By Eleanor Pelta, AILA First Vice President

• Hira’s clear implication is that companies that don’t sponsor H-1B’s and L’s for PERM are using these workers instead of more expensive American labor.  He ignores that fact the H-1B program has rules in place requiring payment of the prevailing wage to these workers. But even worse, he has not presented any data whatsoever on the average wages paid to these workers. He also doesn’t address the expense of obtaining such visas. He simply concludes that because they are here temporarily, they are underpaid.

• Hira makes the argument that companies who use H-1B and L workers as temporary workers generally use their U.S. operations as a training ground for these workers and then send then back to their home countries to do the job that was once located here.  Again, this assertion is not supported by any real statistical data about, or serious review of, the U.S. activities of such workers, but rather by anecdotal evidence and quotes from news stories taken out of context.

• With respect to the fact that the L-1B visa requires specialized knowledge and so would normally preclude entry to the U.S. for the purpose of gaining training, Hira cites and outdated OIG report that alleges that adjudicators will approve any L-1B petition, because the standards are so broad. Those of use in the field struggling with the 10 page RFE’s typically issued automatically on any specialized knowledge petition would certainly beg to differ with that point.

• Hira clearly implies that American jobs are lost because of H-1B and L “guest workers,” but has no direct statistical evidence of such job loss. 

Hira does make that last point, and it is just about the only one we agree on.  Congress needs to create a streamlined way for employers to access and retain in the U.S. foreign expertise and talent, without at 10-15 year wait for permanent residence. But our economy still needs the ability for business to nimbly move talent to the U.S. on a temporary basis when needed, or to rotate key personnel internationally.  In a world where global mobility means increased competitiveness,  Hira’s “statistics” simply don’t support elimination of these crucial capability.

By Eleanor Pelta, AILA First Vice President

Our labor certification system requires a U.S. employer to undertake an individualized test of the local labor market for availability of qualified U.S. workers for a particular position before offering the position to a foreign national candidate. This common first step in the green card process for employer-sponsored immigrants has been around since the days when putative immigrants waited abroad for the completion of the entire process before entering the U.S. (which, at that time, didn’t take ten years or more.) The architecture of the system may have made sense back then; it doesn’t now.

The Department of Labor views the labor certification system, now known as “PERM,” as a process through which it can implement its mission to protect U.S. workers. While it is clear that this is one of DOL’s central responsibilities, I view the PERM process as more than this. DOL must protect the wages and working conditions of U.S. workers and ensure that they are treated fairly and that opportunities for employment for such workers are maximized. DOL must also enable U.S. employers to access skills and talents that are not present in the U.S. labor market. U.S. employers are users or, if you will, customers of the system. Our economy benefits by DOL’s ability to nimbly and effectively walk the line between safeguarding the U.S. labor market and recognizing the legitimate needs of U.S. employers for talent to help them grow and adapt. Unfortunately, the current PERM system accomplishes neither goal.

Due in equal part to the very persnickety PERM regulations and undue processing delays, the PERM labor market system has become a game of “Gotcha” for employers. They are expected to undertake a complex and expensive recruitment campaign which is completely divorced from the way employers recruit in the “real world” (newspaper ads? paper postings?) Any ministerial error in the completion of the PERM attestation form –even one that bears no relationship to the recruitment for U.S. workers that the employer actually undertook–can be a basis for denial. Did the employer fail to put its name or the job location in its internal posting? Gotcha! Denied, even though the internal posting is done at the job site itself. Was there an error on the dates of advertising on the PERM form? Gotcha! Denied, even though the employer might have provided, on audit, proof of the correct dates.

There are also additional “rules” that seem to emerge through DOL adjudication and FAQ’s, a veritable field of land-mines for the unwitting employer. There is general confusion as to how to describe alternate job requirements on the PERM form, and employers are legitimately concerned about this, given that the wrong word formulation can lead to a denial. Gotcha! There has been a spate of recent PERM denials based on a surprising new policy decision by DOL, that employers may not use wage ranges that begin with the prevailing wage at the lower end and include the offered wage, a clear but unannounced departure from prior practice. Gotcha! An AILA member recently reported a PERM denial because the foreign national did not currently work for the employer. Gotcha! There has never been a requirement that the foreign national currently work for the sponsoring employer, but DOL seems to be taking a new tack here as well.

Apart from the inherent problems with the inflexibility of the system, its inability to allow employers to correct errors and provide explanations, and the lack of adjudicatory predictability, these denials –which have nothing to do with the essential question of whether the employer conducted a fair and valid recruitment campaign –become extremely problematic for employers because they arrive after 9 months of adjudication time—or much longer if the case is denied after an audit. While the denials state that the employer is free to re-file rather than appeal the decision, a denial after such a lengthy adjudication time puts the employer in the position of choosing between a lengthy appeals process (2 years or more) with an unpredictable outcome and the burden and expense of a new PERM, including a new recruitment campaign, as the original ads will certainly be stale. DOL’s statement encouraging employers to refile would be more welcome and less laughable if PERMs were adjudicated within several weeks, rather than several months, so that employers could correct errors without having to re-advertise.

