Napolitano Invites More Countries To Use H-2A/H-2B Visas
Napolitano Invites More Countries To Use H-2A/H-2B Visas
Date: Friday, January 29, 2010 3:59 PM
<<<<< JOB DESTRUCTION NEWSLETTER No. 2077 -- 1/29/2010 >>>>>
Department of Homeland Security (DHS) Secretary Janet Napolitano issued a
bureaucratic decree that allows additional countries to send guest workers
to the U.S. by participating in the H-2A and H-2B visa programs.
Croatia, Ecuador, Ethiopia, Ireland, Lithuania, The Netherlands,
Nicaragua, Norway, Serbia, Slovakia, and Uruguay are countries
whose nationals are eligible to participate in the H-2A and
H-2B programs.
These are the countries that are already on the fast track list for
H-2A/H-2B visas:
Argentina, Australia, Belize, Brazil, Bulgaria, Canada, Chile,
Costa Rica, Croatia, Dominican Republic, Ecuador, El Salvador,
Ethiopia, Guatemala, Honduras, Indonesia, Ireland, Israel,
Jamaica, Japan, Lithuania, Mexico, Moldova, The Netherlands,
Nicaragua, New Zealand, Norway, Peru, Philippines, Poland,
Romania, Serbia, Slovakia, South Africa, South Korea, Turkey,
Ukraine, United Kingdom, Uruguay.
Just in case Napolitano missed a country that wants to send cheap laborers
to the U.S., she included a gaping loophole that allows any country to
participate -- albeit employers will probably have to file a few additional
forms to show why the worker they want to import is vital to the best
interests of the U.S. From the Napolitano decree:
On a case-by-case basis, DHS may allow a worker from a country not
on the participating country list to be eligible for the H-2A or
H-2B program if such participation is in the interest of the
United States.
Here are a few details on the two visas, and one other that should be
cosidered:
* H-2A: Used for farm and agricultural workers. This category can
be interpreted to mean anybody that works on farms, ranches,
gardens, or anywhere else that produces farm products. The DOL
defines H-2A categories as being work of a temporary or seasonal
nature usually in relation to the production and/or harvesting
of a crop. The most important thing to know about H-2A visas is
that there is NO YEARLY CAP TO THE NUMBERS ADMITTED!
* H-2B: These visas are used for skilled blue collar workers --
like for instance welders. The numerical limit set by Congress
per fiscal year is 66,000. H-2B visas can be extended for up to
three years.
* H-4: All H-2A and H-2B visa holders can get H-4 visas for spouses
and unmarried children under 21 years of age. H-4 visa holders
cannot get authorization to work, but they are entitled to all
government services offered to citizens. If the married couple
births a child while they are in the U.S. that child becomes a
jackpot baby.
Napolitano s decree will almost certainly result in an increase in the
numbers of H-2A visas issued. Expect the H-2B visa cap to be reached far
earlier as demand increases and when that happens the cheap labor lobby
will have an excellent reason to argue that the cap must be raised.
Napolitano s actions seem to violate the U.S. Constitution which
designates Congress the responsibility of regulating immigration ( Article
1, Section 8, U.S. Constitution The Congress shall have Power ... To
establish an uniform Rule of Naturalization...."). Unfortunately the
Constitution is rarely considered nowadays so Napolitano s actions are
not unprecedented. Here are two more examples of legislation by
bureaucratic fiat:
* Optional Practical Training (OPT): in 2008 Michael Chertoff
made a rule change to extend the time period of OPT from 12
months to 27. The legislation by bureaucratic fiat was
signed off and approved by President Bush in 2008.
Extending the visas was tantamount to a de facto H-B visa
increase.
* Trade NAFTA (TN): In 2008 Homeland Security Secretary
Michael Chertoff and Department of Commerce Secretary
Carlos Gutierrez made a rule change that increased the
duration of the TN visa from one year to three. This rule
changed messed with both international trade agreements
and immigration -- but there was never a whisper of
complaint from Congress.
Web version of article:
http://blog.vdare.com/archives/2010/01/29/napolitano-invites-more-countries-to-use-h-2ah-2b-visas/
http://www.dhs.gov/ynews/releases/pr_1264197311110.shtm
Secretary Napolitano Designates 11 New Countries as Eligible for H-2a and
H-2b Nonimmigrant Visa Programs
http://www.vdare.com/rubenstein/061004_nd.htm
National Data, By Edwin S. Rubenstein
http://www.vdare.com/misc/060607_henry.htm
Congressman Mike Pence and the Amnesty Lobby
http://www.vdare.com/misc/060607_henry.htm
Congressman Mike Pence and the Amnesty Lobby
http://www.dol.gov/compliance/guide/taw.htm
Work Authorization for Non-U.S. Citizens: Temporary Agricultural Workers
(H-2A Visas)
http://www.vdare.com/sanchez/091123_italian_welders.htm
Italian Welders Work On Dallas Bridge -- Texans Remain Jobless
http://www.urbandictionary.com/define.php?term=jackpot+baby
anchor and jackpot babies
http://www.computerworld.com/s/article/9141102/Tech_workers_take_H_1B_case_to_Supreme_Court
Tech workers take H-1B case to Supreme Court
http://www.uscis.gov/files/article/tn_nonimmigrant_changes_update.pdf
USCIS INCREASES PERIOD OF STAY FOR TRADE-NAFTA PROFESSIONAL WORKERS FROM
CANADA AND MEXICO
http://www.capsweb.org/content.php?id=334&menu_id=8&menu_item_id=66
Thanks to feds, search for internships tougher
+++++++++++++++++++++++++++++++++++++++++++++++++++
http://www.dhs.gov/ynews/releases/pr_1264197311110.shtm
Secretary Napolitano Designates 11 New Countries as Eligible for H-2a and
H-2b Nonimmigrant Visa Programs
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Release Date: January 22, 2010
For Immediate Release
Office of the Press Secretary
Contact: 202-282-8010
Department of Homeland Security (DHS) Secretary Janet Napolitano this week
designated 11 new countries as eligible to participate in the H-2A and H-2B
nonimmigrant visa programs, which allow U.S. employers to bring foreign
nationals to the United States to fill temporary or seasonal jobs for which
U.S. workers are not available.
