H-1B Issue Returns to Lou Dobbs

Date: Friday, August 26, 2005 1:16 AM

JOB DESTRUCTION NEWSLETTER

by Rob Sanchez
August 26, 2005 No. 1322

Lou Dobbs hasn't done a show on H-1B for a very long time, but that's just about to change. Be sure to watch the show tonight, Friday 26, 2005. The Lou Dobbs website hasn't officially announced this is on their schedule at the time I'm sending this newsletter out, but it will probably appear later in the day.

http://www.cnn.com/CNN/Programs/lou.dobbs.tonight/

THE ISSUE:

Over 50,000 H-1B visas for 2006 have been gobbled up by employers. Ostensibly these visas are to be used only when companies can't find Americans that are qualified for the job. So how do companies know that they won't be able to find Americans in 2006 when they haven't even advertised the jobs? Unless employers have a crystal ball that allows them to look into the future there is a question how they could know that there won't be any Americans that could be hired in 2006, especially since they probably didn't give Americans a chance to interview for these jobs. Think about it, have you seen a job ad that says:

Wanted, computer programmers in the year 2006.
In addition to being able to write C++ and JAVA,
you must have at least 10 years of proven
experience at walking-on-water.

BACKGROUND:

The DOL gets the visa requests for H-1B visas when an employer files a "Labor Condition Application" (LCA). LCAs can be put into a searchable database (go to my links page to see the databases available online or use the LCA database at ZaZona.com).

The DOL has been posting LCA data for the last several years, but they don't seem to be in a hurry to make the 2006 data available to the American public. All that Kim Berry of the ProgrammersGuild asked of the DOL is for them to post the LCAs for 2006 so that qualified Americans could apply for the jobs before the H-1B arrives on our shores. The DOL has consistently stonewalled Berry and others when they called the DOL to request the data.

DISCLAIMER, SORT OF:

I have explained to all of you many times that employers don't have to consider American citizens before they hire H-1Bs; but if you ask any of the politicians who voted for the H-1B program they will always say that the visa is to be used only when qualified Americans can't be found. They will usually follow that with some standard B.S. about how American citizens don't have the skills that employers need in this era of super-duper high-technology. Sponsors of the bill such as Sen. John McCain will tell you that H-1B regulations protect American citizens from abuse and discrimination. Considering the rhetoric that there are so few qualified Americans, and that we are all protected from exploitation, I can see no reason why the DOL is so reluctant to make the LCA data available. What is there to hide?

I included some material below that will give you more background on this issue.

+++++++++++++++++++++++++++++++++++++++++++++++++++

-- Comment From Kim Berry from CA
http://programmersguild.org/

I've left several messages to both the default person and to Sierra Leddy - who someone told me as the person to speak to, at DOL Foreign Labor 202-693-3010.

NO ONE HAS EVER CALLED ME BACK OR DIRECTLY ANSWERED THEIR PHONE IN TWO WEEKS.

My voicemail message, roughly:

"Hi this is Kim Berry of the Programmers Guild and we represent many unemployed and underemployed U.S. computer programmers. Currently DOL has the records of 50,000 U.S. job openings, resented by approved LCAs for jobs that cannot be filled until October 1st. We are asking simply that DOL release this list of jobs immediately so that Americans can be given EQUAL, EQUAL! Consideration for jobs in this country. DOL accepts these LCAs online on there website, so there seems to be no reason that this same website cannot have a search for these jobs so that Americans can apply. More immediately DOL should provide the list as an Access file. If you are not the correct person to speak with will you please return my call and let me know who to speak with, or escalate this to the proper person?

Just now the legislative aid of my Congressman Lungren called to let me know I should not count on them to resolve this because, while they have a another phone number for their use, it is also just a voicemail, and they have not
returned her call either.

Can we brainstorm a solution?

FILE A FEDERAL INJUNCTION TO STOP THE RELEASE OF THESE JOBS ON OCTOBER 1st UNTIL U.S. WORKERS ARE FIRST CONSIDERED EQUALLY, ON CONSTITUTIONAL GROUNDS?

