More evidence of dysfunctional immigration policy

While most Americans spent this past weekend relaxing and enjoying the first days of spring, in the personnel offices of Microsoft, and Infosys and in countless immigration attorney's offices across the country, the yearly frenzy of the H-1b work-visa filing deadline was fast approaching. Many, like San Francisco attorney Gali Schaham Gordon, spent Saturday putting the final touches on the up to 50 pages of forms sometimes required for each applicant.

By the end of the Monday deadline, representatives of the USCIS said the agency had received a record 150,000 applications for the 65,000 visas available for the 2008 federal fiscal year.

Since the yearly cap was hit in one day, immigration officials announced they would accept all the applications filed Monday and Tuesday and place them in a computer-generated lottery to determine who will receive the visas, which are reserved for architects, engineers, computer programmers and other high -skilled workers.

The visa program, which claims to insure that the "best and brightest" from around the world have an opportunity to work in America and eventually become citizens, was reduced in less than 24 hours to a random lottery.

Herein lies an example of the underlying dysfunctional nature of the current immigration system.

Programs, which at face value look totally rational and in fact beneficial, turn out, due to incompetence, abuse, and a lack of true regulation and oversight, to be ineffectual to the point of being detrimental to both the immigrants and the American people.

Started in 1990, the H1b visa program was supposed to allow those with special skills, higher education, and technical expertise to enter the country legally to work and eventually receive permanent residency and citizenship. It was touted as the best way to assure that a future Einstein would not be turned away at the border. This is particularly true in the case of those foreign students who make up half of the graduates of US universities with degrees in engineering and mathematics.

But what has happened in the years since it's inception has nearly insured that the truly "best and brightest" would in fact be turned away, or at best be placed in an immigration limbo of endless paperwork, long waits and lotteries. Utilizing a first-come first-served system to issue the visas, last years quota ran out in eight weeks… this year…it took less than a day.

In the meantime, an ever increasing number of corporations use the program, and it's lack regulation and oversight, to pad their workforce with temporary workers earning lower wages with little or no legal recourse. Despite claims of portability and competitive wages, many H-1b holders are locked into jobs that pay below market standards with little chance of mobility to find other employment. They are in essence "owed" by those who sponsor them since changing employers forces those trying to get green cards to start the whole process over again with a new sponsor, a process that can take years of paperwork and bureaucratic red tape.

Yet some businesses love the program. Bill Gates regularly makes pilgrimages to Washington to lobby for increased guest-workers for Microsoft even though about one-third of his 46,000 U.S.-based employees have work visas or are former H1b holders who are now legal permanent residents with green cards, according to company spokeswoman Ginny Terzano. Other tech companies are estimated to use guest workers to fill nearly half their employment needs. Since both the H-1b visas, and the employment based green cards that result from them, are limited each year by quotas, the companies that over-utilize them in effect hold a monopoly over the immigration system.

Surely the intent of the program was not to concentrate larger and larger numbers of temporary workers in an ever-decreasing pool of employers. We have no idea yet how many of the 150,000 applications that flooded the USCIS offices on Monday came from Infosys Technologies, Microsoft and Deloitte & Touche, three of the largest users of H-1Bs according to the Department of Labor's office of foreign labor certification, but it's safe to assume they were once again well represented.

Besides the inherent inequity in the program for the immigrants who rely on H-1b visas to live and work in the country, opponents of the program claim that abuses of the system have allowed corporate sponsors to eliminate older, high-paid US workers to be replaced by cheaper foreign labor. Similarly, smaller US companies see the program as not meeting their needs due to its inefficient implementation.

The current H1-B quota is 65,000, but a series of exemptions make that a soft number. In 2005, the most recent year for which data are available, the U.S. approved 116,927 H1-B visas.

By law, such temporary work permits are normally issued to persons who hold at least a bachelor's degree. Government data show roughly half of people holding H1-Bs meet that minimum. The other half have master's degrees or better, although high school dropouts with vital experience can qualify -- which happened in 2003 when 117 fashion models won H1-B visas.

H1-B work permits run on a fiscal year that begins Oct. 1. Immigration officials say Monday is the soonest they'll accept applications, and employers fear that if they don't file their applications as soon as possible, this first-come, first- served system will exhaust its quota quickly.

…snip…

A similar rush last year forced Seth Sternberg, chief executive of Meebo, to delay some hiring plans. Meebo, a Mountain View developer of a Web site for instant messaging from anywhere, had hoped to add two foreign programmers to its 15-person staff last year. On May 27, the startup filed the paperwork to hire the two people, one from the United Kingdom and the other from Italy. But it turned out that last year's quota had been exhausted the day before Meebo's requests arrived.

