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Employers who seek labor certification to employ foreign workers must prove that they have not found suitable US workers who are qualified, willing, able and/or available. Somewhere in the cosmos, there must be somebody, but US workers are not extraterrestrials to be found somewhere in the far reaches of outer space.
It’s not rocket science, either. The law has devised a down-to-earth method to search using familiar forms of advertising. For most jobs, workers may be found through the state workforce agencies, which maintain databanks of local workers who may be looking for the exact job offered by an employer, ads placed in two Sunday newspapers, and notices posted at the employer’s place of business or through in-house media. For professional positions (defined by a list of occupations maintained by the Department of Labor), three additional forms of recruitment are necessary.
When workers appear on the horizon, they must file applications according to the instructions of the employer. This may be by sending resumes by mail, email or fax, or even by applying electronically at the employer’s website.
Difficulties arise about how to differentiate between job referrals and job applicants. Referrals are persons whose names may be matched on state job service sites, or whose names may appear on lists of potentially available workers, while applicants are persons who step forward to apply for job opportunities in response to advertisements with instructions provided by employers.
In the PERM program, workers may be referred to employers whether they are authorized to work or not. This arises from the fact that verification of work authorization is not necessarily included in the dossiers of the State Workforce Agencies or other sources of recruitment.
A government program known is E-Verify, intended to maintain work authorization status for everyone in the United States, is controversial because it does not meet the stated objective to provide safe, reliable information about all job applicants. E-Verify is available in some, but not all, states, but even in those states where it is in place, workers are only E-verified if they appear personally at the agency. Those who apply on-line are not verified at all.
Even if workers are verified according to E-Verify, they may not meet the definition of U.S. workers as defined in the PERM labor certification program. Since PERM is a program to find permanent, full-time employees, U.S. workers are limited to persons with permanent, full-time work authorization. Specifically, these can only be American citizens, permanent resident aliens, US Nationals, Asylees, Refugees, and certain foreigners who may have qualified for amnesty under the Immigration Reform and Control Act of 1986.
Employers are usually reticent to ask workers directly if they have permanent employment authorization, because under E-Verify and employer-based verification using Form I-9, employers cannot discriminate against workers who have temporary and permanent work authorization. The same agency that requires detailed verification of each worker also prohibits misuse of the system to prejudice individuals because of race, religion, national origin and so forth.
The Department of Labor often denies PERM applications after issuing a determination that the employer failed to explain why the U.S. workers who applied were lawfully rejected. The denials are fair in those instances when the workers were indeed U.S. workers as defined in the PERM Rule, but not fair when the workers were persons with temporary work visas or even with no work authorization at all.
Little attention has been given to this discrepancy in the PERM Rule. Large employers often use other techniques to ferret out persons who are not defined by PERM as U.S. workers. One method is to place special language in the advertisement about whether job applicants need sponsorship. This only identifies persons who answer affirmatively because they would like the employer to sponsor them for permanent residency status and, therefore, to work full-time and permanently in the U.S.
According to USCIS policy, employers fear asking workers to prove their work authorized status, whether temporary or permanent, until after they have been hired and have reported to work. This sometimes lead to the embarrassing situation that workers must be terminated during the first day of employment when it is discovered that they are not properly documented.
The work authorization verification program was created in 1986. Prior to that time, anyone could work as a natural right, including persons in unlawful status. In recent years, however, the issue of documentation and the right to work has commanded front page attention. In a nation of immigrants, the country struggles to determine which persons should be permitted to remain and which persons should be removed to the place from whence they came – even as local labor shortages exist in many sectors of the economy and in every part of the country.
Via immigration lawyer Bryan Johnson:
Immigration Arrests of noncriminals dropped by 13% under the Trump administration, compared with the overall percentage of noncriminals arrested from 2009 to 2016 under the Obama administration, according to statistics provided to the Washington Post as well and the Senate Judiciary Committee:
Mr. Johnson explains that:
Arrests of noncriminals this year are much, much lower than the peak enforcement years of the Obama administration.