Clearly, PERM has become a ponderous, lengthy and unduly complicated process. It is difficult to see how PERM’s twists and turns help a U.S. job seeker. Clearly a determination after months or years as to whether an employer followed the PERM regs to a “T” does little, if anything, to protect the wages and working conditions of U.S. workers. To the contrary, it may impede the retention of key talent that could ultimately pave the way for additional job growth and opportunity. Moreover, PERM is costly and employer-unfriendly.

DOL could fix the PERM process in many ways to make it more sensible for employers and fair for U.S. workers. After all, the entire architecture of PERM—the concept of employers doing individualized, highly structured labor market tests for each job opportunity—is a DOL creation — the details we are dealing with are not mandated by statute. The statute from which PERM is derived is literally one short section in the INA that states that a foreign national seeking to enter the U.S. permanently to work in a skilled or unskilled occupation is inadmissible unless the Secretary of Labor determines that there are insufficient U.S. workers for the opportunity and the employment of the foreign national won’t adversely affect the wages and working conditions of U.S. workers. Think about how many different systems might be set up to accomplish this goa1! For example, DOL could look at the real-world recruitment that was done prior to the initial hiring of the foreign national (remember RIR?), and, if the recruitment is satisfactory, exempt the employer from any further recruitment.

However, DOL won’t fix the system, because it has too much money and effort invested in the current process. We desperately need a system that works in both good economic times and tough ones—a system that is both respectful of employers needs and protective of U.S. workers. That means that it is up to Congress to take a look at labor certification and see if there is a better way to accomplish these goals.

In October 2009, I wrote a blog talking about the disastrously long waiting lines for legal immigration to the United States. In Get In The Line? What Line? The Tragic Tale of Employment Based Immigrant Visa Delays, I stated that:

This delay in legal, employment based immigration is a crisis for America. If you are an intending immigrant, and your immigration option is employment based, do you have the patience the wait 15 years for your green card? Can you do better in Australia, Canada, or even back home in our home country? What is the cost to our future competitiveness of a broken legal immigration system? What is the cost to U.S. innovation?

The Department of State just released its annual numbers for cases received by the National Visa Center, awaiting issuance of an immigrant visa at a consulate. The report says this:

The following figures have been compiled from the NVC report submitted to the Department on November 3, 2009, and show the number of immigrant visa applicants on the waiting list in the various preferences and subcategories subject to numerical limit. All figures reflect persons registered under each respective numerical limitation, i.e., the totals represent not only principal applicants or petition beneficiaries, but their spouses and children entitled to derivative status under INA 203(d) as well.

Okay, the bottom line numbers? Bad, very bad. The total Family Numbers waiting for a priority date: 3,369,455, including 1,727,897 in the Brother and Sister (FB-4) category. At the 65,000 annual number level for that category, that is a 26.5 year wait (ignoring per country limits). The total Employment Numbers awaiting a priority date: 130,509, including 119,759 in the EB-3 category. This is at least a 3-4 year wait (again, ignoring per country limits). So, 3.5 million people waiting in line, or is it? The reality is worse. These do NOT include the those cases pending at USCIS!

If we ad in the numbers pending at USCIS (as best we know them), the situation is far more grave. Family based petitions pending at USCIS in June 2009 (no new numbers are easily available), were 1.1 million, bring the total backlog to 4,400,000 for family cases. Employment based cases pending at USCIS in June 2009 numbered 80,000. This bring the total up to 210,000 for EB-3 cases. Wow!

It gets worse though when you realize this simple fact. The numbers from the National Visa Center do not include cases for folks NOT consular processing. Frankly, and just just like in October when I first wrote about this, we do not really know exactly how many cases are pending immigrant visa availability. What we do know is that the legal immigration system is broken.

When we hear politicians and uninformed folks yelling about illegal immigration and telling folks to wait in line like everyone else, the answer is, What Line?

These numbers once again poignantly express the dilemma that legal immigrants have. Many feel, justifiably, that any immigration reform must FIRST focus on legal immigration reform, cutting down wait times to reasonable periods, BEFORE anyone who entered into or remained in the U.S. without permission is given ANY legal benefits. The answers are simple here, the question is, are there any politicians with enough courage to vote for real legal immigration reform?

By Eleanor Pelta, AILA First Vice President

H-1B workers certainly seem to be under fire these days on many fronts. A new memo issued by USCIS on the employer-employee relationship imposes new extra-regulatory regulations on the types of activities in which H-1B workers can engage as well as the types of enterprises that can petition for H-1B workers. The memo targets the consulting industry directly, deftly slips in a new concept that seems to prohibit H-1B petitions for employer-owners of businesses, and will surely constitute an open invitation to the Service Centers to hit H-1B petitioners with a new slew of kitchen-sink RFE’s. On another front, USCIS continues to make unannounced H-1B site visits, often repeatedly to the same employer. Apart from the “in-terrorem” impact of such visits, I personally cannot see the utility of three different visits to the same employer, particularly after the first one or two visits show that the employer is fully compliant.