"We'll have those applications ready to go day one," Sternberg said last week. He plans to resubmit the visa requests to hire those two same code warriors starting this October

Such frustrations have made an overhaul of the H1-B system a top priority of high-tech leaders.
…snip…

But H1-B critics -- led by older American-born programmers and their academic allies -- say even if U.S. high-tech firms need employees from overseas to stay competitive, the program is flawed in a way that leads to the loss of jobs through outsourcing.

…snip…

… those opposed to lifting the H1-B cap say the present program gives employers all the tools they need to absorb the highly skilled foreign graduates that tech officials talk about, and complain -- with justification -- that the so-called cap of 65,000 is a fiction.

A November report from U.S. Citizenship and Immigration Services puts the basic quota of H1-Bs at 65,000. But the law also says the first 20,000 H1-B applications filed for any masters' degree candidate or higher do not count against that quota. So that gets the number to 85,000. The report adds that "petitions for new H1-B employment are exempt" for foreigners hired to work at universities, nonprofit research institutions or governmental laboratories, and that would push the cap above 85,000.

According to the report, the United States approved 103,584 H1-B visas in fiscal year 2002; 105,314 in 2003; 130,497 in 2004; and 116, 927 in 2005.

"It sure looks like they're issuing a hell of a lot more visas than they ought to be," said John Miano, an attorney and H1-B critic from New Jersey.

If hiring the best and brightest is the goal, Miano said, the data show that the current program misses the mark because it awards most H1-B visas to people with bachelor's degrees (45 percent in the most recent year, down from 49 percent the prior year) who come from low-wage countries (India tops at 44.4 percent, China second at 9.2 percent).

Sacramento software engineer Kim Berry, president of the Programmers Guild -- which he describes as "disproportionately over age 40 and disproportionately underemployed" -- said it's tough for U.S. tech workers to see jobs going to H1-Bs.

San Francisco Chronicle

The recently introduced "Security Through Regularized Immigration and a Vibrant Economy (STRIVE) Act", the House bill, sponsored by Reps. Luis V. Gutierrez (D-Ill.) and Jeff Flake (R-Ariz.), includes a provision to lift the cap on H-1b visas to 115,000 as part of a comprehensive overhaul of immigration law. But without any real improvements in regulation and enforcement of the program, the STRIVE Act as currently written would only exacerbate an already bad situation.

Both the H-1b program and its companion, the H-2A agricultural guest worker program, have thus far been dismal failures. The same should be expected of the proposed H-2C guest worker program that would allow for 400,000 unskilled and non-specialty workers to enter the country.

The fatal flaw in all these temporary work programs is a glaring lack of regulation, government oversight, enforcement of labor laws and safety regulations, accountability and administration. Thus far the programs already instituted have been abused and misused by employers to the detriment of both immigrant and US workers.

On Monday, as USCIS sorted through an avalanche of H-1b applications, in Washington, Senators Richard Durbin and Chuck Grassley introduced the "H-1B and L -1 Visa Fraud and Abuse Prevention Act of 2007", a bipartisan effort to address the problems of the guest worker program.

The 32-page Senate bill would impose a host of additional obligations on employers. They would be required to pledge that they made a "good faith" effort to hire an American before taking on an H-1B worker and that the foreigner was not displacing a prospective U.S. worker.

Employers would also have to advertise job openings for 30 days on the Department of Labor's Web site before making H-1B visa applications, and they would be prohibited from advertising positions only to H-1B holders.

In addition, companies with 50 or more workers would not be allowed to employ more than half of their staff through H-1B visas.

In an attempt to discourage employers from hiring foreigners at lower wages than their American counterparts would command, employers would have to pay all H-1B workers the "prevailing wage," as calculated by a different method that raises the minimum to a higher level than it currently stands.

The proposal also aims to beef up the Department of Labor's authority to investigate abuses, giving the department the power to conduct random audits on employers, to review applications for "clear indicators of fraud," and to hire 200 additional employees to administer, oversee and enforce the H-1B program.

Grassley described the bill as aimed at "closing loopholes that employers have exploited by requiring them to be more transparent about their hiring and...ensuring more oversight of these visa programs to reduce fraud and abuse."
Cnet.com

Although a step in the right direction, Senators Durbin and Grassley's proposal still falls short of the kind of real protections needed if any guest worker program is to work. Its worker protections, requirements to qualify for guest workers, and protections of US workers still leave much to be desired.

If in fact we must accept the idea that immigrant workers must be "tried out" on a temporary basis before they are allowed to join the workforce permanently in order to put together a political coalition willing to address immigration reform in any meaningful way, then we must demand that it be done correctly. The protections afforded by the Durbin bill are a good starting point…but far more needs to be done.

Enforcement of ALL labor laws MUST go beyond 200 inspectors looking for guest worker violations.

Any company applying for as little as one guest worker should be required to meet and/or exceed all labor, occupation safety, and workplace regulations.

