Date: Tue, 19 Jun 2007 22:45:59 -0700 From: Norm Matloff To: Norm Matloff Subject: "gotcha" immigration law firm videos make a big splash To: H-1B/L-1/offshoring e-newsletter Recall that a set of videos was placed onto YouTube by a law firm that handles business immigration (and other) cases. They also placed a link to the videos on their own Web page. The conference itself is described at http://www.cohenlaw.com/news-events-134.html Apparently they thought this would be good advertising, but it is turning out to be a major embarrassment to them, as they unintentionally showed the world just how dirty the system is. It is also, as such, a major embarrassment to those who are pushing Congress for expanded H-1B and green card programs. As most of you know, my constant message over the years has been that abuse of the H-1B work visa and employer-sponsored green cards stems NOT from lack of enforcement of the law, but rather from LOOPHOLES in the law. Some fraud exists, yes, but the vast majority of abuse comes in full compliance with the law, due to the gaping loopholes. This set of videos gave a dramatic inside look at some of the loopholes, especially in the case of the employer-sponsored green cards. Here you have lawyers openly stating that their goals are to (a) help employers avoid hiring Americans, and (b) help employers hire foreign nationals on the cheap--and to do all this FULLY LEGALLY. In this posting: 1. I'll report on the news that the videos have now been removed from YouTube. 2. I'll give some more excerpts from the videos, so that you can get a closeup look at some of the loopholes. 3. I'll cite a quote from one of the firm's lawyers made to the press in one of the industry's many planted articles. You'll find that the contrast between his public claims and what he and others from the firm said in the conference is striking, and shows rank hypocrisy. 4. I will also enclose reports on the videos from InformationWeek, Computerworld (titled "H-1B Shocker") and Lou Dobbs Tonight. Before I get to that material, let me reiterate the importance of loopholes, which I regard as the central issue in H-1B and employer-sponsored green cards. Reform legislation currently being considered in Congress is missing the boat, as it deals mainly with anti-fraud measures, and addresses the loopholes only to a limited degree. OK, now to the videos. The conference was held by the firm of Cohen and Grigsby. One of the partners, Larry Lebowitz, is the moderator. Other lawyers from the firm who speak include Jennifer Pack, Matthew Phillips, Jennifer Barton, and Alex Castrodale. Let's start with some material near the end of video 9 of the set. To explain what is involved there, note first that although the law for employer-sponsored green cards requires that American workers must be sought before the employer resorts to hiring a foreign worker for a job (a requirement NOT in H-1B), this requirement is routinely circumvented. Though Computerworld called the video set described below as a "shocker," readers of this e-newsletter know, for instance, the outrageous comments by a well-known immigration attorney: "Employers who favor aliens have an arsenal of legal means to reject all U.S. workers who apply" (Joel Stewart, "Legal Rejection of U.S. Workers," Immigration Daily, April 24, 2000; available at www.ilw.com/articles/2000,0424-Stewart.shtm). See also Stewart's "Dear Abby"-style help column for employers, at http://www.ilw.com/articles/2006,0606-citations.shtm in which he advises an employer how to hire a foreign worker instead of an American applicant, even though the American "appears qualified and has good references." So when you read the material below, keep in mind that this is NOT a rogue law firm. Indeed, one of the firm's lawyers, John Brendel (who also speaks in the videos), was formerly Chair of the Immigration Policy Committee of the ITAA, the prominent industry lobbying group. What this firm is doing is LEGAL and STANDARD. Now, here is the theme of video 9. Lebowitz asks Pack to speak about the Dept. of Labor's PERM requirements for recruiting Americans for the job in question. Again, remember that the law on employer-sponsored green cards requires that an employer who wants to sponsor a foreign national for a green card must first try to recruit qualified Americans for the job. Lebowitz and Pack show how an employer can comply with the law while at the same time doing his best to NOT find a qualified American. One way to do that is to advertise in obscure places. Here's what Lebowitz says: # And our goal is clearly, not to find a qualified and interested U.S. # worker. And you know in a sense that sounds funny, but it's what we're # trying to do here. We are complying with the law fully, but ah, our # objective is to get this person a green card, and get through the labor # certification process. So certainly we are not going to try to find a # place [at which to advertise the job] where the applicants are the most # numerous. We're going to try to find a place where we can comply with # the law, and hoping, and likely, not to find qualified and interested # worker applicants. Those remarks immediately followed Pack's presentation on advertising venues, in which she said: # Fortunately, DOL gives 10 options, from which you can select three. As can be seen from Lebowitz's followup, Pack's meaning is that you select the three most obscure places you can find. Pack also recommends, # You can also advertise in local and ethnic