Date: Thu, 12 Jul 2007 22:51:23 -0700 From: Norm Matloff To: Norm Matloff Subject: H-1B lawsuit unwittingly exposes the loopholes in the system To: H-1B/L-1/offshoring e-newsletter As some of you know, there has been a stir in the last week or so over an apparent miscommunication between the Dept. of State, which issues green card visas, and the USCIS (formerly INS), which processes applications for the visas. An H-1B worker has filed suit (details below), claiming that her wait for a green card is being unfairly lengthened, and a foundation sponsored by the immigration lawyers association is preparing to sue as well. I suspect that there will be some resolution soon, and the lawsuits will be dropped, but in any case, THE SUITS THEMSELVES ARE NOT IMPORTANT from the point of view of us critics of the H-1B and employer-sponsored green card programs. Instead, what is important is that THESE CASES EXPOSE THE LOOPHOLES IN THE SYSTEM, similar to (albeit less dramatically than) what the YouTube videos did. This is what I will focus on this posting. The plaintiff is Gabriela Ptasinska. She was hired as a land planner by Manhard Consulting on an H-1B visa. The employer also applied for a green card for her. Let's look at her entry for the latter on the Dept. of Labor Web site for H-1B/green card application records, http://www.flcdatacenter.com/CaseData.aspx Here it is: "PERM","05437158","V-IL53587-G",,,"07/26/04 00:00:00","Received Regional Office","07/26/04 00:00:00",5,"IL","199.167-014","Urban Planner",40000.000000,"A",37544.000000,,1,"Manhard Consulting, Ltd.","Vernon Hills","IL","Cole","Kris","AZULAY, HORN & SEIDEN, INC","Azulay","Y. Judd","Chicago","IL" The information here shows that this was an applicant for permanent residency, i.e. a green card. It gives dates and ID numbers, the job title, salary, legally required prevailing wage, employer name/location, the name of the law firm (Azulay, Horn and Seiden) etc. Now the industry and immigration lawyer lobbyists would note that Ms. Ptasinska's salary is above the prevailing wage, and then tell you, "See, we played by the rules." In fact, they say that to the press (see article enclosed below). But THE PROBLEM IS THE RULES. As I have explained here so often, the law and regulations are riddled with loopholes. So, one can "follow the rules" and yet still use H-1Bs as cheap labor. And that's exactly what everyone does. Just consider Ms. Ptasinska's salary of $40,000. The government OES data (www.bls.gov/oes/2004/may/oes193051.htm) show that in 2004, wage data for this occupation were: 10th percentile: $33,840 25th percentile: $41,950 50th percentile: $53,450 75th percentile: $67,530 90th percentile: $82,610 Ms. Ptasinska's salary is in the bottom 25% of all U.S. salaries for this occupation! Yet the legally-defined prevailing wage is only $37,544. Her employer is LEGALLY using her as cheap labor. Again, THE LOOPHOLES ARE SET UP SO THAT THE LEGALLY-DEFINED PREVAILING WAGE LEVEL CAN BE FAR BELOW THE MARKET WAGE. Now of course the law firm hired by Ms. Ptasinska's employer, Azulay, Horn & Seiden, is the one who is making use of the various loopholes. By searching for that firm in the DOL data, we can see what their other H-1B clients are making. Among them: Computer Programmer, $1050 per month, prevailing wage $1105 Data Base Administrator, $31,003.25, prevailing wage $32,635 Electrical Engineer, $59,380, prevailing wage $62,504 Mechanical Engineer, $42,000, prevailing wage 43,202 Mechanical Engineer, $43,534, prevailing wage $43,534 Programmer Analyst, $42,600, prevailing wage $44,824 Software Engineer, $45,530, prevailing wage $47,923 Some of the prevailing wage loopholes were explained in the YouTube videos, part 12. See the details in http://heather.cs.ucdavis.edu/YouTubeVideosH1B.txt (Note once again that the prevailing wage requirement applies to both H-1B and employer-sponsored green cards.) This is just like what we saw in the YouTube videos. The YouTube firm, Cohen & Grigsby, is not a rogue operation; in fact, it is one of the top 10 firms in Pittsburgh. The firm representing Ms. Ptasinska and her employer, Azulay, Horn & Seiden, is the fourth largest immigration law firm in the nation (see their Web page, www.ahslaw.com). EVERYONE MAKES USE OF THESE LOOPHOLES. Remember, immigration lawyers are basically like tax accountants, trying to find whatever loopholes give the best results for their clients. In the video, Cohen & Grigsby showed how to shave, in their own words, "$10,000 or $15,000" off the prevailing wage, and once again, do this FULLY LEGALLY. And then allowing for the fact that you can hire a young H-1B instead of an older American, you can save even more than that. And they take advantage of EVERY loophole, not just those $10/15,000 ones but even the nickel-and-dime ones. Before 2005, it was legal to even pay 5% below prevailing wage, and guess what? Some of the salaries you see above (get out your calculators) are indeed exactly 0.95 of the prevailing wage. Recall that we saw this for Cohen & Grigsby too (http://heather.cs.ucdavis.edu/Archive/CohenAndGrigsbyPrevailingWage.txt). Again, this is a minor savings compared to what the big loopholes yield, but the fact that you keep seeing it with these various law firms (and with various client firms, Intel being a good example) illustrates once again that EVERYONE USES THESE LOOPHOLES. Again, I really don't want to say much about the lawsuits, but here is the gist of the issue. The foreign workers' complaint is that when it had been suddenly announced that some extra green card visas had become available, which would have ended what is typically a several years wait, those visas were suddenly withdrawn. Those waiting in line will now have to wait a few months longer, and they're hopping mad. You can read some of the details