rate is established, the H-1B employer then shall compare this wage with the actual wage rate for the specific employment in question at the place of employment and must pay the H-1B nonimmigrant at least the higher of the two wages.
I can drive a truck through that.
20 CFR 655.738 - Non-displacement of U.S. workers. An employer that is subject to these additional attestation obligations (under the standards described in §655.736) is prohibited from displacement of any U.S. worker(s) -- whether directly (in its own workforce) or secondarily (at a worksite of a second employer) -- under the standards set out in this section.
This
"second employer" language opens up the world of
outsourcing and providing
"body shop" contract services with temporary foreign labor. Were our immigration laws intended to be exploited by consulting companies? My analysis of public LCA databases shows that over 90% of all non-immigrants on LCAs are submitted by consulting companies. Many consultancies request 100 or more non-immigrants on one LCA for one job description. These companies are often in competition with each other for the same jobs at their mutual clients. Competition results in "benching" non-immigrants without pay. If the non-immigrant complains about the "benching", the DOL does not investigate because it has no adequate personnel nor funding nor authorization. The primary lobbyists for increases in temporary work visas and loudest "skills shortage shouters" are universities (in their zeal to shore up dwindling enrollments), IBM Global Services, Accenture (Arthur Anderson), Bearingpoint (KPMG Consulting), Electronic Data Systems, Affiliated Computer Services, HCL America, HPS America, Computer Associates, CapGemini, Deloitte, Cyber, Computer Sciences Corp., Howard Systems Intl., Infosys, Keane, Perot Systems, PriceWaterhouseCoopers, Satyam Computer Services, Tata Consultancy Services, Teksystems, Wipro and their mouthpiece Information Technology Association of America.
Here is an example;
http://www.h1b.info/...
Company..............LCAs.....H-1Bs
HPS America........733........ 36,650
HPS America is the conglomerate of Perot Systems ("that sucking sound") and the American subsidiary of Hindustan Computers Ltd (HCL). These guys requested 50 aliens on each page of their LCA applications and visa petitions, to save trees.
(c) Direct displacement. An H-1B-dependent or willful-violator employer (as described in §655.736) is prohibited from displacing a U.S. worker in its own workforce (i.e., a U.S. worker "employed by the employer") within the period beginning 90 days before and ending 90 days after the filing date of an H-1B petition supported by an LCA described in §655.736(g).
Only "H-1B-dependent or willful-violator" employers are subject to non-displacement of U.S. worker provisions. Even within this tiny class of companies, outside of the six-month range, you can displace U.S. workers to your heart's content.
20 CFR 655.736 - H-1B-dependent employers and willful violators Two attestation obligations apply only to two types of employers: H-1B-dependent employers (as described in paragraphs (a) through (e) of this section) and employers found to have willfully violated their H-1B obligations within a certain five-year period, (as described in paragraph (f) of this section). These obligations apply only to certain labor condition applications filed by such employers (as described in paragraph (g) of this section), and do not apply to LCAs filed by such employers solely for the employment of "exempt" H-1B nonimmigrants (as described in paragraph (g) of this section and §655.737). These obligations require that such employers not displace U.S. workers from jobs (as described in §655.738) and that such employers recruit U.S. workers before hiring H-1B nonimmigrants (as described in §655.739).
This piece of work means that only a special, miniscule class of company is subject to the non-displacement of U.S. worker provision and to the U.S. worker recruitment provision. This class is so special there may not be any companies in the country that fall within the definitions. (We have already shown that DOL is not empowered nor funded to enforce its regulations).
(a) What constitutes an "H-1B-dependent" employer?
(1) "H-1B-dependent employer," for purposes of THIS subpart H and subpart I of this part, means an employer that meets one of the three following standards, which are based on the ratio between the employer's total work force employed in the U.S. (including both U.S. workers and H-1B nonimmigrants, and measured according to full-time equivalent employees) and the employer's H-1B nonimmigrant employees (a "head count" including both full-time and part-time H-1B employees) --
(i)(A) The employer has 25 or fewer full-time equivalent employees who are employed in the U.S.; and
(B) Employs more than seven H-1B nonimmigrants;
(ii)(A) The employer has at least 26 but not more than 50 full-time equivalent employees who are employed in the U.S.; and
(B) Employs more than 12 H-1B nonimmigrant; or
(iii)(A) The employer has at least 51 full-time equivalent employees who are employed in the U.S.; and
(B) Employs H-1B nonimmigrants in a number that is equal to at least 15 percent of the number of such full-time equivalent employees.