The 11 newly designated countries -- Croatia, Ecuador, Ethiopia, Ireland,
Lithuania, The Netherlands, Nicaragua, Norway, Serbia, Slovakia and Uruguay
-- join 28 countries previously designated as eligible to participate in
these programs.
The initial lists of participating countries for the H-2A and H-2B programs
-- published in December 2008 -- expired on Jan. 17 and 18, respectively.
After consulting with Secretary of State Hillary Clinton, Secretary
Napolitano determined that the 11 newly designated countries meet the
standards required for participation in the H-2A and H-2B programs. The new
combined list was published Monday in the Federal Register.
On a case-by-case basis, DHS may allow a worker from a country not on the
participating country list to be eligible for the H-2A or H-2B program if
such participation is in the interest of the United States.
For more information, visit www.dhs.gov.
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http://www.vdare.com/rubenstein/061004_nd.htm
October 04, 2006
National Data, By Edwin S. Rubenstein
"Foreign Labor Contractors" a.k.a. Gangmasters -- The New Immigration
Paradigm?
We ve all heard stories about Mexican immigrants doing the heavy lifting
after Hurricane Katrina. But Chinese immigrants?
That s right -- 2 to 3 thousand Chinese immigrant workers may soon help
rebuild sewers, houses, and water systems in small towns along the Gulf
Coast. Local officials claim the Help Wanted sign has been out for months,
but big U.S. contractors are simply too busy to work in the affected area.
The Chinese workers won t hop on a plane or take a slow boat from China
in hopes of landing a job in New Orleans or Gulfport. They won t enter
illegally. If the deal closes they will be hired, en mass, in China by
Tangdu International Enterprises -- a Chinese labor contractor. When they
arrive, they ll work for two large Chinese companies -- Beijing
Construction Engineering Co., Ltd., and Beijing Urban Construction -- and
smaller local partners.
To add insult to injury, these companies say they ll use Chinese building
materials in order to avoid the higher-priced, but sturdier, American
products.
What does this portend for structural integrity in a future Katrina? Or,
more importantly, for the integrity of (what s left) of our immigration
controls?
For this anecdote is of more than local interest. It exemplifies a new
model of immigration.
Traditionally immigrant workers negotiated directly with their U.S.
employers. In the new paradigm, labor contractors like Tangdu hire
immigrant workers for many U.S. employers simultaneously. On VDARE.COM,
these employers have been called "gangmasters".
One of the largest contractors is an outfit called Global Horizons. Its
website describes it as
"...the first company to establish a new and improved labor-recruiting,
labor providing business model to meet the temporary and permanent needs of
employers worldwide."
"Recruiting quality workers from diverse places like Thailand, India,
Nepal, Israel, as well as Eastern and Western Europe, Global Horizons
brings these workers to any economy where domestic labor is in short supply
because of the "economic evolution" occurring in that particular country.
This, of course, includes the United States of America."
Global Horizons was founded in 1989 by an Israeli, and is currently
headquartered in Los Angeles. At any one time it has 3 to 4 thousand farm
workers under contract in up to 28 states.
Contract labor is increasingly the norm in agriculture. In 2002 43% of
California s farm workers were supplied by third-party contractors, the
rest were hired directly by farmers. In 1983 only 28% were hired by
contractors. [Farms Increasingly Rely on Subcontracted Farmworkers,
Petoskey News-Review, AP, July 14, 2006.]
Farm workers are brought under the H-2A visa program for seasonal
agricultural workers. To earn a visa, employers must show that they ve
tried to recruit US workers first, and provide free, DOL-approved housing
for all temporary hires.
But western farmers do not like the H-2A program. They say it is too
inflexible for "perishable western agriculture" because it requires farmers
to certify their need for workers 60 days before hiring them. The housing
requirement is also regarded as onerous.
Enter the labor contractor.
In 2004 Global Horizons brought in hundreds of H-2As from Thailand to work
in Washington State s Yakima valley. The workers were housed in
overcrowded motel rooms that violated local health regulations for human
habitation. There were no kitchens or laundry facilities. Global
Horizon s workers were paid less than the wage for which they were
contracted.
Washington State fined Global Horizons for violating labor laws, and in
2005 forced the firm to pay complete financial restitution to workers and
the state totaling $230,000. The employers didn t pay the fine -- Global
Horizons did.
Similarly, if Global Horizons had brought in illegal aliens instead of
H-2As, they would have absorbed the fines that would otherwise have been
levied on the employers that hired them.
There are other advantages of hiring via contractors. Contractors enable
employers, in effect, to outsource their HR departments, reducing the
expenses involved in vetting new employees and applying for their visas.
Some contractors even provide equipment for their workers -- a big savings
for employers.
But the big draw is the avoidance of legal liability. In the words of
U.C.-Davis economist Phillip Martin, labor contractors act as "..... risk
absorbers, absorbing fines that could otherwise be levied on the farms
where the workers were employed in the event of immigration enforcement."
In theory, the workers can also benefit. They re more likely to have
stable employment with a large contractor. The United Farm Workers supports
the H-2A visa program -- claiming that H-2A status makes farm workers more
likely to join unions and press for wage hikes.
But in a global economy, these gains are elusive at best. Economic
differences among countries are widening -- encouraging migration from low
to high wage countries.
In 1975, for example, the per capita income gap between rich countries
(defined as those with $9,300 or more per person per year) versus poor
countries (below $750 per year) was 41 to 1; by 2000 this gap had grown to
66 to 1. [Phillip Martin, "Managing Labor Migration: Professionals, Guest
Workers, and Recruiters," United Nations Expert Group Meeting on
International Migration and Development, July 6-8, 2005.]
International contractors can round up crews from all over the world, and
then negotiate with U.S. employers on behalf of the entire crew. There
inevitably is a race to the bottom, with Mexicans (per capita GDP $10,000
per year) displacing Americans ($42,000), and Chinese ($6,800) displacing
Mexicans. Even Chinese income levels would look good to an Indian worker
($3,300) or a Bangladeshi ($2,100).
The wider the income gap between the native and immigrant workers, the more
profitable labor contracting becomes.
No one knows this better than the federal officials who administer the H-2A
visa program.
In fact, several ex-administrators of the H-2A visa program have left the
Department of Labor to open their own labor brokerages. They became labor
contractors -- applying to their former colleagues for visas.