in the articles enclosed below, and in the actual legal complaint filed by Ms. Ptasinska's attorney, available at www.ahslaw.com/documents/AHSLawsuit.pdf By the way, those in the know will notice that that legal brief is very misleading, because it says darkly that Ms. Ptasinska's H-1B visa will expire next year, the implication being that both she and her employer will be left in the lurch. But they know full well that the law allows an H-1B visa to be extended past the six-year limit, one year at a time, as long as the worker's green card application is pending, which of course it is in Ptasinska's case. I wonder if the court will enjoy being misled like this (even though it is legal, since what they wrote was true). Some of the immigration lawyers claim that USCIS (formerly INS) is doing all this just to stall until they can go to the new higher fee schedule. See http://www.ilw.com/articles/2007,0710-lee.shtm This seems unlikely to me, but on the other hand, I really don't have any other theories. You can't tell the players without a scorecard, and unless you are an immigration lawyer, it may be hard for you to follow the enclosed articles. You may wish to read my H-1B/green card tutorial, at http://heather.cs.ucdavis.edu/Archive/H1BGreenCardTutorial.txt I've recently revised it, so you can follow what all the various form numbers mean, etc. Norm Chicago Tribune July 8, 2007 Lawyers say suits are likely over visas Many angry as U.S. halts applications By Ofelia Casillas and Antonio Olivo, Tribune staff reporters. Tribune wire services contributed to this report July 8, 2007 A mix-up by the federal government in issuing special high-tech visas is causing a variety of hardships for tens of thousands of legal immigrants, lawyers said Saturday. In a lawsuit filed Friday, Gabriela Ptasinska, a Chicago woman among those affected, is claiming that the government violated its own laws and her constitutional rights. Immigration attorneys said they think more suits will be filed across the country, including a class-action suit that the non-profit American Immigration Law Foundation plans to file this week. Experts say the impact of the mix-up speaks to the demand for high-tech visas at a time when the government is reducing its quotas for such types of legal immigration. The visas, most commonly known as H1-B, have been a side discussion in the immigration reform debate that recently stalled in Congress, with companies such as Microsoft Corp. pushing Washington to open the door wider for legal immigrants in that category. Government officials had announced last month that at least 60,000 high-tech visas would be accepted but later reversed that decision. "These are all people who have followed the rules, who are here legally, who have waited in line patiently in many cases for five or seven or more years for their opportunity to submit their green card applications," said Paul Zulkie, president of the Washington-based American Immigration Law Foundation. Zulkie said the immigrants often fill jobs experiencing a shortage of U.S. workers, so their employers sponsor their green cards, for which there is a quota of 140,000 each year. Other ways for immigrants to obtain green cards include sponsorship by an immediate relative who is a U.S. citizen or marriage to a U.S. citizen, he added. Last month's announcement had meant that U.S. Citizenship and Immigration Services could begin accepting applications, spurring thousands to begin a lengthy process that includes obtaining certified documents, medical exams and background checks. The U.S. State Department called the backlog an "unexpected action" and said employment visa numbers would be available when the fiscal year begins Oct. 1 to a new pool of 140,000 applicants. Federal immigration officials have acknowledged that a "lack of communication" among departments that share oversight of visa applications caused the mix-up. Zulkie said the impact is life-altering for many. "All the individuals who thought they were able to apply and scurried around had the door slammed in their face," Zulkie said. In her suit, Ptasinska, a Polish immigrant with a temporary work visa sponsored through her job at an engineering consulting firm, is seeking a ruling that would keep the application from being rejected, said her attorney, Ira Azulay. She flew to Lincoln, Neb., last week in hopes of being among the first to submit a green card application. Azulay said thousands of people are in a similar situation and could join the suit. Ptasinska declined to comment. The Chicago suit names several government officials and agencies including the U.S. Citizenship and Immigration Services, the State Department and Secretary of State Condoleezza Rice. State Department spokeswoman Leslie Phillips said Friday that the agency does not comment on litigation. Calls to Citizenship and Immigration Services went unanswered. ---------- ocasillas@tribune.com aolivo@tribune.com A Gift From Gandhi Frustrated Green Card Applicants From India Use Methods Of Master By Xiyun Yang Washington Post Staff Writer Wednesday, July 11, 2007; D01 Shyam Bindingnavale had spent years of anguish in pursuit of permanent residency, so when the government offered him an opportunity to apply for it and then abruptly snatched it away, he was furious and deeply disappointed. Bindingnavale, 36, a Gaithersburg resident and financial analyst working here on an H1B visa for skilled technical workers, struck back the most effective way he could imagine: He sent flowers to Emilio Gonzalez, the director of the U.S. Citizenship and Immigration Services. So did about 200 other green card applicants, most of them professionals, natives of India and working legally in this country. They did it because that's what Gandhi would have done. Yesterday, their bouquets