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Greg Siskind on Immigration Law and Policy

HOW ABOUT ENFORCING LAWS ON THE BOOKS BEFORE ADDING NEW ONES

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There were a number of provisions in the recently defeated Senate bill which were hardly good news for those in favor of immigration policies designed to make the US more competitive. Many had to do with curbing real and perceived abuses in the H-1B program. But before adding onerous new restrictions on to the H-1B program, how about doing a better job enforcing the numerous restrictions already on the books?



One of the biggest complaints about the H-1B visa is the perceived underpaying of the workers holding that status. While I generally think such claims are overstated, to the extent abuses exist, I remind critics that there are laws on the books barring employers from underpaying workers. Those laws have not been rigorously enforced and they should be in before moving to push through new requirements.  If the imposing of a $2.4 million fine against an Indian-owned IT company is an indicator, maybe the Labor Department is getting serious in enforcing prevailing wage rules (though I am not in a position to comment on the facts of this case).



Recently, the Department of Labor imposed new onerous rules in reaction to fraud in the labor certification program. Those rules include barring substitution of aliens, time limits on filing I-140s after labor certifications have been approved and barring workers from paying lawyer fees (as opposed to employers). But these are all things that are all done legitimately in the vast majority of cases. Has the Labor Department done everything it can to prosecute those committing fraud? Hardly. Maybe issuing new regulations will make it seem like the agency is doing something to combat fraud in the labor certification program, but the one thing it needs to be doing is actually enforcing existing laws against fraud.



The same goes for USCIS which has responded to fraud in the religious worker program with a whole host of new proposed regulations. But where are all the prosecutions of fraud if the problems are so serious. I'm not saying that fraud is non-existent. But there are criminal laws that exist and are not used to combat fraud.

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  1. R. Lawson's Avatar
    I hope they do enforce current laws - perhaps it would give the DOL and the H-1b program some credibility.

    However, let's be honest here. The DOL has to by law rubber stamp the LCA applications. They cannot examine the documents for anything other than ommissions. Plus they have a limited amount of time (a week or so) to approve or deny the LCA. At least that is what the DOL tells us and the GAO - "we are powerless". We have reported fraud reported to us - and there is ALWAYS some reason why they can't investigate.

    We all know that the average LCA pays less than prevailing wage (as defined by the market) and most are approved at Level-1: entry level wages. We now know that the top getters of H-1b visas are also offshoring firms - mostly from India and some from the USA.

    Given that the visa is used primarily in the IT field and primarily by offshore outsourcing firms, simply enforcing the law is not good enough. We need stronger labor protections.

    Greg argues that by limiting the cap, legitimate users of the H-1b (say medical doctors and scientists with rare experience) cannot get a visa. I agree, but the fix isn't to raise the cap and expose IT workers to even more problems. The fix is to show a preference to the highest educated and the highest skilled.

    The program should be turned around. Instead of the majority of H-1b visas going to Level-1 (entry level) workers the majority should go to Level-4 (highly experienced) workers. Until the program shows preference to the best and brightest and the highest paid, it is nothing more than a labor subsidy. The arguments in favor of the H-1b are rendered obsolete.

    I would be willing to ask Congress to drop the exorbinate fees proposed (in CIR) if the business groups ask for more labor protections and a more qualified method of approving H-1b visas. Plus, have measures to prevent the visa to be used in offshore outsourcing.

    Until companies start acknowledging that there are cases of unfairness and come up with smarter ways (besides no cap) to attract the best and brightest, they lack credibility on this issue.

    Greg, if you look at the top sponsors of H-1b visas which is now (finally) public record - clearly they are Indian outsourcing firms and some American outsourcing firms also engaged heavily in offshoring. How can anyone support this?

    I am glad you are now acknowledging that there is a problem even if we don't agree on how bad it is.
  2. R. Lawson's Avatar
    Interesting article by the Indian press released this week - on H-1b visa fraud: http://inhome.rediff.com/money/2007/jul/04visa.htm

    They didn't need to look very far to find H-1b fraud. It appears to be a lucrative business - also involving American lawyers according to the article. No American firms or individuals were specifically named in the article.

    Here is a video the article was based on, however I can't get the audio to work: http://www.moneycontrol.com/india/video/stockmarket/11/58/newsvideo/289460
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