newspapers, such as the # Pittsburgh Courier. The Courier is a black newspaper. While ordinarily placing ads there would be commendable minority outreach, here Pack obviously means to that one should choose that venue because of the anticipated small number of American applications it will generate. Yet they will receive some American applications, and in video 10 the firm then explains what to do with them--i.e. how to reject them. First, the employer can describe the applicant as not interested in the position! Barton says: # If they [the American applicant] don't like the salary, don't like the # work location, [we deem them to be] not interested...Those are ways # we can disqualify them, get them out of the market... Note the "don't like the salary" part. In the free market, employers would have to negotiate with applicants. But having access to foreign workers changes that. So here is one of many, many ways in which employers can hire foreign workers more cheaply than Americans--and remember, it's all FULLY LEGAL. Barton continues: # If it gets to the point where somebodys' looking like they're very # qualified, we ask [the employer] to have the manager of that specific # position step in and go over the qualifications with them--if necessary # schedule an interview, go through the whole process to find a legal # basis to disqualify them for this position--in most cases there doesn't # seem to be a problem. In other words, there is always a way to reject any American applicant, just as Stewart said. In video 12, the key issue of prevailing wage is discussed in detail. Remember, this applies to both employer-sponsored green cards and H-1B. Since the hiring of foreign nationals in either case is fundamentally about acquiring cheap labor, the loopholes here are especially important. The law states that the employer must pay the foreign worker at least the prevailing wage. This is defined in the law and regulations, and it is here where so many loopholes reside. Pack tells employers what to do if the prevailing wage they claim is deemed too low by the Dept. of Labor: # First, we have to remember that the wage offered to the [foreign] # employee is the wage the the employee will be earning when he or she # gets his or her green card, not the salary he'll be making now. So # if the prevailing wage comes back $3,000 or $4,000 higher than the # employee's actual salary, then we can estimate that it will probably # be three or four years until he gets his green card, then it is # reasonable for that employee's salary to be increased by that amount # at the time he gets his green card. Then we have no issues... This loophole is a new one to me, very interesting. Workers normally get raises each year, but the prevailing wage law/regs allow the employer to UNDERPAY the person for a few years! And there is an even more important subtlety here. Did you notice that she is projecting only a $3,000 or $4,000 raise over the course of three to four years? An American would get much higher raises than that. But the foreign worker is captive, a de facto indentured servant, so the employer can get away with giving him smaller raises than Americans. Pack then notes that the employer can try to find an alternate wage survey. Many critics of H-1B mistakenly cite this as the major reason why the legally required "prevailing wage" is typically well under the market wage. But actually, the next one cited by Pack can reap much larger savings for the employer. (That "projected future wage" method discussed above looks like it could be worked into a much larger bounty than $3,000 or $4,000 too.) # ...let's say [the government prevailing wage] is $10,000 or $15,000 # higher than the employee is going to be making, then we may want to # consider reworking our requirements, maybe scaling back from a Master's # degree to a Bachelor's, or going from five years of prior experience to # two This is a loophole I've mentioned many times. The key point is that the legal definition of prevailing wage is tied to the JOB, not to the WORKER. So if the job requires only a Bachelor's degree and a Master's would be just considered a plus, then prevailing wage is legally defined as the Bachelor's-level salary. In other words, the employer gets to hire a foreign worker with a Master's degree but pay him only a Bachelor's-level salary, again FULLY LEGALLY. As Pack mentions, the employer can then also hire a more-experienced foreign worker for the salary of a less-experienced American, again FULLY LEGALLY. This is also somewhat related to the age issue, which central to H-1B. Employers hire young H-1Bs (median age 27.4) instead of 40-year-old (i.e. more experienced) Americans. Castrodale notes that you should put in all the technical skills ("UNIX, SQL, SAP") that the job requires, in order to disqualify many of the American applicants. Now, he does not actually say that the employer should load up the job description with so many skills that the foreign national being sponsored is the only person in the world to qualify, but in practice this is often what is done. Even more importantly, this goes to the prevailing wage issue. Prevailing wage determination, either by government agency or by private wage survey, generally does NOT take into account "hot" technical skills. So, the employer can hire a foreign worker with hot skills but not have to pay him the hefty premium that those skills would command on the open market. Meanwhile, the employer can use that skill set