Bangladeshi Canadian Amit made a history…….

The foresight in this decision allowed the family to persevere when a hydro-electric dam built in their traditional area submerged the land. While a large segment of the tribe moved to remote areas for a fresh start, Chakma’s father took the family to work in a nearby town, where Chakma was able to enroll in school.

Interesting article for those of you going through this grueling and frustrating process.

----------------------------------------

Immigration matters / David B. Palinsky

The H-1B program: Mend it, don't end it

Link: http://hsdailywire.com/single.php?id=6792

Published 9 September 2008

Any required labor-market test must facilitate extraordinary alacrity; delays of years, months, or even weeks are unacceptable; similarly, H-1B workers should be paid the same wage as their U.S. counterparts: The H-1B program should not be a means by which "cheap foreign labor" is imported

This is the first installment of my column on the legal aspects of immigration issues. In my column I will address legal questions pertaining to immigration, with emphasis on business-related immigration, employment-based immigration, and similar matters. Readers may send me questions on topics and issues which are of interest to them and their businesses. I will post some of these questions, and my answers to them, in the column.

Regular readers of the  HS Daily Wire are well aware of the limited number of H-1B visas available to U.S. employers seeking to hire "Specialty Workers" for positions requiring a bachelor's degree or higher (see, for example, HS Daily Wire 03/17/08, 03/31/08).

On 10 April 2008, U.S. Citizenship and Immigration Services (USCIS) announced that a preliminary count indicated that 163,000 H-1B petitions were submitted during the filing period of 1 April  through 7 April. Of these 163,000 petitions, 31,200 were seeking classification pursuant to the "advanced degree" exemption (an extra 20,000 visas are allotted for those with a master's degree or higher -- but only if the degrees are granted by an institution of higher education in the United States). For FY2009, the period for which the visas are being sought, Congress has imposed a cap of 65,000 regular H-1B visas and 20,000 advanced degree exempt H-1Bs. USCIS will now conduct a "computer-generated random selection process" (that is, a lottery) beginning with the selection of the 20,000 petitions under the advance degree exemption. Advanced Degree petitions not selected in the initial lottery will join the random selection process for the 65,000 "regular" H-1B visas.

Many in corporate America are dismayed by the "random selection process." The solution most often advocated to the limited number of H-1B visas is a steep increase in the number of visas allotted each year or a removal of the cap entirely. Increasing the H-1B cap -- and the H-1B program in its entirety -- is not without its critics. Some of the arguments for maintaining, restricting, and even eliminating the H-1B program are compelling on their face, but when examined more closely they reveal a pattern of misunderstanding and, occasionally, outright deception.One of the most vocal  opponents of the H-1B program is Ron Hira, an assistant professor of public policy at the Rochester Institute of Technology. Hira, though, cannot be regarded as an objective, disinterested academic: He is the former chairman of the Career and Workforce Policy Committee at the Institute of Electrical and Electronics Engineers (USA) -- a labor union-type organization the stated goal of which is "to protect and create jobs for the IEEE's 235,000 U.S. members and all U.S. electrical, electronics and computer engineers."

While traveling widely varying paths, Hira and I do arrive at similar conclusions with regard to the H-1B program. The existing system is broken and desperately in need of repair. Hira argues that, "[r]ather than preventing the outsourcing of jobs, the H-1B program acts in just the opposite way, by accelerating the outsourcing of high-wage, high-skill jobs to low-cost countries." In a briefing paper entitled "Outsourcing America's Technology and Knowledge Jobs," published by the Economic Policy Institute (see the organization's "Agenda for Shared Prosperity" at the Economic Policy Institute's Web site), Hira identifies three fundamental design flaws" in the H-1B program:

1. No labor market test;
2. Prevailing wage is not market wage; and,
3. Deficient oversight.

I wiil examine each of these criticisms  in turn.