Surprise, surprise: the number of jobs certified as requiring H-2A workers
rose sharply after they left. Not to mention the fees collected by the new
labor contractors.
We don t allow military brass to leave the Pentagon one day and work for
defense contractors the next. Shouldn t we have the same safeguards for
officials who administer our immigration laws?
This is moral hazard, pure and simple. Yet it s apparently all legal --
as are the immigrants this corrupt system brings into the country.
Legal, that is, until Congress wakes up. Or is woken up.
Edwin S. Rubenstein (email him) is President of ESR Research Economic
Consultants in Indianapolis.
+++++++++++++++++++++++++++++++++++++++++++++++++++
http://www.vdare.com/misc/060607_henry.htm
June 07, 2006
Congressman Mike Pence and the Amnesty Lobby
By Marcus Henry*
Two days before the United States Senate passed S.2611, Congressman Mike
Pence (R-IN) delivered a speech on immigration policy at the Heritage
Foundation. Pence offered what he called a "middle ground" proposal, a "no
amnesty immigration reform" in which "securing our border is the first
step." [Renewing the American Dream: The Real Rational Middle Ground on
Immigration Reform, May 23, 2006]
The timing of Pence s speech and his position as chairman of the House
Republican Study Committee combined to get his proposal the maximum media
attention. So, what is the "middle ground" Pence wants to occupy?
The Krieble Foundation Genesis of Rep. Pence s Plan
On December 13, 2005, the same day the House of Representatives passed the
landmark Sensenbrenner bill HR 4437, the Heritage Foundation offered its
stage to Helen Krieble, head of the Vernon Krieble Foundation, to outline
her plan to allow all illegal aliens in the U.S. to stay by having work
permits issued by private sector labor brokers stationed in border towns.
Krieble employs guest workers under the H-2A visa program on her horse farm
and complains of the excessive paperwork and long waiting lines involved.
Doubtless Krieble speaks for many employers in the agricultural sector who
would prefer a more streamlined process.
But those visa safeguards, documents and regulations were put in place for
a reason -- like the rule that says the temporary worker has to go home
after ten months and reapply from his home country.
Lawmakers who enacted the H-2A program had the quaint notion that a
temporary workers should be, well . temporary. The new plan envisioned by
the Krieble Foundation and now endorsed by Pence would eliminate most of
those nuisances.
Pence s proposal borrows heavily from the Krieble Foundation plan.
Krieble s Heritage Lecture used some bizarre logic to reach its
conclusions, including opposition to fences and walls on our borders.
In her lecture, "Private Employers and Border Control," she made a
remarkable statement about walls. She said that the former Soviet Union
built walls "when there were enemies on the other side of the wall."
Krieble is ignorant of the Berlin Wall s true purpose. Most people who
lived through the Cold War remember that the Soviets built those walls to
keep their own people IN, not to protect against invading Finns and
Romanians.
Ronald Reagan told Gorbachev to "Tear down that wall!" to liberate people
INSIDE the Soviet Empire, not as a condemnation of all walls and fences.
For that reason, it is disconcerting to see Pence chose Krieble as his
border security mentor.
A wall between Mexico and the US is required because Mexico hardly
qualifies as a genuinely passive neighbor. Consider its inability to
control the drug cartels now running the billion-dollar people smuggling
business throughout the lawless border regions.
Nuevo Laredo, Matamoros, Ciudad Juarez and other border towns are
gang-controlled. Add to this the inconvenient fact that the Mexican
government actively encourages its citizens to enter our country illegally.
Mexico s peaceful intentions are open to serious question.
The Temptation of "Statesman s Disease"
Pence is not the first ambitious politician in Washington, DC to be seduced
by the siren song of cheap labor, but his proposal is especially noxious
because of its deceptive packaging.
Pence has now joined open borders advocates like Senators Larry Craig and
John McCain. But because Pence wants to keep his conservative credentials
he must label his plan a "no amnesty" immigration reform despite its
stealth amnesty provisions.
The gambit is about as ingenious as McCain and Kennedy insisting their plan
is not amnesty because the illegal aliens must pay a fine before getting
their work permits and their path to citizenship.
By attempting to play statesman, Pence has legitimized defection from
conservative ranks at the very moment conservatives need to unite behind
the House s enforcement-first plan, HR 4437, written by Judiciary
Committee Chairman James Sensenbrenner.
HR 4437 passed the House in December by a huge margin with support from 90%
of House Republicans. By jumping ship from HR 4437 in favor of a
"comprehensive reform," Pence undermines Sensenbrenner and House
conservatives fighting to uphold the enforcement-first strategy. The
details of Pence s plan will not be known until he introduces his bill.
But his May 23 Heritage speech offers an outline.
All of its key features depart from the enforcement-first principles of the
Sensenbrenner bill.
If It Quacks Like a Duck
There are at least four reasons why Pence s plan does not qualify as "no
amnesty immigration reform" or as a solution to our illegal alien mess.
* First is its sophomoric dishonesty on the amnesty issue.
Pence says he rejects amnesty and restates that several times in his
Heritage speech, but like Bush, Kennedy and McCain, he proceeds to grant
amnesty anyway. The Heritage Foundation defined amnesty in one of its 2005
papers as any plan that does not require illegal aliens already in the US
to go home and apply for a work visa in order to enter the country legally.
Pence asserts his plan meets this test by requiring all illegal aliens now
employed to cross the Mexican border and then return one week later to the
same jobs with their freshly minted work permits. Thus, he guarantees
illegal aliens can keep their existing jobs and suffer only the
inconvenience of a one-week trip to the border and back, but he insists
this is not amnesty.
How this one-week-visa process is supposed to work for non-Mexicans from
Peru, Pakistan and Ireland is not explained by Pence -- another example of
his plan's shallowness. The only criteria mentioned for being allowed to
keep the same job is that the employer is satisfied with their work and
welcomes their return if they pass a background check -- a background check
coordinated by the employer s agent, a labor broker.
Pence says nothing about the more than 3.5 million visa overstays from over
100 countries or how they get certified for re-entry to their existing
jobs. Do they get the same "no-amnesty" benefits as Mexican citizens who
walked across the border?
According to the Krieble plan that Pence has now adopted, this one-week
turnaround will be guaranteed by giving that task to private sector labor
brokers who will coordinate background checks and match each worker to the
same job they have been working illegally if their employers wants them to
return.
