Date: Tue, 5 Aug 2003 14:13:31 -0700 From: Norm Matloff To: Norm Matloff Subject: eWeek article To: age discrimination/H-1B/L-1 e-newsletter A few comments on the enclosed article: At a Capitol Hill hearing this week, the Information Technology Association of America released a paper that urges reform of the controversial L-1 visa program. This is the first time the ITAA has EVER conceded that there are any problems at all with H-1B/L-1. Maybe this is a sign that Congress may do something this year after all. Maybe. But critics of the program claim that a loophole allows IT consultancies with operations overseas to import foreign workers and then contract them out to U.S. companies, which are not required by law to pay L-1 visa holders prevailing U.S. wages. Some laid-off IT workers claim they have even had to train their foreign replacements. This is really irritating. The contracting out is IRRELEVANT. In the Siemens/Tata case, where Tata contracted out its L-1s to Siemens, would NOT be "OK" if Siemens had imported L-1s directly from its own Indian subsidiary (which it also did). The impact on American workers is the same either way--the Americans lose their jobs to cheap foreign labor. Thus the focus on the contracting out of the L-1s is highly misleading, and I suspect that this is deliberate on the politicians' part. Also, as I have mentioned, the passage above makes it sound like H-1B is fine, i.e. that L-1 is the only problem. The fact is that H-1B suffers from the same problems, including the prevailing-wage issue, due to huge loopholes. Aiming to prevent such misuse, the ITAA paper seeks to clarify what qualifies as "specialized knowledge" in the IT industry. Knowledge of ubiquitous database management systems, operating systems or software languages such as COBOL, C++, and Java are not examples of specialized knowledge, according to the ITAA. But "advanced knowledge of an employer's special process or methodology that is not generally held throughout the industry could be considered specialized knowledge and would be an acceptable case for applying for an L-1 visa," the ITAA said in a statement. Of course, what the ITAA is referring to is Tata's "secret software," Recall the following excerpt from the Dallas Morning News, June 15, 2003, in my e-newsletter posting titled, "TCS Lets the Cat Out of the Bag" (http://heather.cs.ucdavis.edu/Archive/TataSpecialSW.txt): India-based Tata Consultancy Services uses the L-1 visa program to transfer employees to the United States and send them out on consulting projects across the country. The primary reason is that its workers in India are trained in Tata software - training not available to U.S. workers, said resident manager of personnel Girish Surendran. Like the secret sauce on a hamburger, no one knows what this secret Tata software is, but as I've mentioned before, I believe it is likely to be some sort of project management checklist related to Tata's use of the CMM "twelve step program" for software development management. In other words, it is not necessary to the technical completion of the work. Indeed, how could it be? Tata does outsourcing work for virtually every kind of software project, so there is no way that technical software they might have would apply to all the projects. In any case, as you can see, the ITAA's idea of "reform" is actually to protect their MEMBERS, such as Tata, rather than to protect American workers. Also speaking before lawmakers Tuesday was Cornell Law School professor Stephen Yale-Loehr, an immigration expert who claims that alleged abuses of the L-1 visa program have been exaggerated. I am really getting tired of seeing this about Yale-Loehr. He is only a part-time professor at the school, and in actuality is a practicing immigration lawyer with major vested interests in the H-1B/L-1 programs. http://www.eweek.com/print_article/0,3668,a=45701,00.asp August 1, 2003 ITAA Urges L-1 Visa Reform By Shelley Solheim At a Capitol Hill hearing this week, the Information Technology Association of America released a paper that urges reform of the controversial L-1 visa program. The ITAA seeks to prevent misuse of L-1 visas, which some IT workers say have cost them their jobs. "The L-1 program is critically important to U.S. multinational information technology firms as they compete globally," ITAA President Harris Miller said in a statement released along with the report titled "Proposed Guidance on L-1B Specialized Knowledge." "However, as with any complex immigration program, we see some possible areas of improvement in its administration by the Departments of State and Homeland Security to insure that legitimate users have access and to prevent possible abuses," the statement continued. The L-1 visa program was created to allow multinational companies to temporarily transfer employees with specialized skills from their foreign subsidiaries, affiliates or parent companies to work on special projects in the United States. But critics of the program claim that a loophole allows IT consultancies with operations overseas to import foreign workers and then contract them out to U.S. companies, which are not required by law to pay L-1 visa holders prevailing U.S. wages. Some laid-off IT workers claim they have even had to train their foreign replacements. Aiming to prevent such misuse, the ITAA paper seeks to clarify what qualifies as "specialized knowledge" in the IT industry. Knowledge of ubiquitous database management systems, operating systems or software languages such as COBOL, C++, and Java are not examples of specialized knowledge, according to the ITAA. But "advanced knowledge of an employer's special process or methodology that is not generally held throughout the industry could be considered specialized knowledge and would be an acceptable case for applying for an L-1 visa," the ITAA said in a statement. The ITAA released its paper at a hearing on Capitol Hill Tuesday, where lawmakers had gathered to hear testimony from both sides of the L-1 visa debate. One of the witnesses who testified before the Senate Committee on the Judiciary Subcommittee on Immigration and Border Security was Patricia Fluno, a computer programmer from Orlando, Fla. A former Siemens ICN employee, Fluno claims that she was replaced by a foreign worker when Siemens outsourced her job and others to Tata Consulting Services, of India. Even worse, Fluno said, she was instructed to train her replacement. "This was the most humiliating experience of my life," Fluno told lawmakers. "Our visa-holders replacements are sitting at our old desks, answering our old phones, and working on the same systems and programs we did ... but for one-third the cost." Also speaking before lawmakers Tuesday was Cornell Law School professor Stephen Yale-Loehr, an immigration expert who claims that alleged abuses of the L-1 visa program have been exaggerated. But according to the U.S. State Department, the number of L-1 visas issued has steadily increased year-over-year for the last decade-- except for the period from 2001 to 2002. The latest statistics indicate that this growth will likely continue in 2003. For the first six months of 2003, 28,098 L-1 visas were issued, compared with 26,304 for the same year-ago period, according to State Department spokesman Charles Oppenheim. Yale-Loehr said he also was concerned that if Congress enacts too severe restrictions on the issuance of L-1 visas, "multinational firms may conclude that it is too burdensome and unprofitable to do business in this country--a decision that would directly result in the loss of employment for many U.S. workers." Several lawmakers have proposed legislation in recent months that would impose new restrictions on the L-1 visa program. Last week, Sen. Chris Dodd, (D-Conn.) and Rep. Nancy Johnson (R-Conn.) introduced mirror versions of The U.S.A. Jobs Protection Act of 2003 in the Senate and House, respectively. The bill would, among other things, extend the time workers must be employed with companies before transferring to the United States on an L-1 visa, reduce the time L-1 workers can remain in the United States, and require that these workers be paid prevailing wages. Also under the bill, U.S. employers would have to make a documented, "good faith" effort to first fill the position with an American worker. Additionally, the bill would extend the Labor Department's authority to investigate potential violators of the law and to impose sanctions. ----- End forwarded message -----