Push for H-1B transparency

Date: Tuesday, July 25, 2006 1:47 AM

<<<<< JOB DESTRUCTION NEWSLETTER No. 1525 -- 07/25/2006 >>>>>

eWeek published an article about the effort by the Programmer's Guild to
make the Labor Application Condition (LCA) data available for 2006 and
2007.

For those new to this newsletter, let me restate where you can go to find
LCA data:

The Dept. of Labor:
http://www.flcdatacenter.com/

H1BInfo
http://www.h1b.info/

And the ZaZona website:
http://www.zazona.com/LCA-Data/

The Programmer Guild rationale is slightly off-base about why recent data
should be made available to the public.

"Declining to release this public data now appears to violate
the fundamental purpose of your division -- to protect U.S.
workers," Berry wrote.

The PG is confusing the terms "U.S. workers" and "U.S. citizens". The Dept.
of Labor doesn't have a mandate to protect U.S. citizens, although they do
say that they help promote the welfare of workers in the U.S. It may seem
like I'm arguing semantics, but consider the fact that as long as a worker
is in the U.S. legally, he/she is a "U.S. worker". The DOL mission
statement doesn't differentiate between citizens or foreign nationals: "
[the DOL] fosters and promotes the welfare of the job seekers, wage
earners, and retirees of the United States." It's fallacious to conclude
that the DOL is in the business of protecting only U.S. workers that are
U.S. citizens.

Labor Secretary Elaine Chao doesn't claim that the DOL is mandated to
protecting U.S. citizens. In a speech to George Bush she said that "getting
people back to work is what this Department does." She uses the generic
term "people" to mean anyone who can work in the U.S. legally - and that
means all people including foreign nationals.

You can read Chao's speech here:
http://www.dol.gov/_sec/media/speeches/20011004_President_visit_to_DOL.htm

The PG's stated purpose is to make the LCA data public so that Americans
can apply for the jobs. That would be fine except that these jobs aren't
open to the public. By the time the LCA is issued the employer has already
stated that they either can't find a U.S. worker, or they have decided not
to hire a U.S. citizen. Either way, by the time an LCA is issued the job is
not an open position - it's actually a done deal that an H-1B will be
hired. The DOL doesn't require employers to consider U.S. citizens for
these jobs, so PG's letter to William Carlson is on shaky ground.

In the open letter to William Carlson, chief of the Division of
Foreign Labor Certification, Programmers Guild President Kim Berry
requested on behalf of the "displaced, unemployed, and
underemployed U.S. tech workers" that the FY 2007 LCA (Labor
Conditions Applications) database be made publicly viewable, so
that U.S. tech workers can apply for these positions while they
are still open.

Item #8 of the LCA form doesn't require employers to interview U.S.
citizens or to give them preference. You can view a blank form by going to
this link:

http://www.doleta.gov/regions/reg05/Documents/eta-9035.pdf

So after all of this, the question remains - WHY SHOULD THE DOL PROVIDE
CURRENT LCA DATA TO THE PUBLIC?

There are many of us who believes all government data that is not a matter
of national security should be available to anyone who files a "Freedom of
Information Act" (FOIA). The data is public property and therefore should
be made available to the public.

More fundamentally the DOL is required by law to provide the data in a
timely fashion (20 CFR 655.760 (10(b))

Kim Berry is correct that there is no law that requires the DOL to make the
data viewable on their website, but there are regulations that require the
DOL to make the data available to the public in a timely fashion.

Berry told eWEEK that "there is not law that they have to be
viewable on the [Foreign Labor Certification's] Web site,
though they have been up through 2005 -- 2006 is not up there
yet, and more importantly, neither is 2007."

The DOL is required to provide a reading room with the most current LCA
data. They have never honored that commitment. Be sure to read the story
that I included following the eWeek article from a 2002 newsletter about my
adventure in Washington DC to find the reading room.

My groundbreaking work in 1999 to obtain the LCA data by using FOIA, and to
post the LCA data online had far more implications than any of us imagined
at the time. Once I put the first large chunk of data online the DOL said
that ZaZona.com was the "visiting room". That was very flattering but they
never paid me a dime to do what they were supposed to do by law, and they
used that as an excuse not to provide a reading room.

Ever since my visit to the DOL in 2002 they started providing the data to
me and a few others without having to hassle with FOIAs. Eventually the
DOLETA tired of providing each of us with CDs every time new data was
available so they decided to post the data online. They were probably also
prodded by the embarrassment that a few volunteer techies were able to put
the data online before they did.

There was an unspoken agreement with the DOL that if they provide us with
the data, we will not push the issue about a visiting room. Our rationale
was that it's a lot better to have the data online than in a room in
Washington DC.

Well that was then, and this is now!