Presto! The problem of 12 million illegal aliens is solved through the
marriage of free enterprise and modern computer technology. Pence admits
that this virtual guarantee of keeping the same job is essential to the
plan s viability because without that guarantee, none of the illegal
workers would dare leave the job and cross the border to put his fate into
the hands of a labor broker who gets his commission from the employer, not
the worker.
It is anyone s guess whether Pence really believes this nonsense or is
merely throwing a hair brained idea into the policy mix in hopes of getting
some credit for whatever compromise might eventually emerge from the
sausage grinder of congressional legislation.
It is certain Pence s idea of private sector labor brokers taking over
the process of granting ten million work visas will not survive the laugh
test much less close scrutiny by people attentive to national security.
Even Pence admits that illegal aliens who cannot pass a criminal background
check will never come "out of the shadows" to submit to even this minimal
scrutiny.
The Straw Man of Mass Deportation
* Second, Pence cannot be taken seriously because of his use of
Bush s straw man argument about the impossibility of "mass deportations."
He presented his proposal as a middle ground between the "two extremes" of
mass deportations and amnesty, yet no one who spoke in support of HR 4437
in the floor debates has proposed or suggested mass deportations as part of
a solution.
In fact, it is widely known that HR 4437 is explicitly based on the
attrition strategy and not deportations. If the jobs magnet is turned off
through vigorous enforcement of our labor laws, illegal aliens will stop
coming. Those already here will go home over time. Pence s use of such
flawed logic shows that either he has not studied the problem in depth or
he is willing to be a Karl Rove stooge or both.
No Concern about Lost Jobs and Lost Wages
* Third, Pence ignores the job displacement problem created by hiring
cheap foreign labor.
Like most such plans, his proposal does not require that employers
demonstrate that no American will take the job at the prevailing wage, only
that the job was posted at a worksite. But at what wage was the job
advertised?
Pence shows no awareness or concern about the serious problem of wage
erosion over the past two decades created by the availability of illegal
workers. He assumes that a job now held by a foreign worker is one no
American wants. The problem of unemployed dry wall installers and
subcontractors who used to do that work for $15 an hour but can t compete
against illegal workers who do it for $8 does not concern him.
How to even calculate a legitimate prevailing wage in jobs where wages have
been eroded for twenty years by illegal labor is an issue never addressed
by any of the guest worker proposals. The Krieble Foundation, the Heritage
Foundation or the CATO Institute have never discussed this critical issue.
Temporary Workers Have a Path to Citizenship
* Fourth, Pence s sleight-of-hand about the "path to citizenship" for
temporary workers is a fatal flaw. Newspaper reports on the Pence plan
mentioned it as a "compromise" -- that is, it did not offer a path to
citizenship.
But it does. In his Heritage speech, Pence says that the period of the
worker s stay in the U.S. is limited to two three-year terms. Then he
adds this juicy morsel: After the six years, "the worker must choose"
whether to return home or apply for legal residence as a citizen. It is
only their term as guest workers that is limited, not their residence in
the United States.
In Pence s plan it is the worker s choice to return home or not. There
is no requirement that he apply for a green card from his native land. He
might decide to stay and apply for a green card that leads to citizenship.
(Memo to Mike Pence: This is called a "path to citizenship" and is the same
option allowed under the Kennedy-McCain bill and the Martinez-Hagel bill
passed by the Senate on May 25.)
White House Hubris vs. House Republican Survival
All of this would be a mere sideshow if it were not for the auspicious
timing of the Pence plan.
Pence is entitled to propose anything he likes and to jump into the
immigration debate with both feet.
Grover Norquist has been peddling the open borders snake oil among
conservatives for years, and the CATO Institute and the Club for Growth
have given cover to these rogue libertarians. But when a new stealth
amnesty proposal is thrown on the table at the precise moment when House
conservatives must unite against the Senate s foolishness, something is
rotten.
House Republicans basically have two choices in dealing with the Senate
bill. They can attempt to fashion a face-saving compromise with the Senate
by way of a conference committee s negotiations, or they can say no to
the very concept of another amnesty and require the Senate to bring an
enforcement-first bill to the table.
Pence has made his choice. Like McCain and Rove, he thinks you can finesse
away the issue of amnesty by redefining it. Allowing 12-15 million illegal
aliens to become citizens is no big deal to them as long they can pretend
we are securing the borders (wink, wink) against the next 15 million.
This passes for political shrewdness in our nation s capital today and
demonstrates why the Republicans are in such a mess.
Pence and a few others in House leadership are desperately trying to find
some way to pull the president s chestnuts from the fire of public
outrage over our porous borders.
Bush has only himself to blame for the immigration blind alley he is in. He
staked out his amnesty position in January 2004 and refuses to listen to
the chorus of voices inside his own party telling him to change course.
The paltry 6,000 National Guard troops announced by Bush is a transparent
ploy to disarm critics, not a serious plan to secure the border. Thus, it
is an excess of hubris for the White House to suggest that House
Republicans have some obligation to help restore the president s poll
standings by swallowing the Senate s amnesty plan.
House conservatives sole responsibility is to produce sound legislation
that is good for the country and in tune with their constituents values
and interests. The Bush-McCain-Kennedy amnesty bill meets neither test, and
Pence s conservative credentials are now tarnished by his misguided
attempt to help Rove engineer a stealth amnesty.
When sound policy and smart politics happen to coincide, it is incredibly
stupid to run in the opposite direction.
Pence is not stupid so he must have had something else in mind. Perhaps a
few congressmen in very safe districts can go slumming with the open
borders lobby and show bravado by insulting their base.
But for most House Republicans that kind of thing is a luxury they cannot
afford in 2006. It will lead to disaster
_______________________________
*Marcus Henry [e-mail him] is the pseudonym of a veteran observer of
Washington, DC current event. He worked on Capitol Hill during the Reagan
Administration.