As a matter of percentage, under Trump, ICE arrests of noncriminals account for 25.47% of of total arrests. (5441 out of 21,362)
In the year of 2014 in the same time period, under Obama, ICE arrests of noncriminals accounted for slightly less than .1% more, at 25.6% of total arrests (7,482 out of 29,328).
Click here to read his entire analysis.
An April 19 article in The Hill by David W. Kreutzer, an analyst with the Heritage Foundation, justly criticizes the annual H-1B lottery as being completely ineffective for the goal of attracting the most talented foreign workers to America. No one can argue with him, but he has the wrong solution, which is to auction off H-1B visas to the employers who are willing to pay the highest salaries to the workers they are sponsoring for this visa.
"An auction would have at least two advantages. First, it would allow businesses that have the hardest time finding existing residents to fill their jobs to move to the front of the line. If the foreign employee they have identified is really that critical, they will be wiling to pay more than a firm that only seeks to get a more generic employee on the cheap. Second, it provides a measure of how much value an additional high-skilled worker is worth."
This suggestion also echoes Donald Trump's April 18 speech at the signing of his H-1B executive order stating that H-1B visas should be limited to skilled foreign workers with the highest salaries, instead of being available to those who are being paid the prevailing wages for US workers, as under current law.
The obvious problem with Kreutzer's suggestion, however, is that it would in effect limit this visa to employees of the largest companies which can afford to pay salaries at the very top of the wage scale, such as their highest ranking managers and executives. H-1B, therefore, would be turned into another version of the L-1 visa.
However, startups or even well-established smaller companies which are able to pay prevailing wages, i.e. wages equal to those being paid to American workers, to their foreign employees, as required by the current H-1B law, but cannot afford to pay salaries at the very top of the wage scale, would lose out under this proposal.
Foreign workers who have high-level skills but who are being hired for entry-level or less experienced level jobs, such as recent college graduates who are beginning their careers, or who are in an early stage in their careers, would also be frozen out under this suggestion.
It would, essentially, be a poison pill leading to the end of the end of the H-1B program as we know it - one more weapon in the restrictionist arsenal of the officials and opinion leaders inside and outside the Trump administration who would like to take America back in the direction of the northern Europeans only Immigration Act of 1924 which Trump and some of his top advisers have, directly or indirectly, praised as a model for America nearly 100 years later.
Clearly, however, Kreutzer does not agree with this restrictionist goal. He also writes:
"Saying that all immigration kills jobs for those who are already here simply does not comport with America's history. The market for skills and abilities is international. It is foolish to think that we cannot benefit from bringing the most creative and ambitious people to the United States."
But how to select H-1B foreign workers in a way that will really benefit America, in keeping with our history and traditions as a nation of immigrants? Certainly, not by the annual charade and farce of an H-1B lottery.
"It is even more foolish to think that we can identify the most creative and ambitious by flipping coins."
Nothing could be more true. What is the only fair and rational solution then? Certainly it is not to impose further restrictions on to abolish H-1B visas, as has been suggested by Jeff Sessions and other politicians who are not otherise known for supporting minimum wage laws, labor unions, health insurance or other measures that would raise wages and living standards of American workers in general, but who only seem to care about American working people as a means to keep out immigrants.
The obvious solution is to increase the number of H-1B visas in order to meet the demand. Unfortunately the chances of this happening in what Sessions has called the "Trump era" of restricted immigration and mass deportation are virtually nil.
Kreutzer's full article can be found at
Roger Algase is a New York immigration lawyer and a graduate of Harvard College and Harvard Law School. He has been helping H-1B and other mainly skilled and professional immigrants receive work visas and green cards for more than 35 years. Roger's email address is email@example.com
Updated 04-19-2017 at 08:49 AM by ImmigrationLawBlogs