So, companies may replace up to seven U.S. citizens if they have less than 26 full time employees, or companies may replace 12 U.S. citizens if they have 26 to 50 FTEs, or
if the company has 10,000 employees, it may replace 1,499 U.S. citizens in their IT department by H-1B non-immigrants without a worry. No other visa category provides this degree of labor arbitrage. This deceptive legislation is unconstitutional and a violation of the spirit of the Immigration and Nationality Act.
(d) Secondary displacement. An H-1B-dependent or willful-violator employer (as described in §655.736) is prohibited from placing certain H-1B nonimmigrant(s) with another employer where there are indicia of an employment relationship between the nonimmigrant and that other employer (thus possibly affecting the jobs of U.S. workers employed by that other employer), unless and until the H-1B employer makes certain inquiries and/or has certain information concerning that other employer's displacement of similarly employed U.S. workers in its workforce. Employers are cautioned that even if the required inquiry of the secondary employer is made, the H-1B-dependent or willful violator employer shall be subject to a finding of a violation of the secondary displacement prohibition if the secondary employer, in fact, displaces any U.S. worker(s) during the applicable time period (see §655.810(d)). The following standards and guidance apply under the secondary displacement prohibition:
(3) What other/secondary employers are included in the prohibition on secondary displacement of U.S. workers by the H-1B employer? The other/secondary employer who accepts the placement and/or services of the H-1B employer's nonimmigrant employee(s) need not be an H-1B employer. The other/secondary employer would often be (but is not limited to) the client or customer of an H-1B employer that is a staffing firm or a service provider which offers the services of H-1B nonimmigrants under a contract (e.g., a medical staffing firm under contract with a nursing home provides H-1B nonimmigrant physical therapists; an information technology staffing firm under contract with a bank provides H-1B nonimmigrant computer engineers). Only the H-1B employer placing the nonimmigrant with the secondary employer is subject to the non-displacement obligation on the LCA, and only that employer is liable in an enforcement action pursuant to subpart I of this part if the other/secondary employer, in fact, displaces any of its U.S. worker(s) during the applicable time period. The other/secondary employer will not be subject to sanctions in an enforcement action pursuant to subpart I of this part (except in circumstances where such other/secondary employer is, in fact, an H-1B employer and is found to have failed to comply with its own obligations). (Note to paragraph (d)(3): Where the other/secondary employer's relationship to the H-1B nonimmigrant constitutes "employment" for purposes of a statute other than the H-1B provision of the INA, such as the Fair Labor Standards Act (29 U.S.C. 201 et seq.), the other/secondary employer would be subject to all obligations of an employer of the nonimmigrant under such other statute.)
Most large companies contract with multiple consulting vendors, so it is very easy to side-step these lame "obligations".
The large corporation/client is above the law.
(4) When does the "secondary displacement" prohibition apply? The H-1B employer's obligation of inquiry concerns the actions of the other/secondary employer during the specific period beginning 90 days before and ending 90 days after the date of the placement of the H-1B nonimmigrant(s) with such other/secondary employer.
Again, outside the 6 month placement period, U.S. citizen layoffs may continue unabated.
Information technology companies contributed $6 million to Senatorial campaigns and $6 million to House campaigns in 2004.
I am currently unemployed and cannot find work.
I am an information technology professional with 31 years of experience. 21 of those years have been as a consultant to many top 100 US corporations. Residing in Houston, TX, I have worked for several of the local energy companies - EXXON, Texaco, ENRON, and others - and in the last decade have been working anywhere I can find a job, primarily banks and insurance companies. I have worked, away from my home and family, in Arkansas, Georgia, Ohio, Virginia, and Illinois, anywhere I can find a job that pays enough to support out-of-town working expenses. I must pay for my own room and board, air fares, etc. Companies no longer pay these expenses in my profession.
During the past 5 years I have been unemployed for 30 months.
My career was a continuous evolution until 2001, when I filed for unemployment for the first time. I have seen Houston Chronicle classified ads for computer jobs go from 12 full pages in mid-1980 to the current one-third of one column. The jobs displayed are for esoteric languages and operating systems and offer salaries in the range of $30,000 to $40,000.
Thousands apply for one job.
Whenever a job appears in an ad for my skills and talents, I am one of thousands applying for that one job. Local recruiting agents have told me on many occasions that they receive from 500 to 1000 resumes per day for one position. Large corporations have had to outsource their human resources operations because they could not handle the volume of applicants. You have to camp out in their offices and become a nuisance in order to be recognized.
Yet, when I land one of these jobs, there are the H-1Bs and L-1s all around me. Some IT divisions have 20% to 50% foreign employees.
I once thought this was a phenomenon particular to Houston. I have since discovered that it is countrywide.
Industry and university lobbyists do not tell the whole story.