to disqualify most or all of the American applicants. A double win for the employer, and a double whammy for the U.S. worker. Similarly, suppose the foreign worker has a degree from a prestigious university. On the open market, the employer would have to pay more for that, but not for H-1Bs and green card sponsorees--again due to the fact that the prevailing wage is determined by the JOB, not the WORKER. And remember, the above examples are only a few of the many giant loopholes in the law. Note that the regulation (20 CFR 655.731, http://www.dol.gov/dol/allcfr/ETA/Title_20/Part_655/20CFR655.731.htm) says that the employer must pay the higher of the prevailing wage and the actual wage. The latter is defined as follows: $ The actual wage is the wage rate paid by the employer to all other $ individuals with similar experience and qualifications for the $ specific employment in question. In determining such wage level, the $ following factors may be considered: Experience, qualifications, $ education, job responsibility and function, specialized knowledge, $ and other legitimate business factors. "Legitimate business factors," $ for purposes of this section, means those that it is reasonable to $ conclude are necessary because they conform to recognized principles $ or can be demonstrated by accepted rules and standards. Where there $ are other employees with substantially similar experience and $ qualifications in the specific employment in question -- i.e., they $ have substantially the same duties and responsibilities as the H-1B $ nonimmigrant -- the actual wage shall be the amount paid to these $ other employees. Where no such other employees exist at the place of $ employment, the actual wage shall be the wage paid to the H-1B $ nonimmigrant by the employer. So again, if most workers have only a Bachelor's degree, this can work out to a Bachelor's level salary or a little higher. Better yet, the phrase, "Where there are other employees with substantially similar experience and qualifications in the specific employment in question" obviously is a gigantic loophole; the actual wage is then simply the wage of the H-1B! For those of you readers who are journalists, Hill staffers, academics and so on, I hope you keep these videos in mind every time you see an immigration lawyer quoted in the press, saying that employers hire foreign workers only as a last resort when no Americans are available. Always keep in mind that, as you can see above, what they are really doing is helping employers AVOID finding American workers. There is a perfect example of this gross duplicity with that same law firm, in a quote of attorney Phillips of that firm. Here is an excerpt from Crush of Applicants for Visas Has Firms Fearing Staff Losses, Anya Sostek, Pittsburgh Post-Gazette, April 5, 2007: # The visas are so essential, they say, because there just aren't # qualified Americans to fill the jobs. # "If the numbers [of U.S. workers] were available in the economy, no # one would pay us to do this [visa application process]," said # Phillips, noting that in addition to legal costs, companies pay # thousands of dollars to the government for each visa application. I hate to use such a strong word as "lying," but what other conclusion can one come to? Phillips and the others are claiming to the press and to Congress that employers really try hard to find Americans before hiring foreign workers, while the videos from Phillips' firm show exactly the opposite. Concerning Phillips' citing of the legal costs, remember that employers are often saving $100,000 or more over the six-year span of an H-1B. (Green cards are often taking that long now too, an issue also discussed in the videos.) So the legal costs are minor in comparison to the amount saved. Unfortunately, the videos are no longer on YouTube. I wrote last Friday that as soon as the law firm got wind of the fact that their videos were being viewed and used by critics of the H-1B program, they would remove the videos from YouTube. As the enclosed article reports, that indeed happened yesterday afternoon. However, as of the moment, the Programmers Guild has an annotated excerpt of Part 9 of the video at http://www.youtube.com/watch?v=TCbFEgFajGU This is well worth watching, to get a feel as to how slimy (sorry to put it that way) these immigration lawyers actually are. You've got to hear these people's tones of voice, see their body language, etc., and above all see their complete lack of scruples, all in front of a crowd of people. The three items from the press follow below. Note that they do not always distinguish between H-1B and employer-sponsored green cards, so you have to be a bit careful, but since almost all of the green card sponsorees are H-1Bs, it doesn't really matter that much. [Update: To see subsequent my postings on this topic, see the files named LegalNewspaperViewOfTubeGate.txt, PittsburghYouTube.txt, TubeGateFirmReplies.txt and CohenAndGrigsbyPrevailingWage.txt, e.g. http://heather.cs.ucdavis.edu/Archive/LegalNewspaperViewOfTubeGate.txt] Norm InformationWeek YouTube Video On Avoiding U.S. Job Applicants Angers Programmers IT professionals criticize a law firm's video play-by-play description on how to circumvent the PERM process in favor of H-1B visas. By Mary Hayes Weier, InformationWeek June 18, 2007 http://www.informationweek.com/story/showArticle.jhtml?articleID=199905192 YouTube bites again. A law firm's attempt to get positive exposure for an immigration law conference