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http://www.dol.gov/compliance/guide/taw.htm
Work Authorization for Non-U.S. Citizens: Temporary Agricultural Workers
(H-2A Visas)
Sections 101(a)(15)(H)(ii)(a), 214, and 218 of the Immigration and
Nationality Act of 1952,
(INA)(http://www.uscis.gov/portal/site/uscis/menuitem.f6da51a2342135be7e9d7a10e0dc91a0/?vgnextoid=fa7e539dc4bed010VgnVCM1000000ecd190aRCRD&vgnextchann
el=fa7e539dc4bed010VgnVCM1000000ecd190aRCRD&CH=act) as amended (8 USC
''1101, 1184, and 1188;
20 CFR 655 Subpart
B(http://www.dol.gov/dol/allcfr/Title_20/Part_655/Subpart_B.htm), and 29
CFR Part 501(http://www.dol.gov/dol/allcfr/Title_29/Part_501/toc.htm))
Who is Covered
The Immigration and Nationality Act (INA) is administered by the Office of
Foreign Labor Certification (OFLC) of the Employment Training
Administration (ETA). The INA covers agricultural employers seeking to hire
temporary agricultural workers under H-2A visas.
The work to be performed must be "of a temporary (or seasonal) nature,"
meaning employment that is performed at certain seasons of the year,
usually in relation to the production and/or harvesting of a crop, or for a
limited time period of less than one year when an employer can show that
the need for the foreign workers(s) is truly temporary.
Important Notice. All program users and other interested parties should
frequently consult the Office of Foreign Labor Certification Web
site,(http://www.foreignlaborcert.doleta.gov/) where the Department of
Labor will post updates concerning the H-2A temporary agricultural labor
certification program.
Basic Provisions/Requirements
The H-2A temporary agricultural program establishes a means for
agricultural employers who anticipate a shortage of domestic workers to
bring nonimmigrant foreign workers to the U.S. to perform agricultural
labor or services of a temporary or seasonal nature. Before the U.S.
Citizenship and Immigration Services (USCIS)(http://www.uscis.gov/) can
approve an employer's petition for such workers, the employer must file an
application with the Department stating that there are not sufficient
workers who are able, willing, qualified, and available, and that the
employment of aliens will not adversely affect the wages and working
conditions of similarly employed U.S. workers. The statute and Departmental
regulations provide for numerous worker protections and employer
requirements with respect to wages and working conditions that do not apply
to nonagricultural programs. The Department's Wage and Hour
Division(http://www.dol.gov/whd/) has responsibility for enforcing
provisions of worker contracts.
Any employer who has been certified for a specific number of H-2A jobs must
have initially attempted to find U.S. workers to fill these slots. Even
after H-2A workers are recruited employers must continue to engage in
"positive recruitment" of U.S. workers.
Employee Rights
An employer who files an application for temporary foreign labor
certification pursuant to H-2A regulations must meet many specific
conditions, including those concerning recruitment, wages, housing, meals,
transportation, workers compensation insurance, tools and supplies,
certification fees, labor disputes, and other conditions.
Workers who believe that their rights were violated under the H-2A
regulations may file their complaints through the Job Service Complaint
System, as described in 20 CFR part 658, Subpart
E(http://www.dol.gov/dol/allcfr/Title_20/Part_658/Subpart_E.htm).
H-2A workers and the U.S. workers hired under the job order may file
complaints about non-compliance with H-2A labor standards with a local Wage
and Hour Division office(http://www.dol.gov/whd/america2.htm). ETA or any
State Workforce Agency will forward any complaint received about
contractual H-2A labor standards between the employer and the employee to a
local Wage and Hour Division office(http://www.dol.gov/whd/america2.htm)
for appropriate action.
Recordkeeping, Reporting, Notices and Posters
Notices and Posters
There are no notice or poster requirements.
Recordkeeping
Employers certified under H-2A must keep records of the hours each worker
actually works. In addition the employer must retain a record of time
"offered" to the worker but which the worker "refused" to work. Each worker
must be provided a wage statement showing hours of work, hours refused, pay
for each type of crop, the basis of pay (i.e., whether the worker is being
paid by the hour, per piece, "task" pay, etc.). The wage statement must
indicate total earnings for the pay period and all deductions from wages
(along with an explanation as to why deductions were made).
Employers must maintain records concerning any worker who was terminated
and the reason for such termination. The employer, in order to negate a
continuing liability for wages and benefits to workers, must notify the NPC
of any abandonment or abscondment. The employer should also indicate if
replacement(s) will be sought for such worker(s).
Reporting
The worker must be provided with a complete statement of hours worked,
offered, and refused, pay for each type of crop, the basis of pay (i.e.,
whether the worker is being paid by the hour, by the piece, "task" pay,
etc.) on each payday. The wage statement must indicate total earnings for
the pay period and all deductions from wages (along with a statement as to
why deductions were made). The employer must provide a copy of a work
contract or the job order to each worker on or before the first day of
employment.
Penalties/Sanctions
The Wage and Hour Division has a primary role in investigating and
enforcing the terms and conditions of employment. WHD is responsible for
enforcing the contractual obligations employers have toward employees, and
may assess civil money penalties and recover unpaid wages. Administrative
proceedings and/or injunctive actions through federal courts may be
instituted to compel compliance with an employer's contractual obligations
to employees.
ETA enforces other aspects of the laws and regulations. ETA is be
responsible for administering sanctions relating to substantial violations
of the regulations and less than substantial violations of the regulations.
Relation to State, Local, and Other Federal Laws
Foreign workers employed under the H-2A program are not covered under the
Migrant and Seasonal Agricultural Worker Protection Act (MSPA) however,
various other laws, such as workers compensation, tax (unemployment
insurance, local, state, and federal), the Fair Labor Standards Act, and
the Family and Medical Leave Act may apply to the employment of these
workers.
Compliance Assistance Available
Copies of the application forms, regulations, and relevant directives may
be obtained from the Employment and Training Administration s national
office. Copies of Wage and Hour Division publications may be obtained from
the Wage and Hour Division Web site(http://www.wagehour.dol.gov/) or by
contacting the local Wage and Hour Division
office(http://www.dol.gov/whd/america2.htm).
The Department of Labor provides employers, workers, and others with clear
and easy-to-access information and assistance on how to comply with the
Immigration and Nationality Act. Among the many resources available is:
* Section H-2A of the Immigration Reform and Control
Act(http://www.dol.gov/whd/regs/compliance/whdfs26.pdf): This fact sheet
provides general information concerning the application of the H-2A
requirements to the agricultural industry.
Additional compliance assistance, including explanatory brochures, fact
sheets, and regulatory and interpretive materials, is available on the
Compliance Assistance "By
Law"(http://www.dol.gov/compliance/laws/comp-ina.htm) Web page.