Just as many businesses must have yearly licensing and inspections by agencies such as the health department or other regulatory bodies, any business employing guest workers should be required to undergo periodic inspection and licensing by the DOL, OSHA, and all other pertinent labor regulatory agencies in order to continue utilizing the program. Those who do not comply should not only face the penalties already in place for workplace violations but have additional harsh penalties placed upon them in regards to guest worker abuse.

Enforcement of labor standards must be the cornerstone on which any sort of guest worker program is accepted.

If we must accept compromises in order to intact meaningful immigration reform, then those compromises must be made by ALL concerned. To ask workers, both immigrant and native-born to accept guest worker programs without true oversight and regulation, while business is allowed to continue as usual should be deemed unacceptable.

If in fact, businesses need these workers on a temporary basis to fill labor needs as they claim, they should be more than willing to assure that they are doing so within the guidelines of new tough, but fair, regulation. If they oppose such regulation and oversight it can only be because they wish to exploit both US and immigrant workers. … It's as simple as that.

Related:
Demand for H-1B visas exceeds limit, San Jose Mercury News

U.S. reaches 2008 cap for skilled-worker visa petitions in single day, Seattle Times

U.S. Companies Race to Fill Quota of Coveted Technology Worker Visas, Washington Post

Statement by AFL-CIO President John J. Sweeney on the Introduction of the H-1B and L-1 Visa Fraud and Abuse Prevention Act


Senate bill gives Americans preference for tech jobs, Cnet.com

Tech firms scramble for visas, San Francisco Chronicle

Overveiw of STRIVE Act, Migra Matters

Southern Poverty Law Center finds guest worker program close to slavery, Migra Matters

tags: immigration, STRIVE Act , H1b visa, guest workers, h2a visa, H.R.1645

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Southern Poverty Law Center finds guest worker program close to slavery

There is no more divisive issue for advocates of progressive immigration reform than the policy of temporary guest workers. As a cornerstone the President's proposed immigration policy, it's been viewed with intense suspicion by many on the left. Some immigration rights advocates, such as Cecilia Muñoz, head of National Council of La Raza see Bush's guest worker program as the best hope to allow future immigrants to enter the country legally and eventually be put on a path to citizenship. Other's see it as dangerous policy, ripe with opportunities for abuse.

Even amongst organize labor, which generally supports legalization of all current undocumented workers and other progressive reforms, there is a divide when it comes to guest workers. The Service Employees International Union (SEIU) has strongly advocated for a modified guest worker program, while the AFL-CIO opposes one.

The Southern Poverty Law Center now weights in on the debate with a report that examines the current H2 visa program which brought approximately 121,000 guestworkers into the United States in 2005. The report released this week called; "Close to Slavery" found widespread abuse and exploitation of the program.

Back in January, Andy Stern, head of the Service Employees International Union, sent a letter to Sen. Ted Kennedy, who is working to craft a new immigration reform bill for this legislative session, laying out his union's position on immigration reform and recommendations for any future guestworker program:

SEIU recognizes the need for new workers in the low-wage sector of our expanding economy. However, any new worker program must include worker protections including: portability of visas so that workers can change jobs, the right to join unions and have full labor rights, the right to bring their families with them, and the ability to self-petition for permanent residency and citizenship. SEIU

But according to the SPLC, without carefully written protections and strict enforcement of labor standards any new guest worker program will be ripe for the same kind of exploitation that's prevalent in the current system. Based on interviews with thousands of guestworkers, the report found a pattern or widespread exploitation, deplorable living conditions, and a system that amounts to little more than indentured servitude.

… the United States already has a guestworker program for unskilled laborers — one that is largely hidden from view because the workers are typically socially and geographically isolated. Before we expand this system in the name of immigration reform, we should carefully examine how it operates.

Under the current system, called the H-2 program, employers brought about 121,000 guestworkers into the United States in 2005 — approximately 32,000 for agricultural work and another 89,000 for jobs in forestry, seafood processing, landscaping, construction and other non-agricultural industries.

These workers, though, are not treated like "guests." Rather, they are systematically exploited and abused. Unlike U.S. citizens, guestworkers do not enjoy the most fundamental protection of a competitive labor market — the ability to change jobs if they are mistreated. Instead, they are bound to the employers who "import" them. If guestworkers complain about abuses, they face deportation, blacklisting or other retaliation.

Federal law and U.S. Department of Labor regulations provide some basic protections to H-2 guestworkers — but they exist mainly on paper. Government enforcement of their rights is almost non-existent. Private attorneys typically won't take up their cause.

Bound to a single employer and without access to legal resources, guestworkers are:

• routinely cheated out of wages


• forced to mortgage their futures to obtain low-wage, temporary jobs


• held virtually captive by employers or labor brokers who seize their documents


• forced to live in squalid conditions


• denied medical benefits for on-the-job injuries.