by posting it on You Tube backfired when an organization that's been tough on H-1B visas and offshore outsourcing copied it and made a controversial video of its own. In the original video, posted by the firm Cohen & Grigsby from a May 15 conference, an attorney is shown advising attendees on how to meet the minimum requirements of advertising a job to U.S. candidates so that a foreign worker can more easily be hired. The firm's conference dealt with the U.S. government's labor certification requirement for foreign workers, the first step in helping them obtain green cards. The law requires that an employer prove there are no qualified U.S. citizens for a permanent job being offered before hiring a non-citizen. In one 10-minute segment of the conference video, a panel of lawyers are shown discussing Program Electronic Review Management (PERM), an electronic labor certification system the government put in place two years ago to reduce certification to under 60 days. It was that portion of the video lambasted by the Programmers Guild, an organization of IT professionals that is staunchly protectionist against the loss of U.S. jobs to foreign workers both onshore and offshore. The PERM process requires that an employer post a job in at least three places and allow 30 days for job candidates to respond for the employer to review resume. If no interested and qualified U.S. workers respond, an employer can instantly and electronically apply for a foreign worker's labor certification. In the video, a Cohen & Grigsby attorney advises attendees that posting the job at an employer's Web site and with a local newspaper is usually enough to fill the minimum requirement, if the newspaper also posts the job online. Another attorney, Lawrence Lebowitz, adds, "We're going to try to find a place [to advertise] where we are complying with the law and hoping, and likely, not to find qualified and interested worker applicants." A different firm attorney mentions less desirable methods that are more likely to pull in qualified and interested workers, including job fairs, online job sites like Monster.com, campus recruitments, and job placement firms. In its YouTube video, the Programmer's Guild accuses the firm of using fake job ads to fulfill the PERM process. "These ads constitute fraud on American job seekers," says the organization in its text leading into the video. Contacted at his Pittsburgh office the afternoon of June 18, Lebowitz said he was reviewing the matter with other partners in the firm and declined comment at this time. The law firm removed the conference video sometime between 4 p.m. and 5 p.m. Eastern daylight time on June 18. http://transcripts.cnn.com/TRANSCRIPTS/0706/19/ldt.01.html DOBBS: The government has a guest worker program. In fact, several of them. But you wouldn't know that listening to either President Bush or the Democratic leadership of the Senate. In fact, the United States government issues some 80 different types of visas and administers a half-dozen guest worker programs right now. As the Senate considers expanding the guest worker program, critics fear it will only offer employers even greater incentive to bypass American workers in favor of cheap, foreign labor. Further driving down wages and working conditions for Americans. Christine Romans has our story. (BEGIN VIDEOTAPE) CHRISTINE ROMANS, CNN CORRESPONDENT (voice over): There are a half-dozen guest worker programs meant to fill U.S. labor shortages with foreign labor. In this grainy seminar video posted on the file-sharing site YouTube, a Pittsburgh law firm on how to use loopholes to ensure foreign workers can get the jobs instead of Americans. LAWRENCE LEBOWITZ, VP MARKETING, COHEN & GRIGSBY: And our goal is clearly not to find a qualified and interested U.S. worker. ROMANS: The Programmer Guild, a high-tech worker advocacy group, spliced together several minutes of footage, including an apparent how-to for meeting minimum requirements for advertising a job. LEBOWITZ: So, certainly, we are not going to try to find a place where the applicants are going to be the most numerous. We're going to try to find a place again where we're complying with the law and hoping -- and likely not to find qualified and interested worker applicants. ROMANS: The seminar has since been removed. After repeated calls and e-mails, a spokeswoman for the law firm would only say the event was to educate their clients and would not confirm the substance of the seminar. It all comes as the debate over guest worker programs intensifies. SEN. CHUCK GRASSLEY (R), IOWA: Quite frankly, we have evidence that a lot of companies are using H-1B skilled worker program for illegal immigrants at the very same time that they could be hiring Americans. ROMANS: Senator Grassley has long been concerned about H-1B visa abuse, and recent congressional testimony highlighted humanitarian concerns in the H-2A and H-2B programs. RON HIRA, ROCHESTER INST. OF TECHNOLOGY: You try to control one set of misuse in one category, and employers will just adapt and go to another visa category and start to misuse those. ROMANS: He says employers are gaming the system. But advocates of guest worker program say they're essential for the economy, especially in agriculture, where more legal slots are needed. JAMES HOLT, AGRICULTURE ECONOMIST: We're talking about bringing the workers that are coming in now illegally into the United States in a legal, controlled program. And I'm -- I think anybody and everybody