DOL Contacts
Employment and Training Administration, Office of Foreign Labor
Certification(http://www.foreignlaborcert.doleta.gov/)
E-mail: ETApagemaster@dol.gov
Tel: 1-877-US2JOBS (1-877-872-5627) or 1-202-693-3010; TTY: 1-877-889-5627
Wage and Hour Division(http://www.dol.gov/whd/)
Contact WHD(http://www.dol.gov/whd/contactform.asp)
Tel: 1-866-4USWAGE (1-866-487-9243); TTY: 1-877-889-5627
+++++++++++++++++++++++++++++++++++++++++++++++++++
http://www.vdare.com/sanchez/091123_italian_welders.htm
November 23, 2009
Italian Welders Work On Dallas Bridge -- Texans Remain Jobless
By Rob Sanchez
The Trinity River Corridor Project, a major Dallas, Texas construction
project to build bridges over the Trinity River, is an example of what can
go wrong for American workers when work is outsourced to foreign-owned
companies.
The Margaret Hunt Hill Bridge was designed by Spanish architect Santiago
Calatrava, and most of the bridge s structures were imported from Italian
company Cimolai. Texas taxpayers will pay for it all, but the profits from
building the bridge will be sent overseas -- and Italians on temporary work
visas are getting the good paying construction jobs.
Watch this YouTube video to see raw video footage of the Italian steel
arriving at Port Houston and how it was transported by truck [another
video] to Dallas for the Margaret Hunt Hill Bridge.
Most news reports call the shipment "steel" but that word is highly
misleading. This is no shipload of steel ingots brought here to be melted
and turned into finished products. You will see in that video that "steel"
means girders, support columns, and many other high-value manufactured
components. They are enormous (some look like giant water heaters) and need
to hoisted by crane onto trucks to be shipped to the Trinity River Project.
All that needs to be done in the U.S. is to set these enormous pieces of
steel in place and weld them together like a giant erector set.
WFAA-TV and KHOU-TV published news reports that describe the tense labor
situation. Be sure to watch their excellent video reports because they have
information not reported on their text versions, notably more union and
worker reaction.
WFAA s report gives an early clue about who is doing some of the work:
"On the construction site in the Trinity River bottoms, an American
inspector told News 8: If you don t speak Italian, it s going to be
tough to communicate. " [Italians, not Texans, building signature Dallas
bridge, By Byron Harris, WFAA-TV, November 5, 2009]
Italian construction workers came to Dallas with nonimmigrant B-1 business
visas. That s creating quite a controversy over who should get these jobs
-- and the fact that using B-1 visas for this purpose is probably illegal.
Using the right visa is more than a matter of semantics. If the wrong visa
is issued, then the immigrant loses status, and technically becomes an
illegal alien.
In order to understand why B-1 is not the proper visa to use for this
purpose, refer to the U.S. Department of State Foreign Affairs Manual
Volume 9 [PDF]. The manual explains what types of jobs can qualify for B-1
visas and states that, when petitioners are not eligible for B-1, they may
be able to get H-2 visas (sort of like the H1-B visa, but for blue collar
workers.)
The B-1 visa is supposed to be used for people like managers and executives
(and whoever else doesn t actually do any real work, LOL!) This clause
from the manual should automatically disqualify the Italian welders
"Section 9 FAM 41.31 N10.4-2 Business or Other Professional or Vocational
Activities
"An alien who is coming to the United States merely and exclusively to
observe the conduct of business or other professional or vocational
activity U.S."
If that wasn t enough, the manual specifically excludes construction work
from B-1 visas:
"9 FAM 41.31 N10.1 Commercial or Industrial Workers
(CT:VISA-701; 02-15-2005)
"a. An alien coming to the United States to install, service, or repair
commercial or industrial equipment or machinery purchased from a company
outside the United States or to train U.S. workers to perform such
services.
"b. These provisions do not apply to an alien seeking to perform building
or construction work, whether on-site or in-plant. The exception is for an
alien who is applying for a B-1 visa for supervising or training other
workers engaged in building or construction work, but not actually
performing any such building or construction work." [Emphasis added]
Like so many of our visa programs, B-1 contains loopholes that are subject
to interpretation. Whenever laws are squishy, lawyers will find a way to
get around them -- in this case, Colombian-born Houston immigration
attorney Beatriz Trillos Ballerini uses section "a" to argue that the
Italian welders are installing foreign-made equipment, so they qualify for
B-1 visas.
Ballerini covers all bases, just in case somebody persists in asking her
why Italian welders need to be used -- she claims that the welders have
specialized skills that are specific to that bridge. But bureaucrats at the
U.S. consulate in Milan, Italy somehow approved the visas to "install"
(tsk!tsk!) the bridge, which proves that they don t read their own State
Department manuals. Dubious claims from Ballerini don t change the fact
that the proper visa to use is the H-2B.
So just how "specialized" are those Italian welders at Cimolai -- and how
well has outsourcing and offshoring worked out for Texas?
Here is a report about "un errore stupido" by those Italiano workers:
"TxDOT [Texas Department of Transport] officials admit that the Italian
workers actually welded the wrong ends of two sections of the bridge
together. They turned one of the boxes [a massive piece of support steel
on the bottom of the structure] around the wrong way, TxDOT inspector
Stan Ybarra told News 8. That happens. They re only human. "
In fact, Cimolai s B-1 workers are probably the least of the problems
from the company s point of view. In August, it announced that its steel
shipments are to be delayed by ten months.
TxDOT claims that the delays won t raise the cost of the project. But
that s only if the fixed priced contract with Cimolai is considered while
all the other expenses are ignored. Construction delays always end up
costing somebody something.
The much-acclaimed Spanish architect Santiago Calatrava hasn t had a
stellar Dallas performance either. Somehow, the Spaniard conned Dallas into
building a "bridge to nowhere", at least until recently-discovered problems
with the river levee are resolved. After Calatrava first designed the
bridge the lowest price bidder was $113 million, which was way over what
Dallas was willing to pay. Calatrava had to redesign the bridge to be less
costly by using cylindrical arches instead of heptagonal, and by
substituting PVC for steel drain pipes. This begs the question -- since he
is such a genius of an architect why didn t he design it right the first
time?