Close to Slavery; Guestworker Programs in the United States SPLC (HTML)

After carefully documenting the failures of the current guestworker program, the 48 page report goes on to list recommendations to make any future program more fair and effective.

As this report shows, the H-2 guestworker program is fundamentally flawed. Because guestworkers are tied to a single employer and have little or no ability to enforce their rights, they are routinely exploited. The guestworker program should not be expanded or used as a model for immigration reform. If this program is permitted to continue at all, it should be radically altered to address the vast disparity in power between guestworkers and their employers.

I. Federal laws and regulations protecting guestworkers from abuse must be strengthened:

• Guestworkers should be able to obtain visas that do not tie them to a specific employer. The current restriction denies guestworkers the most fundamental protection of a free labor market and is at the heart of many abuses they face.


• Congress should provide a process allowing guestworkers to gain permanent residency, with their families, over time. Large-scale, long-term guestworker programs that treat workers as short-term commodities are inconsistent with our society's core values of democracy and fairness.


• Employers should be required to bear all the costs of recruiting and transporting guestworkers to this country. Federal regulations should be consistent with the 11th U.S. Circuit Court of Appeals decision in Arriaga v. Florida Pacific Farms. Requiring guestworkers to pay these fees encourages the over-recruitment of guestworkers and puts them in a position of debt peonage that leads to abuse.


• Entities acting as labor brokers for employers that actually use the guestworkers should not be allowed to obtain certification from the Department of Labor to bring them in. Allowing these middlemen to obtain certification shields the true employer from responsibility for the mistreatment of guestworkers.


• Congress should require the Department of Labor to promulgate labor regulations for H-2B workers that are comparable to the H-2A regulations. It is unconscionable that H-2B workers do not have even the minimal protections available to H-2A workers.


• Congress should require employers to pay at least the "adverse effect wage rate" in all guestworker programs to protect against the downward pressure on wages. Guestworker programs should not be a mechanism to drive wages down to the minimum wage.


• Congress should eliminate the barriers that prevent guestworkers from receiving workers' compensation benefits. Workers currently must navigate a bewildering state-by-state system that effectively blocks many injured workers from obtaining benefits.
• Guestworkers should be protected from discrimination on the same terms as workers hired in the United States. Permitting employers to "shop" for workers with certain characteristics outside of the United States is offensive to our system of justice and nondiscrimination.

II. Federal agency enforcement of guestworker protections must be strengthened:

• Congress should require that all employers report to the Department of Labor, at the conclusion of a guestworker's term of employment and under penalty of perjury, on their compliance with the terms of the law and the guestworker's contract. There currently is no mechanism allowing the government to ensure that employers comply with guestworker contracts.


• Employers using guestworkers should be required to post a bond that is at least sufficient in value to cover the workers' legal wages. A system should be created to permit workers to make claims against the bond. Guestworkers, who must return to their country when their visas expire, typically have no way of recovering earned wages that are not paid by employers.


• There should be a massive increase in funding for federal agency enforcement of guestworker protections. Guestworkers are the most vulnerable workers in this country, but there is scant government enforcement of their rights.


• The Department of Labor should be authorized to enforce all guestworker agreements. The DOL takes the position that it does not have legal authority to enforce H-2B guestworker contracts.


• The Department of Labor should create a streamlined process to deny guestworker applications from employers that have violated the rights of guestworkers. Employers who abuse guestworkers continue to be granted certification by the DOL to bring in new workers.

III. Congress must provide guestworkers with meaningful access to the courts:

• Congress should make all guestworkers eligible for federally funded legal services. H-2B workers are currently not eligible for legal aid services.


• Because of the unique challenges faced by guestworkers, the restriction on federally funded legal services that prohibits class action representation should be lifted.


• Congress should provide a civil cause of action and criminal penalties for employers or persons who confiscate or hold guestworker documents. This common tactic is designed to hold guestworkers hostage.


• Congress should provide a federal cause of action allowing all guestworkers to enforce their contracts.

These reforms are overdue. For too long, our country has benefited from the labor provided by guestworkers but has failed to provide a fair system that respects their human rights and upholds the most basic values of our democracy. The time has come for Congress to overhaul our shamefully abusive guestworker system.
Close To Slavery; Guestworker Programs in the United States SPLC (PDF)

This new report, along with its recommendations, will certainly add a new dimension to the debate over any new temporary guest worker proposal. By documenting and examining what has happened when, as President Bush likes to claim, "willing foreign workers (are matched) with willing American employers, when no Americans can be found to fill the jobs," the Southern Poverty Law Center has provided valuable insight into the problems and pitfalls of such programs.

tags: immigration, guest workers , H2 Visa, SPLC

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