Hira states that, "the labor market test flaw creates and incentive for employers to prefer foreign workers to American ones, and in some cases to actively displace American workers with H-1Bs." He is correct that neither the Immigration and Nationality Act (INA) nor the Code of Federal Regulations (CFR) requires potential H-1B employers to test the domestic labor market insuring no U.S. workers are qualified and willing to assume the proposed H-1B employment. Hira, however, does not address the glaring failures of past and present "labor market tests," nor does he propose an adequate test of his own. Prior to the 28 March 2005 enactment of the Program Electronic Management Review (PERM) labor certification program, a labor market test for available U.S. workers could be initiated as long as seven years after the initial filing of the labor certification application ( note that a labor certification application is often the first step in seeking employment-based lawful permanent residence, that is, a Green Card, and not an H-1B visa, but is referred to here as one of the only examples of a labor market test). Under PERM, the labor market test must be conducted in a 180-day window immediately preceding the filing of the labor certification application. For a "professional" position - defined as one requiring a minimum of a bachelor's degree as is the case with H-1B "Specialty Occupations" -- an employer must:

1. Place a Job Order with a State Workforce Agency (SWA) for thirty days;
2. Place two Sunday print advertisements in a newspaper of general circulation in the geographic area of proposed employment in the period 30-180 days prior to filing the labor certification application (though employers in some circumstances are permitted to substitute one advertisement in an appropriate national journal for one Sunday print ad); and,
3. Utilize at least three of the following ten other types of recruitment methods;

job fairs;

posting on the employer's Web site;

posting on a job search website;

on-campus recruiting;

trade or professional organizations;

private employment firms;

employee referral programs with incentives;

campus placement offices;

local and ethnic newspapers; and,

radio and television ads.

Under the old labor market test, an employer could be compelled to wait years to determine whether or not there were U.S. workers qualified and willing to accept the proposed employment. Under the existing system, employers obligations are both time consuming and terribly expensive.

Moreover, an 18 July  2007, Information Week article entitled "U.S. Tech Employment Hits Its Highest Point in Seven Years" indicated that that U.S. information technologies (IT) employment is up to nearly 3.6 million and that the unemployment rate for IT professionals has fallen to as little as 2 percent.

Additionally, existing labor market tests defeat the potential employment of a non-U.S. worker if even one responding U.S. candidate satisfies the minimum educational and experiential requirements for the job. That is, a U.S. employer is not at liberty to hire "the most qualified applicant." The labor market test is failed if anyone in the geographic area of proposed employment has the basic degree and experience required to perform the job.

If a labor market test is even necessary for an employer seeking  temporarily to employ an H-1B worker, clearly a better method must be put into place. If employers are to be required to determine whether U.S. workers are available for the proposed position such a determination must be made with rapidity. Delays of months or years do not allow U.S. employers to compete. Similarly, U.S. employers must be permitted to select the most qualified candidate for the position not any respondent satisfying the minimum requirements. Arguably, corporate employers have a fiduciary duty to their stockholders to recruit and retain the most qualified employees available.

Another criticism of the H-1B program is that it depresses the wages of U.S. workers, or as  Hira puts it, "prevailing wage is not market wage."

As an employer of H-1B IT professionals and, therefore, antithetical to IEEE-USA, Bill Gates is singled out for particularly serious attack - even to the extent that one could reasonably infer that  Hira believes  Gates lied to Congress.  Hira writes, "even at the 75^th percentile, new H-1B computing professionals earned just $60,000, a far cry from the impression left by Microsoft's Bill Gates that most H-1B workers are paid $100,000 or more." In support of his claim,  Hira cites Washington Post columnist David Broder, "last year (2006) ... Mr. Gates told him that H-1B jobs at Microsoft start at $1000,000 and Mr. Gates repeated the same figure during his testimony before the Senate a few weeks ago." Precisely, and contrary to the implication of lying to Congress, computer professionals at Microsoft are paid $100,000 per year.

More significantly, the Code of Federal Regulations requires that H-1B employers gain "certification" of a "Labor Condition Application" (LCA) in which the employer attests that they will pay the H-1B employee the greater of the "actual wage" (paid to the employer's other employees at the worksite with similar experience and qualifications for the specific employment) or the "prevailing wage" for the occupational classification in the area of intended employment.