Outsourcing the bridge to save money was a bad idea. The other questionable
action was using B-1 visas improperly. But it s not clear that Cimolai or
any other contractor will pay a penalty for gaming the immigration system.
Why didn t the Italian company save themselves some trouble by using H-2B
visas?
The simple answer: B-1 visas are easier and quicker to obtain than H-2Bs
and there is no limit to the number of visas that can be issued.
The other, less obvious reason: H-2B regulations contain similar verbiage
to the H-1B program -- they both require a "good faith" effort by employers
to consider Americans first. Cimolai probably figured that H-2B could be a
tough sell in a depressed Dallas construction industry where qualified
American workers are plentiful. Nosy immigration investigators could be an
additional fly-in-the-ointment if they asked Cimolai why American welders
can t be found. B-1 visas have no such requirements to consider American
workers so the dangers of bad publicity are reduced -- or so Cimolai
thought!
(In a way, Cimolai was right. The immigration enthusiast Dallas Morning
News has reported problems on the project -- but has somehow not mentioned
the temporary worker scandal. See State report offers solutions for
concerns with Trinity River levees - but Army Corps must approve them, by
Michael A. Lindenberger, November 14, 2009)
It goes without saying that American welders who were hoping to find jobs
on that publicly funded $70 million project aren t too happy about losing
their jobs to foreign workers.
Recently the AFL-CIO has actually started making some noise about the use
of B-1 visas to hire foreign welders. It s refreshing to hear patriotic
talk coming from the unions -- for a change:
"But there are all kinds of ways to get around [visa safeguards] too, said
Michael Cunningham with the AFL-CIO. We have a lot of American workers
who could be using this work right now, especially with the high
unemployment in construction which is probably around 20 percent in this
state, he said."[Workers complain that immigrants use B-1 visas to steal
American jobs, KHOU.Com, November 19, 2009]
If Cunningham doesn t watch what he says he might be branded a xenophobe,
protectionist, or even worse things, like ANTI-IMMIGRANT! Or even racist!
Unfortunately for unemployed American welders in Dallas who are losing
their houses or can t feed their children, by the time anything can be
done in the court system, the Italian welders will be long gone -- with
lots of Euros in their pockets, to bask on the beaches of the
Mediterranean. Something should have been done to resist the outsourcing
before 2005 when the contract was given to a foreign owned company --
because offshoring and the importation of foreign workers are two sides of
the same coin.
Fortunately the unions have other opportunities to get American
construction workers back to work. That s because the Margaret Hunt Hill
Bridge is the first one of three bridges over the Trinity River to be
built.
But actions needs to be taken immediately to prevent Cimolai from using
foreign workers with impunity.
Unions and unemployed welders can t count on political support from the
city to solve the problem -- at least if the Mayor of Dallas, Tom Leppert
[Send him mail], gets his way. During the WFAA interview, he told
unemployed Dallas construction workers to eat cake:
"Although the bridge is a signature project for Dallas, Mayor Tom Leppert
said the lost jobs are not the city s problem. That one s being run
by TxDOT, so TxDOT s going to have to be the one to do the fact check,
the analysis, all of those sorts of things; they re going to have to be
approached. "
The one thing the union could do to solve the immediate problem of getting
those jobs back is to demand that the fraudulent B-1 visas be revoked on
the grounds that technically the Italian workers are illegal aliens.
For inspiration the unions could look to a recent story from India. Chinese
immigrants used fraudulent business visas to work and live there. The
Chinese workers were booted out of India, but only after persuasive mobs of
rioting local citizens demanded that their country s immigration laws be
enforced.
If angry Indian nationalists carrying clubs and sticks can do it, then
surely the AFL-CIO can figure out a way!
Rob Sanchez (email him) is a Senior Writing Fellow for Californians for
Population Stabilization and author of the "Job Destruction Newsletter"
(sign up for it here) at www.JobDestruction.com. To make a tax-deductible
donation to Rob Sanchez, click here.
+++++++++++++++++++++++++++++++++++++++++++++++++++
http://www.urbandictionary.com/define.php?term=jackpot+baby
anchor baby
When a foreigner or illegal alien (non-US citizen) comes to the USA to have
a baby for the purpose of making the baby a US citizen. The baby becomes a
US citizen giving the illegal alien/foreign parent and their family grounds
to come to and stay in the US and become eligible for government benefits.
Also called a "jackpot baby".
Maria, an illegal alien from Mexico, had her baby in the USA. Thanks to her
anchor baby, now she and her whole family can live in the US.
+++++++++++++++++++++++++++++++++++++++++++++++++++
http://www.computerworld.com/s/article/9141102/Tech_workers_take_H_1B_case_to_Supreme_Court
Tech workers take H-1B case to Supreme Court
Programmers Guild, others seek OK to challenge Bush-era foreign student
visa extensions
By Patrick Thibodeau
November 18, 2009 03:18 PM ET
Computerworld - After losing two lower court decisions, a group of tech
workers are turning to the U.S. Supreme Court in their fight against a
federal decision that extended foreign student visas from one year to 29
months.
The Programmers Guild and others involved in the lawsuit are contending
that the student visa extension approved by the Bush administration in 2008
was, in effect, a backdoor increase in H-1B limits that is cutting the
number of jobs available to U.S. workers.
The U.S. District Court in New Jersey and U.S. Court of Appeals in
Philadelphia each ruled against the tech workers, contending that they do
not have legal standing because they weren't directly affected by the
decision to extend student visas.
The group is now asking the Supreme Court to decide "whether American
science, technology, engineering and mathematics workers can challenge
changes to U.S. Department of Homeland Security regulations, which allow
aliens in those fields to work in the United States for an extended period
of time after graduation as 'foreign students.' "
The Programmers Guild is joined in the lawsuit by the American Engineering
Association, Inc., the Bright Future Jobs lobbying group and a number of
individuals identified in court papers as tech workers.
The group is challenging a visa program called optional practical training
(OPT). The Bush administration approved the extension in response the high
visa demand at the time and the subsequent backlog in H-1B applications.
The recession has subsequently curtailed demand and so far this year, only
about 66,000 visas have been received toward a cap of 85,000 visas.
In its decision, the Philadelphia appeals court said the plaintiffs "have
failed to allege facts establishing that their injuries are 'concrete and
particularlized' or 'actual or imminent' rather than 'conjectural or
hypothetical.'"
