AFL-CIO Takes Bold Stand against H-1B and L-Visa Programs

Date: Friday, August 15, 2003 2:41 PM

JOB DESTRUCTION NEWSLETTER

www.ZaZona.com

Hopefull the AFL-CIO endorsement of the DeLauro bill to reform the L-1
visa will give it a boost in Congress.

http://www.techsunite.org/news/tech/030815_aflcio.cfm

August 15, 2003

sf AFL-CIO blasts employer abuses of tech visa programs
Press Associates Union News Service

By Mark Gruenberg
PAI Staff Writer

CHICAGO (PAI) -- Calling employer abuse of federal visa programs for
foreign workers "intolerable," the AFL-CIO is demanding that Congress
reform the programs and increase federal regulation of companies that
use them.

The resolution, approved at the Executive Council meeting in Chicago on
August 5, focuses on two visas, H-1B and L-1, that employers use to
import more than 1 million so-called "guest workers" into the U.S. each
year.

The AFL-CIO's Department of Professional Employees, the Communications
Workers and one CWA local, Seattle-based WashTech, have been
particularly active on the issue. The International Federation of
Professional and Technical Engineers have also been lobbying on it.

"Employers, especially in high tech, are abusing temporary visa
programs to allow hundreds of thousands of guest workers with no rights
and no job security to take job opportunities in the U.S.," the AFL-CIO
said.

That occurs even as their U.S. counterparts in high-tech firms "are
unemployed and even being laid off."

The unions point out that firms such as IBM bring the foreign workers
in, or plan to do so. They have U.S. workers train them for managerial
or administrative jobs over years, and then return the foreign workers
to their home countries, taking the U.S. jobs with them, and firing
U.S. workers.

Other white-collar jobs are lost by export of call center and other
positions overseas, WashTech, CWA and the AFL-CIO said. For example,
Delta Airlines' reservation center is now in Manila.

"These programs were designed not to be legalization of the guest
workers, but as a stopgap, with the clear understanding that the
(foreign) workers would go home," says Paul Almeida, Department of
Professional Employees president.

"But now those workers are being abused and oppressed by specific
employers. They're economic prisoners," he adds.

The federation's resolution demands Congress reform the two programs to
halt the abuses and curb the number of "guest workers" imported for the
administrative and managerial jobs.

Almeida said he pushed the resolution through the council after first
educating several union presidents that this was not an immigrants'
rights issue. He said Congress may take up the issue in October. "We're
going to monitor it and we'll be quick to mobilize the affiliates if
there's any movement," he adds.

The federation's resolution set several objectives for revising the two
visa programs. They include:

Limiting H-1B visas to one non-renewable 3-year term.

"Explicit prohibitions" on using H-1B workers to replace U.S. workers
and provisions "to tie the entry of H-1Bs to U.S. labor market
conditions to minimize the impact on professional workers."

"Real safeguards" forcing employers to seek qualified U.S. workers for
posts before importing H-1Bs, and legal requirements that employers pay
any H-1Bs the prevailing wages in those jobs.

Limiting H-1B applications to the original company that wants the
workers. The AFL-CIO also wants provisions that H-1B workers laid off
by the firm that hired them must return to their home countries within
90 days.

And it wants to ban firms from laying off H-1B workers who assert their
rights, including the right to organize.

"The current system encourages H-1B workers to keep quiet or look for
another job rather than file complaints about exploita-tion," the
AFL-CIO said. Victimized H-1B workers should get whistleblower
protection and the government should have the power to do random audits
of companies that import H-1B workers.

To end the abuses of the L-1 workers, the federation backs legislation
by Reps. Rosa DeLauro (D-Conn.) and Christopher Shays (R-Conn.). It
erects specific standards for firms to follow when they import those
workers for managerial or administrative jobs.

The bill includes a prevailing wage requirement, a shorter L-1 visa
period--it's now at least five years--and limits on the number of
workers. It also would ban their use to displace U.S. workers, and
would increase sanctions against lawbreakers.

"L-1s are being used to replace U.S. workers, who are often forced to
train L-1 replacements before they themselves are laid off. Nothing in
current law prevents this," the AFL-CIO said.

And "foreign-owned replacement firms--also known as 'body shops'--are
bringing in thousands of L-1 workers and then contracting them out to
other employers," it adds.

http://www.washtech.org/wt/news/legislative/display.php?ID_Content=4600

August 6, 2003

AFL-CIO: Reform H-1B and L-Visa Programs
AFL-CIO

By the Executive Council of the AFL-CIO

In the current recession unlike previous economic downturns a growing
number of well-educated and highly skilled U.S. professional and
technical workers have found themselves in the long lines of the
unemployed. They and their families have not only been battered by the
economic trauma of being out of work, but increasingly they are finding
themselves victimized by dysfunctional U.S. guest worker policies. For
many particularly workers in high tech these policies have made a bad
situation much worse.

