Thousands of Visas Later ... Worker Program Under Fire by Robert Gebeloff Copyright: The Record, March 23, 1995 Reprinted with permission of The Record of Hackensack, NJWhen Larry Richards facetiously applied to bring 30 foreign computer programmers into the United States---and pay them $5 an hour---the U.S. Labor Department bureaucracy gave him a rubber-stamp OK.
To Richards, a lobbyist trying to reform U.S. immigration law, it was a perfect example of what wrong with the government's H1-B visa program, a system intended to prevent companies from bringing in groups of low-paid foreign workers to compete with American laborers.
Technically, the approval of the application was in compliance with the program, but it was obviously against the spirit of H1-B. The approval also showed that, in a massive bureaucracy, just about any application can get approved.
"The problem is that there is so little with the H1-B program that is illegal," says Richards, a former International Business Machines Corp. worker from Texas who quit to form the Software Professionals' Political Action Committee. "And there is no checking going on at all, either."
The H1-B program, created by Congress in 1990 to establish a mechanism for companies to hire foreigners for jobs in which there was a shortage of U.S. citizens, reached new heights of popularity in 1994.
Although the INS grants only 65,000 visas annually under the program, the Labor Department certified application from domestic companies to import about 270,000 foreign workers last year.
That is about what the Labor Department had certified in 1992 and 1993 combined.
Under the program, companies that want to bring in "highly skilled" foreign workers for up to five years must apply to the Labor Deptartment, listing the number of workers, their occupations, and the wages.
If the Labor Dept. certifies the application, the company can then apply to the INS for the visas.
But as Richards' case illustrates, the federal government uses the honor system to enforce key components of the program.
One main provision of the H1-B law is that companies pay immigrant workers at least the prevailing wage for the occupation - and most computer programmers make at least $20 an hour, not $5.
A controversy over this issue erupted in North Jersey last year when the American International Group, a large insurance company, eliminated 130 computer-programming jobs in Livingston and transfered them to H-1B workers at its North Carolina data center.
Employees told The Record the immigrant workers would make about half what AIG paid them. And although the insurer wouldn't comment on the situation, the Labor Dept. confirmed that it is investigating Syntel Inc. of Michigan, the company AIG hired to provide the foreign workers.
H-1B supporters, however, argue that the vast majority of H-1B workers enter the United States within the full spirit of the law. The domestic labor pool does not supply enough qualified employees in occupations such as foreign-language teaching and engineering.
"What H-1B did was strengthen and add protections for workers," says Elissa McGovern, a policy analyst for the Washington-based American Immigration Lawyers Association. "It ensured that these immigrant jobs weren't going to harm U.S. workers."
What about the 130 programmers who lost their jobs at AIG?
Although not aware of all the details in the AIG case, McGovern says one possible justification is semantics. The law says companies cannot use H-1B to "adversely affect" domestic workers. But critics could argue that this protection does not apply to domestic workers after they get laid off because, technically, they no longer qualify as workers once they become unemployed.
"There is an argument that because they are laid off, they aren't adversely affected," she says. "Are workers 'U.S. workers' anymore after they've been laid off?"
All of this is being scrutinized this year by the U.S. Commision on Immigration Reform, which has been holding periodic hearings on H-1B. The commission, headed by former U.S. Rep. Barbara Jordan, may recommend changes to Congress later this year.
Meanwhile, new regulations imposed by the Labor Department give the agency more power to initiate investigations of H-1B abuse. Yet even these new powers may be nipped in the bud by a movement in Congress to impose a moratorium on all agency regulations imposed since last fall's election.