The U.S. Court of Appeals in Philadelphia has ruled against the tech
workers that have been fighting a federal decision to allow foreign
students to work on a student visa from one year to 29 months.
Whether American science, technology, engineering and mathematics workers
can challenge changes to U.S. Department of Homeland Security regulations
which allow aliens in those fields to work in the United States for an
extended period of time after graduation as "foreign students."
Read more about careers in Computerworld's Careers Knowledge Center.
+++++++++++++++++++++++++++++++++++++++++++++++++++
http://www.uscis.gov/files/article/tn_nonimmigrant_changes_update.pdf
USCIS Update Oct. 14, 2008
USCIS INCREASES PERIOD OF STAY FOR TRADE-NAFTA PROFESSIONAL WORKERS FROM
CANADA AND MEXICO
WASHINGTON U.S. Citizenship and Immigration Services (USCIS) has
increased the maximum period of time a Trade-NAFTA (TN) professional worker
from Canada or Mexico may remain in the United States before seeking
readmission or obtaining an extension of stay. This final rule changes the
initial period of admission for TN workers from one to three years, making
it equal to the initial period of admission given to H-1B professional
workers. Eligible TN nonimmigrants may now be allowed to receive extensions
of stay in increments of up to three years instead of the prior maximum
period of stay of one year.
The TN nonimmigrant classification is visa category available to eligible
Mexicans and Canadians with at least a bachelor s degree or appropriate
professional credentials who work in certain qualified fields pursuant to
the North American Free Trade Agreement (NAFTA). Qualified professions
identified within NAFTA include, but are not limited to, accountants,
engineers, attorneys, pharmacists, scientists, and teachers.
This final rule will ease administrative burdens and costs on TN workers.
It will also benefit U.S. employers by increasing the amount of time TN
nonimmigrants will be able to work for them before having to seek an
extension of status. Spouses and unmarried minor children of TN
nonimmigrants in their corresponding nonimmigrant classifications will also
benefit from the new regulation.
This improvement to the TN nonimmigrant category was initially announced by
Homeland Security Secretary Michael Chertoff and Department of Commerce
Secretary Carlos Gutierrez on Aug. 10, 2007. The effort is one of the 26
initiatives identified by President Bush s Administration to address
current immigration challenges using the tools and authorities available
under existing law.
For more information on the TN nonimmigrant visa program or to view the
final rule, visit the USCIS Web site or call the National Customer Service
Center at (800) 375-5283.
+++++++++++++++++++++++++++++++++++++++++++++++++++
http://www.capsweb.org/content.php?id=334&menu_id=8&menu_item_id=66
Thanks to feds, search for internships tougher
By Rob Sanchez
Commentary
East Valley Tribune
It's that time of year when college students are on the hunt for those all
important internships and jobs. Thanks to Homeland Security Secretary
Michael Chertoff, their job search just got a whole lot tougher.
Effective as of April 8, a new regulation to extend the Optional Practical
Training program was initiated by Chertoff, who was acting at the behest of
a group of senators calling themselves the Republican High Tech Task Force.
This bureaucratic fiat was pulled off without a vote or public debate, so
the senators involved won't be held responsible for this mean-spirited
attack on college-age students and young professionals; no public voting
record means no accountability.
Currently, foreign students in science, technology, engineering and math
(STEM), are allowed to work in the U.S. for 12 months by using the OPT
program. Students finishing their degree can continue to work in the U.S.,
but they must transition to other work visas such as H-1B before the
12-month period has expired. OPT is often used as an interim visa because
the available H-1B visas run out within days of each new fiscal year.
Under the new regulation, the time period for OPT was increased from 12
months to 29 in order to give foreign STEM students more time to remain in
the United States to work, study, and obtain H-1B visas. The extension is a
de facto increase in the number of H-1B visas, but its effects are
potentially more damaging.
Extending OPT will create a large pool of foreign students and graduates
that remain in limbo until they get an H-1B or green card. Neither OPT or
H-1B visas have provisions that require employers to favor qualified
Americans, but OPT is worse because there is nothing that requires payment
of fair salaries, and there are no upper limits on how many of them are
allowed to work in the U.S.
This year alone, the DHS estimates there are 70,000 foreign students and
graduates waiting in the queue for an extension. They hold jobs that tens
of thousands of American students desperately need. It's a simple numbers
game - Americans are forced to compete for a diminishing number of jobs
with thousands of students from foreign countries who are willing to work
for less.
So those who thirst for vast quantities of cheap and educated labor scored
a huge victory at the expense of American students who are sacrificed as
collateral damage in the war to improve corporate earnings. Students and
recent grads won't be the only ones to feel the effects of this "job
buster." It won't take long until professionals with several years
experience are shunned from jobs that are occupied with those who
transitioned from OPT status to H-1B. Expect a downward spiral of wages as
the flood of foreign STEM students work their way up the labor food chain.
Normally when a regulation is being considered, there is a period of public
comment to consider all sides of the issue. But this time there was no
debate. Buried deep within the 48-page regulation, the DHS circumvented
protocol by invoking the "Administrative Procedure Act," allowing
procedures to be ignored when issues are thought to be vital to the public
interest. So DHS makes the extraordinary claim that extending OPT is a
national emergency that's so urgent implementation can't wait for debate.
They elevated the issue to same level as a terrorist dirty bomb attack!
The DHS document contains a hyperbolic warning that any delays in
implementation of the regulation would result in "serious damage to
important interests." Unmentioned is the fact that Bill Gates recently
lobbied the Senate for an OPT extension and made audacious claims that the
future of high-tech depends on the ability of Microsoft to employ and
retain foreign students.
Perhaps the biggest problem with this regulatory activism is
constitutional. Article I, Section 8 of the U.S. Constitution states that
Congress shall have the power to "establish a uniform Rule of
Naturalization." By increasing the number of foreign students who can work
while they study, the DHS, which is part of the executive branch, is
trampling the jurisdiction of the legislative branch. This is another all
too common example of constitutional malfeasance under the Bush
administration that shouldn't be tolerated.
Rob Sanchez is a Chandler resident and is a senior writing fellow for
Californians for Population Stabilization (www.capsweb.org). He can be
reached at admin@jobdestruction.info.
Newsletter Homepage:
http://www.JobDestruction.com/shameh1b/JobDestructionNews.htm
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