Hira argues that, "[w]hile the regulations governing the prevailing wage appear to be reasonable on paper, in practice they are ineffective." As evidence for this contention, he cites instances in which Tata Consultancy Services (TCS) gained "certification" of an LCA to pay ten computer programmers $8.22 an hour and in which Infosys was "certified" to hire 100 programmers at $9.15 an hour. He continues that, "[t]hese applications (LCAs) comply with the law, illustrating that the prevailing wage regulations can easily be met without paying market wages."

This statement is not accurate. Certification of an LCA by the Department of Labor (DOL) does not mean that the "prevailing wage" listed on the LCA "complies with the law" or "meets regulatory requirements."

Hira is correct that, "[t]he (LCA) review process is completely automated, with no person reviewing applications, and the employer is not required to submit any supporting documentation."

LCAs are filed electronically with the DOL and, absent clear fraud or omission of required attestations and information, they are automatically certified. The electronic automated system replaced one in which LCAs were submitted by mail and an employer that already had waited four to six weeks for a prevailing wage determination could be required to wait an additional four to six weeks for LCA certification.

In order to comply with the law and meet the regulations, a prevailing wage must be derived from one of the following sources:

1. a collective bargaining agreement negotiated at arms-length between a union and the employer;
2. a State Workforce Agency (SWA) determination using the arithmetic mean of wages of workers similarly employed in the area of intended employment;
3. an independent authoritative source reflecting the median wage of workers similarly employed in the area of intended employment, based upon recently collected data, and representing the latest published prevailing wage finding by the independent authoritative source for the occupation in the intended area of employment; or,
4. another legitimate source of wage information reflecting the median wage of workers similarly employed in the area of intended employment, based upon the most recent and accurate information available, and that is reasonable and consistent with recognized standards and principles in producing a prevailing wage.

It is worth noting that the only Prevailing Wage Determination (PWD) that affords an employer a safe harbor providing immunity from questioning the validity of the prevailing wage is a determination made by a State Workforce Agency.

Moreover, Hira fails to mention that, while employers are not required by the regulation to submit documentation with the LCA, they are required to retain supporting documentation and provide such upon a request for public inspection or in the event of an audit or investigation. The documentation that an employer must make available for inspection to any member of the public so requesting with one working day after the LCA is filed with the DOL includes, but is not limited to:

1. a copy of the LCA and cover pages;
2. documentation of the wage rate to be paid the H-1B worker;
3. a full, clear explanation of the system that the employer used to set the "actual wage" the employer has paid or will pay workers in the occupation for which the H-1B worker is sought;
4. a copy of the documentation the employer used to establish the "prevailing wage" for the occupation for which the H-1B worker is sought; and,
5. a summary of the benefits offered to U.S. workers in the same occupational classification as H-1B workers.

Critics of automated LCA certification are correct that unscrupulous employers will knowingly falsify prevailing wage information and risk detection and prosecution and, thereby, pay H-1B workers less than a legitimate prevailing wage. These false representations, however, can hardly be said to "comply with the law" or be used as evidence that "the prevailing wage regulations can easily be met without paying market wages." Furthermore, with neither a definition of "market wages" nor a methodology for their appropriate determination, one can only guess as to whether or not properly and legally determined prevailing wages equal a market rate of pay.

Hira's final lament, and one upon which we can find much common ground, is deficient oversight.

While I do not agree with Hira's contention that, "H-1B employers are never scrutinized except in the rare case that an investigation is triggered by an H-1B whistleblower" and I am stunned by his endnote claiming that, "[a]lthough there are other ways that an investigation could be triggered, the restrictions on those events make them moot," deficient oversight is definitely a problem with the H-1B program.

The Administrator of the United States Department of Labor Wage and Hour Division of the Employment Standards Administration is responsible for investigating and determining an employer's misrepresentation or failure to comply with LCA attestations in the employment of H-1B workers. Complaints may be filed by both "aggrieved" and "non-aggrieved" parties.