Under current law, employers, especially in high tech, are abusing
temporary visa programs to allow hundreds of thousands of guest workers
with no rights and no job security to take job opportunities in the
United States, when workers in this country are unemployed and even
being laid off. There are now more than a million of these workers in
the United States under the two largest guest worker programs, H-1B and
L-1. Yet neither of these programs connects in any way to the realities
of the U.S. labor market and our rising unemployment rate.

Worse, both programs are rife with fraud and abuse and are being used
by unscrupulous corporations to displace Americas workers and
exploit guest workers. Under these programs, guest workers must depend
on their employers not only for a job, but also for their legal status.
Employers also have the power to renew guest worker visas at their
pleasure. This creates an unequal relationship inherently subject to
abuse, in which employers have the upper hand to intimidate guest
workers who seek better wages and working conditions, seek to join a
union or complain of discrimination. Employers can retaliate by
threatening to end these guest workers employment and thus their
visas, or by threatening to deny the renewal of visas in the future.

This year, Congress must take action to clean up the problems that
plague these programs by implementing urgently needed reforms.

The H-1B Temporary Guest Worker Program

In effect since 1990, the H-1B program originally was designed to
permit a modest number of professional and technical guest workers into
the United States each year to alleviate spot shortages in our labor
market. However, in 1998 and again in 2000 despite AFL-CIO opposition
Congress drastically expanded the program, even as widespread reports
of exploitation and abuse of U.S. and H-1B guest workers were
surfacing. Later this year, the previous legislation will sunset and
thereby reduce the number of visas to the original yearly limit of
65,000 that was in effect prior to 1998. The AFL-CIO supports this
reduction, but other reforms are also needed:

To make the program truly temporary, H-1B visas should be limited to
one non-renewable three-year term.

The program must include explicit prohibitions against replacement of
U.S. workers and must strictly tie the entry of any and all H-1Bs to
U.S. labor market conditions to minimize the impact on all professional
workers.

The existing attestation system a sort of honor code whereby employers
assert they have searched for qualified U.S. workers and are paying
H-1B workers prevailing wages and benefits should be replaced with real
safeguards that protect both domestic and foreign guest workers.

The number of guest workers per company must be limited. Only the
primary employer with a specific, full-time job opening should be
eligible to make application for an H-1B visa. In higher education, the
primary employer may make application for job openings consistent with
the unique employment terms and conditions in that industry.

H-1B workers must have an independently verified college degree
equivalent to a U.S. degree, demonstrated experience in the field for
which they are being hired and must have achieved licensure in the
occupations that require it.

With the exception of employment in higher education, H-1B workers who
are laid off for legitimate reasons must return to their home country
within 90 days. Misuse of the "portability" of H-1B visas that allows
foreign guest workers to compete against unemployed U.S. professionals
who also are looking for work should be prohibited. Employers should
not be permitted to lay off or otherwise terminate workers on H-1B visa
for asserting their rights under federal and state laws, including
their right to union representation. In higher education, workers on
H-1B visa who do not work during one semester of 120 days, whichever is
longer, shall not be considered on layoff.

The coverage and protections of all applicable federal and state labor
laws should be made available to H-1B workers, including the right to
forum unions.

U.S.-trained foreign graduate students seeking to adjust their status
should be given preferential rights for obtaining H-1B employment
visas.

The provision must be retained in current law that exempts the H-1B
workers at U.S. colleges and universities from being counted under the
H-1B caps but there must be assurances that all other current or future
requirements, such as protections of the H-1B employees labor rights
and domestic workers non-displacement rights, apply.

Regarding agency oversight, the Department of Labor and successor
agency for the Immigration and Naturalization Service the Bureau of
Citizenship and Immigration Services need to ramp up enforcement.
However, since this program directly affects the U.S. labor market as
well as workers, primary oversight responsibilities should reside with
the Labor Department. That agency must be given adequate oversight and
enforcement authority, as well as sufficient resources to end program
abuses, enforce the law and protect the interests of U.S. and guest
workers alike. If necessary, additional funds should be allocated by
statute from the $1,000 H-1B visa fee to enhance these enforcement
functions.