of purple roses, pink lilies and yellow daisies, which cost about $40 each and which were sent from all over the country, piled up on the immigration office's loading dock at 20 Massachusetts Ave. NW, addressed to Gonzalez and stacked in columns taller than people. The agency forwarded them to soldiers recovering at Walter Reed Army Medical Center. "We know the reason behind it and understand the symbolism. We donated them in the same spirit in which they were provided to us," said an agency official who spoke on condition of anonymity because of a lawsuit over the matter filed by an advocacy group. The idea for the protest began with the Indian immigration community on the online forum Immigration Voice, a site devoted to issues facing skilled, legal workers seeking permanent residence in the United States. Their method was inspired by Mohandas K. Gandhi, who spent years campaigning nonviolently for India's independence from Britain. Green card applicants were given hope on June 12, when the State Department posted a bulletin offering H1B visa holders who had been stuck in a bureaucratic logjam an opportunity to take that last step needed to apply for permanent residency. Thousands of engineers, doctors and other educated foreigners began a mad scramble to file their applications before the July 2 deadline. Vacations were canceled, and lawyers were called in. Elderly parents in far-flung corners of the world stood in line for hours to get copies of birth certificates and immunization records. Then, on the day of the deadline, the State Department retracted the bulletin. The USCIS, which processes the applications, said it had already met its 140,000-person annual quota for employee-sponsored applicants. Those who tried to apply were told they had to wait. Some new applications may be considered again starting Oct. 1, but others may have to wait for years. The wait has become even longer after a surge in green card applications, amplified by a provision in 2001 that allowed undocumented immigrants or immigrants who had overstayed their visas to apply for green cards. The problem was exacerbated by the increased FBI security checks required after the attacks on Sept. 11, 2001. "Only someone with the saddest mind can do this," said Ashish Mundada, 31, an information technology consultant who works in New York City. Mundada had persuaded his wife to cancel a trip back to India for a sister's wedding to take advantage of what seemed like a brief window of opportunity. Mundada, like many other protesters, said he did not want any favors, just that his application be fairly considered. The flowers were inspired by a popular Bollywood film, "Lage Raho Munnabhai," in which the main character turns to the ways of Gandhi to solve his problems. The movie has stirred Indians at home and abroad to try to emulate Gandhi, who died in 1948, a year after India achieved independence. "The only way to get the other party to acknowledge your grief is to do something nonviolent, to show some compassion," said Bindingnavale, who works for MedImmune. But in America, lawsuits and hearings also hold sway. Crystal Williams, deputy director for programs at the American Immigration Lawyers Association, suspects that there may still be open slots in the annual green card quota. "They lied. That's the simple part of it. They lied to keep from having to take these applications," Williams said. The association's sister organization is filing a lawsuit to force the government to accept the filed applications. "The system is deeply broken," Williams said. Rep. Zoe Lofgren, (D-Calif.), the chairwoman of the Subcommittee on Citizenship, Refugees, Immigration, and Border Security, says she plans to hold a hearing on the issue and is pressing USCIS to accept the recently filed applications. "They have really messed this up," she said. "The Department of Homeland Security is not known for overarching efficiency, but this is a new low." Businesses are also unhappy. Many depend on the highly educated foreigners. Google and Microsoft have lobbied Congress on behalf of just such skilled workers. Elizabeth Stern is a corporate attorney with Baker & McKenzie, a firm that counts many financial service and IT companies among its clients. She said she has heard from corporate clients who are fed up with U.S. policies. " 'This is just not worth it,' they say. 'I'll just move to England,' " Stern said. Dilip Tekkedil, 32, a software engineer from North Andover, Mass., is one of the frustrated applicants who came up with the flower idea. "It was more peaceful," he said. "We don't trouble anyone else. A rally or something, you have to call law enforcement. It's too much trouble for other people." They do not hold hard feelings against Gonzalez. "I'd like to thank him for the job that he does. I know it's a thankless job," Tekkedil said. "I just hope that he could understand our plight as well." Their uncertain status makes them fearful of notice. Anand Sharma, 35, a chip design engineer from Longmont, Colo., said she drives well under the speed limit on highways. "We are so scared. We just want to stay here." But they are weary of how their lives have been frozen in time. They must retain the same job title and income they had when they began the application process, which can last for eight years. Any reprieve won't come fast enough for Vishal Nanda, 31, an IT consultant who had moved to the United States in 1999. Employed at a subsidiary of Time Warner, he had waited five years for a chance to stay permanently, then was forced to begin his green card process over again because of a technicality, he said. "There is too much uncertainty," he said. "I don't stand a chance in my lifetime to get a green card." He is moving back to India next week to join his wife, a dental surgeon.