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Grassley's Attack On Employment Visas Goes Far Beyond H-1B - Pt 2. By Roger Algase

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In Part 1 of this 3-part series, I took a close look at Senate Judiciary Committee Chairman Charles Grassley's (R-Iowa) prepared statement in connection with the March 17 hearings of his committee entitled: "Immigration Reforms Needed to Protect Skilled American Workers" to see if his criticisms of the H-1B program met any reasonable test of consistency, logic or common sense, and whether his claimed interest in "reforming" this program to protect American workers was consistent with his pro-off-shoring, anti-minimum wage and anti-union voting record.

On the basis of that analysis, as I mentioned in my post, there does not appear to be any record of support for the rights of American workers by Senator Grassley outside of the context of trying to bar well educated, highly skilled Indian, Chinese (who make up a large part of the H-1B visa population) and other foreign workers from America's shores, or to send those who are already here back to their own or some other countries where they can use their talents to compete against America.

Nor is Senator Grassley's opposition to visas for skilled foreign workers limited to H-1B, as shown by his following comments about the L-1 intra-company transferee visa:

"Unlike the H-1B program, there is no cap on the number of L-1 visas that may be issued each year and there is no requirement to pay L-1 workers the locally prevailing wage or eve the actual wage being paid to similarly qualified employees.

The problems with the L-1 visa are not as apparent, especially since the USCIS quashed an internal report that highlighted fraud and abuse. The agency seemingly didn't want another black eye as they had [sic] with the H-1B program."

The Senator continues:

"Nevertheless, there are problems. In August 2013 the DHS Office of the Inspector General , at my request, examined the potential for fraud and abuse in the L-1 program, in particular the adjudication of "specialized knowledge" petitions and petitions being opened for "new offices" by L-1[A] transferees."

With regard to specialized knowledge, the Senator warns that a "liberal definition" of this term could, in theory, result in a "limitless" number of petitions being approved. Once again, Senator Grassley is raising the specter of immeasurable hordes of immigrants inundating the United States - the classic fear-mongering ploy of the anti-immigrant movement, especially in conservative, mainly white states and congressional districts.

Yet, Grassley says earlier in the same statement that in fiscal year 2013, the total number of L-1 petitions approved amounted to exactly 11,944. Whether this amounts to a takeover of the workforce by unlimited hordes of foreign workers in a nation of 300 million people is open to serious question.

One might add that, as anyone who has ever filed an L-1B specialized knowledge petition with the USCIS California Service Center can attest, a "liberal definition" of "specialized knowledge" is, at least at present, far from the reality. Moreover, this deals with the question of what levels of legal skilled immigration are appropriate for America. It has nothing to to with Grassley's totally unsubstantiated claim of "fraud and abuse" in the L-1 program.

Turning to L-1A new office petitions, Grassley quotes the OIG as saying that they are "inherently susceptible to abuse because much of the information in the initial petition is forward-looking and speculative". Of course, the very nature of a new office is that its future activities can only be estimated and projected. For this reason, this type of visa is limited to one year, though Senator Grassley does not mention this.

It is not the concept of a new office that is speculative. It is Grassley's accusation, without providing any supporting evidence, that this visa is subject to fraud and abuse that is speculative.

To be fair, Grassley also cites an instance in which a company by the name of Electronics for Imaging allegedly paid a group of Indian L-1 workers only $1.12 per hour for an 120-hour week! Grassley claims that this did not violate the terms of the L-1 visa (though it would seem highly unlikely that this petition could have been approved if USCIS had known about this in advance), but he is forced to acknowledge that the US Department of Labor did have a tool for dealing with this abuse, namely the Fair Labor Standards Act.

One might also ask the Senator whether this incident might make him wish to rethink his opposition to raising the federal minimum wage.

L-1 is not Senator Grassley's only other target besides H-1B. After taking a shot at B-1 in lieu of H-1B, he zeros in on the F-1 optional practical training program, which he associates with "potential fraud" as well as (of course) "threat to national security", without giving any examples or specifics. (Yes, we know that some of the 9/11 hijackers nearly 14 years ago had valid student visas. I do not recall that any of them had OPT status).

There is only one area in which the Senator appears to have a valid point regarding F-1 OPT. He refers to an IBM help wanted ad making OPT status specifically, not just legal work permission in general, a requirement for the offered job. Presumably this was to take advantage of the fact that OPT does not have a prevailing wage or even a requirement that the F-1 worker be paid at all.

According to the Senator, this ad, which was admittedly a form of blatant discrimination against US workers, resulted in $44,400 in civil penalties against IBM in a settlement with the Department of Justice. $44 million might have been more appropriate.

Still, one horrible example alone is no reason scuttle the entire OPT program, which would mean sending F-1 students home as soon as they graduate with their hard-earned, expensive degrees from American universities which have invested so much money, resources and efforts in educating them.

What emerges from Senator Grassley's statement is that he certainly does not like foreign workers. His suggested remedies to what he sees as the flaws in the employment based visa system, and the inadequate Democratic response to his efforts to gut this system, will be discussed in Part 3 of this series.

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Updated 03-22-2015 at 12:11 PM by ImmigrationLawBlogs

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