The current system encourages H-1B workers to keep quiet or look for
another job rather than file complaints about exploitation. The Labor
Department should be given the authority to begin affirmative
enforcement through random and profiled audits as well as through
response to complaints. In addition, the Labor Department must be given
the authority to initiate investigations of suspected misconduct
without having to wait for a complaint to be filed. H-1B employees
should be given whistle blower protections when they file non-frivolous
complaints with the Labor Department. W-2 forms for H-1B workers should
be reviewed to ensure that employers are paying the required wage and
have not cut workers hours illegally. More punitive sanctions,
including debarment from the program, must be authorized for any
employer or visa petitioner who violates statutory mandates.

The L-1 Intra-Company Transfer Visa

Under L-1, multinational corporations are authorized to bring into the
United States employees from their overseas subsidiaries on an
intra-company transfer basis. The only requirements are that these
guest workers must have worked for the company for one year out of the
past three prior to the transfer and that the individuals prior
education, training and employment must qualify the guest worker to
perform the intended services in the United States.

Several recent media reports indicate that the program is being badly
abused:

L-1s are being used to replace U.S. workers, who are often forced to
train their L-1 replacements before they themselves are laid off;
nothing in current law prevents this displacement.

Foreign-owned outplacement firms also known as body shops are bringing
in thousands of foreign L-1 visa workers and then contracting them out
to other employers, contrary to congressional intent.

While the L-1 visa is supposed to be reserved for executives, managers
and workers with specialized knowledge, the so-called body shops are
importing run-of-the-mill tech workers and other low-level workers for
U.S. firms.

Many L-1 workers lack the requisite credentials to do the high-level
work envisioned under this visa program.

L-1 brokers are filing open-ended, blanket petitions that allow mass
importation of these foreign workers instead of an individualized
application process.

Other serious problems also exist. Unlike H-1B, there is no limit on
the total number of foreign workers that can be brought into the United
States annually under the L-1 program. The duration of the visa up to
five years exceeds a reasonable definition of a temporary program.
There is no requirement that L-1 foreign guest workers be paid
prevailing wages and benefits for the duration of their employment.
Unlike H-1B, there is no visa fee to defray the cost of processing and
agency enforcement, oversight and data collection, as well as to fund
training for U.S. workers. Government agencies responsible for
administration of the program freely admit there is little or no
oversight or enforcement, a situation made worse because there are no
effective sanctions that deter abuse of this visa program.

Each and every one of these abuses must be ended, and that is the
intent of legislation introduced by Rep. Rosa De Lauro (D-Conn.) and
Rep. Christopher Shays (R-Conn.). We urge Republican and Democratic
members of the House to co-sponsor and support the De Lauro initiative
and encourage the Judiciary Committees of the House and Senate to begin
hearings soon and report out reform legislation this year.

Professional Visas in Trade Agreements

The United States Trade Representative (USTR) embedded entire new
categories of guest worker visas within new trade agreements with
Singapore and Chile. This extraordinary revision of U.S. immigration
law unilaterally undertaken by an executive branch agency occurred
without either a grant of explicit authority from, or adequate prior
consultation with, Congress. When this action came to light during
negotiations on the agreements last fall, Republican and Democratic
leaders on the House and Senate Judiciary Committees at the instigation
of the AFL-CIO raised objections with the USTR. As a result, a
bipartisan backlash led by House Judiciary Committee Chairman James
Sensenbrenner and ranking Democrat John Conyers forced the USTR to
agree to language that subjects the guest worker programs to many of
the statutory requirements of the existing H-1B program.
Notwithstanding these improvements, other key H-1B labor market
provisions will not apply to these new visas, potentially opening up
another avenue for abuse and exploitation of guest worker programs.

Congress had the opportunity to send a message to the USTR by rejecting
these agreements because they usurp the legislative authority of
Congress regarding the nations immigration law and they lack
effective and adequate labor and environmental standards. Despite the
opposition of the AFL-CIO, many affiliated unions and environmental and
other organizations, the trade agreements were approved. Now the
Judiciary Committees of the House and Senate must exercise constant
oversight to prevent the USTR from unilaterally negotiating temporary
entry provisions in future trade agreements. Otherwise the visa limits
set by Congress for foreign guest workers under H-1B and L-1, along
with whatever other reforms are implemented for these programs, will be
irrelevant.

With domestic unemployment at its highest level in nearly a decade and
with tens of thousands of jobless tech workers, engineers and other
professionals looking for work, abuses inherent in the H-1B and L-1
visas are intolerable. Employer abuse of the system whether through
displacement and unfair treatment of domestic workers, intimidation of
guest workers or artificial depression of their wages and working
conditions below the standards of the domestic labor market is
unacceptable. Congress created these programs; now it must reform them
so Americas workers are not disadvantaged and foreign workers are
protected from exploitation.

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Rob Sanchez is board member of NAEA - www.NAEA.US

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