Citizen enrollment in science and engineering disciplines is declining. Foreign enrollment is also declining. The reason is that there are no jobs for graduates. These jobs have been taken by aliens on H-1B, L-1, TN, F-1, M-1 and J-1 visas. American students are not stupid. They are opting for careers in law, politics, business management, and criminology - areas of opportunity. Their elders and guidance counselors warn them not to waste their money and education on computer science or engineering.
Congress has been getting a one-sided story.
I hereby request that this committee look into the background of House Resolution 717 (109th). Congress asked, and paid $335,000, for analytic reports of the impact of these issues on the American worker and workplace and got nothing back but delays and a watered-down, 12-page, chopped, and one-sided report consistent with the claims of industry lobbyists. Government analysts who worked on these studies have attested to House members of these claims. Some members of Congress will resist this resolution, others support it. This is the issue.
Temporary work and student visas take jobs from Americans.
You cannot separate the H-1B visa from the L-1 and other temporary employment and student visas. All recipients of these visas compete in the American job market. The H-1B and L-1 visas are the precedent to offshore outsourcing of jobs. Aliens are brought in, trained by their citizen counterparts, eventually assume administrative and management duties, then the citizens are laid off, their health and retirement costs, which were a function of their wage and employment contract, are recovered by the company, and the jobs go overseas. The aliens are able to administer the "knowledge transfer" in their native languages.
The visa programs are being grossly abused.
This citizen replacement process is a fundamental violation of the US Constitution and the Immigration and Naturalization Act. Congress appears to have no knowledge of this "knowledge transfer" process and has not made any diligent inquiries or studies. Congress looks at each element of this process and sees no connection. Such a connection, after all, would suggest conspiracy with undertones of RICO.
"Loopholes"
The "loopholes", peculiar to H-1B legislation - "H-1B dependent", "specialized knowledge", "attestations of offers of employment to citizens", "wage survey" - were well crafted to deny American workers due process in unfair employment practices. The inherant assumption of a "skills shortage" overrules any claim. My favorite denial in EEOC claims - "American is not a national origin group as defined by Title VII of the Civil Right Act, as amended." We are now without a country and don't have a leg to stand on.
Here are some statistics you will never see from the industry and university lobbyists. These numbers are extracted from tables in the USCIS statistical yearbooks.
Temporary Admissions in selected categories
Sources:
http://uscis.gov/...
http://uscis.gov/...
"High Tech" Visa Glut Millions
Truncated
Year L-1 Visa H-1B TN F-1/M-1 J-1 Total Cumul.
1981 38,595 240,805 80,230 0.359 0.359
1982 38,595+ 240,805+ 80,230+ 0.359+ 0.719+
1983 38,595+ 240,805+ 80,230+ 0.359+ 1.078+
1984 38,595+ 240,805+ 80,230+ 0.359+ 1.438+
1985 65,349 47,322 257,069 110,942 0.480 1.919
1986 65,349+ 47,322+ 257,069+ 110,942+ 0.480+ 2.399+
1987 65,349+ 47,322+ 257,069+ 110,942+ 0.480+ 2.879+
1988 65,349+ 47,322+ 257,069+ 110,942+ 0.480+ 3.359+
1989 62,390 89,856 334,402 178,199 0.664 4.024
1990 63,180 100,446 326,264 174,247 0.664 4.690
1991 70,505 114,467 343,238 182,693 0.710 5.401
1992 75,315 110,223 368,686 189,485 0.743 6.144
1993 82,606 92,795 370,620 196,782 0.742 6.887
1994 98,189 105,899 394,001 216,610 0.814 7.702
1995 112,124 117,574 23,904 364,220 201,095 0.818 8.521
1996 140,457 144,458 26,987 426,903 215,475 0.954 9.475
1997 140,457+ 144,458+ 26,987+ 426,903+ 215,475+ 0.954+ 10.429+
1998 203,255 240,947 59,061 564,683 250,959 1.318 11.748
1999 234,443 302,326 68,354 567,146 275,519 1.447 13.196
2000 294,658 355,605 91,279 659,081 304,225 1.704 14.901
2001 328,480 384,191 95,486 698,595 339,848 1.846 16.748
2002 313,699 370,490 73,699 646,016 325,580 1.729 18.477
2003 298,054 360,498 59,446 624,917 321,660 1.664 20.142
2004 314,484 386,821 66,207 620,210 321,975 1.709 21.851
Totals 3,248,072 3,610,342 591,410 9,727,381 4,674,515 21.851
Grand Estimated Total 21,851,720
+: conservative estimate, numbers not provided
L-1: Intra-company Transfers
H-1B: Specialty Workers and Fashion Models
TN: NAFTA
F-1/M-1: Academic and Vocational Students
J-1: Exchange Visitors