An "aggrieved party" is defined as a person or entity whose operations or interests are adversely affected by the employer's alleged non-compliance with the LCA and includes, but is not limited to:

1. a worker whose job, wages, or working conditions are adversely affected by the employer's alleged non-compliance with the LCA;
2. a bargaining representative for workers whose jobs, wages, or working conditions are adversely affected by the employer's alleged non-compliance with the LCA;
3. a competitor adversely affected by the employer's alleged non-compliance with the LCA; and,
4. a government agency which has a program that is impacted by the employer's alleged non-compliance with the LCA.

In my own experience, it is the latter and not the H-1B whistleblower that is most often the source of complaints resulting in an investigation. It is either the USCIS or the Department of State upon debriefing H-1B workers whose actions initiate DOL investigation. Therefore, and notwithstanding specific regulatory protections against retaliatory actions affecting whistleblowers, nearly anyone aggrieved or otherwise can initiate a Wage and Hour investigation against an employer allegedly displacing U.S. workers or paying less than the prevailing wage.

In conclusion,  Hira suggests four specific courses of action:

1. establishing a labor market test;
2. guaranteed non-displacement of U.S. workers;
3. paying H-1B workers "market wages"; and,
4. random audits of H-1B employers.

Though we certainly do not travel the same road in reaching a similar destination, none of these suggestions is entirely outside the realm of reasonableness.

Any required labor market test, however, must facilitate extraordinary alacrity. Delays of years, months, or even weeks are unacceptable. Mechanisms must be established that enable employers to determine whether or not U.S. workers are available for the position presently. Furthermore, in the spirit of compromise and as a matter of competitive economic necessity, employers must be permitted to hire the most qualified candidate and not fail a labor market test on the basis that some, albeit minimally qualified candidate can be located.

Similarly, H-1B workers should be paid, as is already contemplated by the regulation, the same wage as their U.S. counterparts. The H-1B program should not be a means by which "cheap foreign labor" is imported. Determining the appropriate wage, however, must be done reasonably and efficiently without delay. One of the problems with SWA prevailing wage determinations is that they did not take into account sufficient variable and often resulted in wage figures that were ridiculously high given the job requirements.

Additionally, random audits of H-1B employers to insure compliance are not unreasonable if the audits if the audits are conducted in a reasonable manner. Employers that play by the rules should not be adversely affected by properly conducted audits and employers attempting to circumvent the letter and spirit of the H-1B program would fear a greater likelihood of detection and punishment.

Finally, I would go so far as to suggest the following: Title 8 Code of Federal Regulations §212(h)(1)(F) should be revoked. This regulatory provision allows "agents" to act as H-1B petitioners. According to Hira, these firms represent the top 11 and 15 of the top 20 H-1B requestors. These "agents," in turn, place the H-1B workers at various job sites with various surrogate employers whom are not bound by any LCA attestations. The abolition of "agents" as H-1B employer/petitioners would greatly facilitate LCA enforcement and compliance. It does not seem unreasonable that an H-1B employee actually render services on behalf of the H-1B petitioning employer and not some third party.

David Palinsky, an attorney, specializes in cases involving employment-based immigration. In particular, Palinsky specializes in immigrant (permanent) and nonimmigrant (temporary) visas for the homeland security, hi-tech, and services sectors. You may contact Palinsky directly at dpalinsky@...; for general information, please e-mail a description of your situation to info@....

The Financial Times

By Vanessa Houlder and David Turner

Published: February 21 2008 02:00 | Last updated: February 21 2008 02:00
http://www.ft.com/cms/s/0/54a6177e-e03d-11dc-b0d7-0000779fd2ac.html?nclick_check=1

www.ft.com/non-doms

Migration: Facts not fears

Editorial: The Guardian

Thursday February 21 2008

http://www.guardian.co.uk/commentisfree/2008/feb/21/immigrationpolicy.immigration