But USCIS isn’t the only agency that is rigorously targeting H-1B’s. An AILA member recently reported that CBP pulled newly-arrived Indian nationals holding H-1B visas out of an immigration inspection line and reportedly placed them in Expedited Removal. The legal basis of those actions is still unclear.

Finally, recent H-1B “skirmishes” include various U.S. consular posts in India issuing “pink letters” that are, simply put, consular “RFE’s” appearing to question the bona fides of the H-1B and requesting information on a host of truly repetitive and/or irrelevant topics. Much of the information that is routinely requested on a pink letter is already in the copy of the H-1B visa petition. Some of the letters request payroll information for all employees of the sponsoring company, a ridiculous request in most instances, particularly for major multi-national companies. One of the most frustrating actions we are seeing from consular officers in this context is the checking off or highlighting of every single category of additional information on the form letter, whether directly applicable or not, in effect a “paper wall” that must be overcome before an applicant can have the H-1B visa issued. Very discouraging to both employer and employee.

How have we come to a point in time where the H-1B category in and of itself is so disdained and mistrusted? Of course I’m aware that instances of fraud have cast this category in a bad light. But I think that vehemence of the administrative attack on the H-1B category is so disproportionate to the actual statistics about fraud. And interestingly, the disproportionate heavy-handed administrative reaction comes not from the agency specifically tasked with H-1B enforcement—the Department of Labor—but from CIS, CBP and State. Sometimes I just have to shake my head and ask myself what makes people so darn angry about a visa category that, at bottom, is designed to bring in relatively tiny number of really smart people to work in U.S. businesses of any size. It has to be a reaction against something else.

Yes, a great number of IT consultants come to the US on H-1B’s. It is important to remember that so many of these individuals are extremely well-educated, capable people, working in an industry in which there are a large number of high profile players. And arguably, the high profile consulting companies have the most at stake if they do not focus on compliance, as they are the easiest enforcement target and they need their business model to work in the U.S. in order to survive. Some people may not like the business model, although arguably IT consulting companies provide needed services that allow US businesses, such as banks and insurance companies to focus on their own core strengths. Like it or not, though, this business model is perfectly legal under current law, and the agencies that enforce our immigration laws have no business trying to eviscerate it by policy or a pattern of discretionary actions.

It is true that some IT consulting companies’ practices have been the focus of fraud investigations. But DOL has stringent rules in place to deal with the bad guys. Benching H-1B workers without pay, paying below the prevailing wage, sending H-1B workers on long-term assignments to a site not covered by an LCA—these are the practices we most often hear about, and every single one of these is a violation of an existing regulation that could be enforced by the Department of Labor. When an employer violates wage and hour rules, DOL investigates the practices and enforces the regulations against that employer. But no one shuts down an entire industry as a result.

And the IT consulting industry is not the only user of the H-1B visa. Let’s not forget how many other critical fields use H-1B workers. In my own career alone, I have seen H-1B petitions for nanoscientists, ornithologists, CEO’s of significant not for profit organizations, teachers, applied mathematicians, risk analysts, professionals involved in pharmaceutical research and development, automotive designers, international legal experts, film editors, microimaging engineers. H-1B’s are valuable to small and large businesses alike, arguably even more to that emerging business that needs one key expert to develop a new product or service and get the business off the ground.

The assault on H-1B’s is not only offensive, it’s dangerous. Here’s why:

• H-1B’s create jobs—statistics show that 5 jobs are created in the U.S. for every H-1B worker hired. An administrative clamp-down in the program will hinder this job creation. And think about the valuable sharing of skills and expertise between H-1B workers and U.S. workers—this is lost when companies are discouraged from using the program.
• The anti-H-1B assault dissuades large businesses from conducting research and development in the US, and encourages the relocation of those facilities in jurisdictions that are friendlier to foreign professionals.
• The anti-H-1B assault chills the formation of small businesses in the US, particularly in emerging technologies. This will most certainly be one of the long-term results of USCIS’ most recent memo.
• The attack on H-1B’s offends our friends and allies in the world. An example: Earlier this year India –one of the U.S.’s closest allies –announced new visa restrictions on foreign nationals working there. Surely the treatment of Indian national H-1B workers at the hands of our agencies involved in the immigration process would not have escaped the attention of the Indian government as they issued their own restrictions.
• The increasing challenges in the H-1B program may have the effect of encouraging foreign students who were educated in the U.S. to seek permanent positions elsewhere.

Whatever the cause of the visceral reaction against H-1B workers might be—whether it stems from a fear that fraud will become more widespread or whether it is simply a broader reaction against foreign workers that often raises its head during any down economy –I sincerely hope that the agencies are able to gain some perspective on the program that allows them to treat legitimate H-1B employers and employees with the respect they deserve and to effectively enforce against those who are non-compliant, rather than casting a wide net and treating all H-1B users as abusers.