The DOL hasn't given us updated data for over two fiscal years, and they
still don't have a viewing room. Now not only are they breaking our
"gentlemen's agreement" they are violating the law! I might have
differences with the PG about why the data should be provided, but we are
in total agreement that the DOL must live up to the law that requires the
data be posted in a timely matter.

It's worth noting that the PG is only asking for the H-1B portion of the
LCA data. That is a major mistake that reflects their tunnel vision on the
H-1B issue. The database also contains LCAs for H-2B and Green Cards, which
are equally important but will surely not be provided if the PG ever
prevails.

The eWeek article has a comment section. Perhaps you can voice an opinion
about why we, the public, have a right to this data.

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

http://www.eweek.com/article2/0,1895,1992897,00.asp

Programmers Guild Pushes for H-1B Transparency
July 21, 2006

By Deborah Rothberg
A request for the public release of data containing the names of the
companies requesting H-1B temporary workers and the positions they are
being hired for was filed in a public letter to the Department of Labor
July 18 by the Programmers Guild, an IT advocacy group.

In the open letter to William Carlson, chief of the Division of Foreign
Labor Certification, Programmers Guild President Kim Berry requested on
behalf of the "displaced, unemployed, and underemployed U.S. tech workers"
that the FY 2007 LCA (Labor Conditions Applications) database be made
publicly viewable, so that U.S. tech workers can apply for these positions
while they are still open.

The next batch of H-1B workers whose temporary visas have been approved
will arrive on October 1.

Berry reminded Carlson in the letter that "although LCAs are public
records, U.S. workers do not have access to these records," and likened the
records' lack of public availability to "choosing to reserve 65,000 U.S.
jobs exclusively for foreign workers."

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Berry told eWEEK that "there is not law that they have to be viewable on
the [Foreign Labor Certification's] Web site, though they have been up
through 2005 -- 2006 is not up there yet, and more importantly, neither is
2007."

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Written.'" Click here.

Berry argued that U.S. workers could be encouraged to apply for the jobs
currently slated for guest workers if they knew they were available.

"Declining to release this public data now appears to violate the
fundamental purpose of your division -- to protect U.S. workers," Berry
wrote.

The 2007 H-1B supply of 65,000 visas was exhausted June 1, four months
before new ones will be made available, and giving rise to arguments by
H-1B advocates that the current cap needs to be raised.

A provision to raise the cap to 115,000 is currently in a congressional
conference committee.

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

http://www.dol.gov/dol/allcfr/ETA/Title_20/Part_655/20CFR655.760.htm

(b) National list of applications. ETA shall compile and maintain on a
current basis a list of the labor condition applications. Such list shall
be by employer, showing the occupational classification, wage rate(s),
number of nonimmigrants sought, period(s) of intended employment, and
date(s) of need for each employer's application. The list shall be
available for public examination at the Department of Labor, 200
Constitution Avenue, NW., Room N-4456, Washington, DC 20210.

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

Date: Monday, October 28, 2002 3:53 PM

Occasionally I get asked by someone where they can go to see the newest
Labor Condition Applications(LCA)that have been filed by employers to the
Dept. of Labor. I usually refer them to 20 CFR 655.760 (shown below) that
requires the DOL to maintain a reading room for public examination of the
LCAs.

While I was in Washington D.C. for the FAIR Board of Advisors conference I
decided to drop by the DOL to use the reading room. I wanted to view some
of the newest LCAs on record, and to see if this reading room really
existed.

After signing in with the security guards I took the elevator to Room
N-4456. The room was numbered but I thought it was odd that it didn't have
a sign to designate what's in there. I walked in anyway. I saw nothing but
typical office cubicles. There wasn't even a receptionist desk to greet me.
I wandered around for awhile but didn't see anything like a library or
reading room. I finally asked a guy typing on a computer where the LCA
Reading Room is. He didn't know what I was talking about.

Fortunately I uttered the phrase "Labor Certification" and he knew what
that meant. He explained that the DOLETA department moved down the hall. He
was kind enough to escort me there.

........... We went into another office with cubicles ...........

He asked some people where I could find the LCA Reading Room but nobody had
ever heard of it. This went on for quite awhile until they brought me to
someone who knew what I was asking for.

HE EXPLAINED THAT THERE NEVER WAS AN LCA READING ROOM AND THERE ARE NO
PLANS TO HAVE ONE!

I asked him if he knew the Reading Room was required by government
regulation, and he said "Yes, so if anyone wants to see LCAs they can call
DOLETA and make an appointment."

I didn't care to ask how far in advance I would have to make an appointment
and left.

Conclusion:
The regulation states that current records are to be made available for
public viewing. This is clearly not the case so the DOL is in violation of
the law. Making an appointment to view records on a computer is no
substitute for a reading room. Until the DOL decides to comply with their
own regulations, the data at www.ZaZona.com/LCA-Data is as good as it gets.

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