I don't know how to make the legal system work at this speed, but I know that it can.

Press releases? Anyone else put pressure on?

+++++++++++++++++++++++++++++++++++++++++++++++++++

-- Comment From Char Clingman from IL

I have been calling the Department of Labor for 3 weeks and I have yet to reach a live body. I continually am diverted to a voicemail recorder where I leave my name and telephone number. No call back is ever attempted from the DOL.

Referring the US Laborforce to SECOND STRING is very appropriate. Employers are filling jobs with their 'subsidies' FIRST (H-1B, L-1). Since the cap has been met, I have had 3 job interviews. From April thru the beginning of August '05, I had a whopping 2 job interviews with no offers.

Today, I had to hold my tongue when a potential employer asked snippedly, "You mean to tell me you have not worked since April '04?" This from an employer that has been 'outed' for callously requiring their employees train their replacements in order to get their severance pay. Remaining diplomatic is becoming a full time job for many of us
cast-aways.

+++++++++++++++++++++++++++++++++++++++++++++++++++

http://www.infoworld.com/article/05/08/23/35OPreality_1.html

Are U.S. workers second-string IT hires?

Why is the Department of Labor keeping U.S. citizens from having equal access to more than 50,000 IT jobs?

Reality Check, By Ephraim Schwartz
August 23, 2005

Why is the Department of Labor refusing to post on its Web site a database of more than 50,000 job openings - many for IT workers - for 2006? Are they precluded by law to do so, as a DOL spokesperson claims?

This issue is part of a controversy currently raging between the DOL and professional organizations such as the Programmers Guild about the U.S. Citizenship and Immigration Services (USCIS, formerly the Department of Immigration and Naturalization) H-1B visa quota for 2006.

Heres how USCIS defines an H-1B visa: "Established by the Immigration Act of 1990 (IMMACT), the H-1B nonimmigrant visa category allows U.S. employers to augment the existing labor force with highly skilled temporary workers. H-1B workers are admitted to the United States for an initial period of three years, which may be extended for an additional three years. The H-1B visa program is utilized - to employ foreign workers in specialty occupations that require theoretical or technical expertise in a specialized field. Typical H-1B occupations include architects, engineers, computer programmers, accountants, doctors and college professors."

The DOL requires that U.S. employers who want to hire someone on an H-1B visa first submit what is called an LCA (Labor Condition Application). The LCA describes (briefly - sometimes just a title) the opening available. Thus far, the department has received 51,939 LCAs. Programmers Guild President Kim Berry and others are calling for the DOL to post these LCAs and make them searchable, so that anyone can apply for the open positions.

The cap for H-1B visas in 2006 is set at 58,200, but apparently, according to the USCIS Web site, 22,383 visas have already been approved and 29,556 are still pending. Berry says the DOL is "refusing to disclose the opening to U.S. citizens so that they may have equal opportunity to apply for and fill these U.S. jobs."

David James, a spokesman for the DOL, says, "- statutorily speaking, Congress doesnt give the authority to us, the Department, to do what you are asking us to do. We comply to the fullest extent that the law allows us to comply. This is a congressional legislative matter. The statutory language is very narrow about what we can and cannot do."

Berry says no statute specifies when and how LCA records are released. He believes that the DOL is stonewalling requests by organizations like his to publish these openings on the DOL Web site, despite the fact that a foreign worker with a valid 2006 H-1B visa could not start employment until October 1, 2005. Whats more, Berry says that a disproportionate number of these openings are for software engineers and computer programmers.

Employers are under no obligation to hire Americans, but the DOL should be obligated to make the information available to the public before the jobs are filled, not after, says Berry.

Norman Matloff, professor of computer science at the University of California, Davis, e-mailed me that "there is no question that the Department of Labor, ironically, is acting in a manner hostile to labor." I couldnt agree more.

Is the government exempt from treating customers - in other words, taxpayers - with respect? Does customer service not exist in its vocabulary? If there is a reason why the DOL cannot post these positions, it should cite the statute. Or better yet, help lobby for a change.

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