would be in favor of that. ROMANS: Fraud and abuse can be stopped, he says, if Congress allocates more resources and personnel. (END VIDEOTAPE) ROMANS: And now the Senate is considering revamping the entire system, giving Z visas for workers already in the country illegally and Y visas for those who want to come. But worker advocates fear a new system will only mean a new generation of loopholes -- Lou. DOBBS: I don't even know if we can call them "loopholes." I mean that's a pretty startling, straightforward statement that business and those that support business, the law firms and everyone else, they're just basically trying to screw the American worker. And to hear the Senate talking about its nonsense associated with this amnesty legislation. Couple of little facts that Bill Gates, wanting unlimited H-1B visas, the president saying you got to have a guest-worker -- the most tortured logic to come from the president's mouth, I think, is we can't secure our border without a guest-worker program. No one can construct any kind of reason from that statement. But there are two facts that people keep forgetting -- seven out of 10 visa requests under the H-1B program come from Indian companies in the United States to provide employees to outsource to American companies and reduce wages. And the other little minor item which is supposed to be high-skill jobs, four out of five jobs under the H-1B program are level-one jobs, not level four, i.e., low-skilled jobs, not high-skilled jobs. These are Americans trying to screw American workers. And it just is as plain, straightforward and can anyone convince any of us that the president of the United States and this Senate with this sham amnesty program isn't aware of these facts? ROMANS: Senators Grassley and Dick Durbin have actually sent a letter to the government. They've been asking some hard questions about the H-1B program and fraud and trying to make sure that any kind of loopholes are closed so we'll see how far they can get. DOBBS: Well, Durbin is supporting amnesty, Grassley is opposed to it. So 50 percent shot of some reason prevailing. At least in that instance. Perhaps higher if we see any kind of semblance of character and honesty in the days and weeks ahead. Christine, thanks for the illuminating report. Christine Romans. http://www.computerworld.com/action/article.do?command=viewArticleBasic&articleId=9025268&intsrc=news_ts_head Computerworld H-1B video shocker: 'Our goal is clearly not to find a qualified . . . U.S. worker' June 19, 2007 (Computerworld) -- The high-tech industry can tap big names, such as Microsoft Corp. Chairman Bill Gates, to argue that the U.S. needs more foreign workers with IT skills. But opponents of the H-1B visa program have a weapon that may prove just as effective: YouTube. The Programmers Guild, a professional organization based in Summit, N.J., has posted a video (see below) on YouTube Inc.'s Web site featuring excerpts from a series of videos that had been posted previously by Pittsburgh-based law firm Cohen & Grigsby PC. The law firm's videos were recorded May 15 during a seminar and apparently were intended to provide free legal tips to hiring managers and other viewers. But the video put together by the Programmers Guild is providing explosive material for H-1B critics. In the video, a person identified as Lawrence Lebowitz, an attorney at Cohen & Gribsby, explains a method that can be used for hiring foreign workers under the U.S. government's Program Electronic Review Management process. PERM stipulates requirements for placing help-wanted ads to fill job vacancies, with the intent of either hiring U.S. workers or showing that no qualified Americans are available. However, Lebowitz focuses only on the latter in the video. "Our goal is clearly not to find a qualified and interested U.S. worker," he says. "And that, in a sense, sounds funny, but it's what we are trying to do here." He adds that while "complying with the law fully," the objective is to get a prospective foreign worker a green card "and to get through the labor certification process." He and other panelists go on to explain the ways in which employers can legally reject applicants for positions in order to meet that goal. Lebowitz didn't answer calls to his office seeking comment on the matter, and a receptionist at Cohen & Grigsby referred calls to a public relations representative, who didn't return them. The Programmers Guild has added subtitled commentary and some music to the video to help dramatize key points. For instance, in one subtitle, the text asks: "If there were a 'shortage of U.S. workers,' would employers need to hire these immigration attorneys to help them avoid finding qualified candidates?" But John Miano, the group's founder and treasurer, said via e-mail that he wasn't surprised by what he saw. "There is nothing new here," he wrote. "We've known this has been going on for years. There have been printed accounts in the past, but the video makes the point much better." Miano added that he hopes people take away the message that "worker protections in the [H-1B] law are a joke. Here we see how blatant people are about getting around them." Last year, the Programmers Guild filed complaints with the U.S. Department of Justice against hundreds of IT employers that it claimed were discriminating against U.S. citizens and permanent residents by placing help-wanted ads that specifically seek "H-1B only" visa holders or workers who have student or L-1 visas.