Date: Fri, 4 Apr 2008 22:56:45 -0700 From: Norm Matloff To: Norm Matloff Subject: government of the AILA, by the AILA and for the AILA To: H-1B/L-1/offshoring e-newsletter It's well established that the industry lobbyists' past (and no doubt future) success in getting Congress to expand the H-1B program is due largely to their lavish campaign contributions, not only to individual politicians but much more importantly to the two major political parties. Sen. Bennett of Utah and Rep. Tom Davis of Virginia have even said so publicly. Enclosed are two articles illustrating just how much influence the industry--not just the tech industry itself, but also the American Immigration Lawyers Association (AILA)--has, extending even beyond Congress. Some readers may recognize the byline in the first article; Jennifer Bjorhus knows the H-1B issue well from her days at the San Jose Mercury News. What happened with her FOIA request is bizarre and outrageous, a government agency simply thumbing its nose to the citizenry. As I've said, support for the H-1B program is thoroughly bipartisan. Corruption knows nothing about party lines. But I must say that at the executive branch level the George W. Bush administration has been especially awful. After Bush took office, my own data source in the INS (now USCIS) suddenly stopped returning my phone calls and answering my e-mail messages. (He's the one who, for instance, supplied the information that only 1.6% of the computer-related H-1Bs have a PhD, quite a contrast to the claims of the industry lobbyists, and thus a "dangerous" statistic, it seems.) Note, by the way, that this closing of the information door came during the watch of Stuart Anderson (the organization NFAP is in reality little more than a pseudonym for him) when he was at the INS, presumably not a coincidence. Ms. Bjorhus' experience here may be viewed in that context. The second article takes a bit more explaining. The F-1 student visa includes an Optional Practical Training component. Instituted as a way to help the Third World by complementing foreign students' book learning with some work experience, OPT has devolved to (a) a means of working while waiting for an H-1B visa, and (b) time to LOOK for a job. The lobbyists--with the H-1B group Immigration Voice pushing especially hard--has been pressuring the Bush people to make what IV calls "administrative fixes," one of which has been to extend OPT from 12 to 29 months. As you can see, IV's lobbying worked. The request for public comment by DHS is at http://www.dhs.gov/xlibrary/assets/press_opt_ifr.pdf Norm http://www.twincities.com/ci_8803914?nclick_check=1 Worker visa program shrouded in questions The program is widely used, but details are sparse By Jennifer Bjorhus jbjorhus@pioneerpress.com Article Last Updated: 04/04/2008 12:21:40 AM CDT U.S. employers are rushing to file their applications to the federal government for foreign specialty workers to fill tens of thousands of U.S. jobs ranging from programmers to marketers. During a five-day lottery period now under way, employers will fill 65,000 jobs by obtaining H-1B visas, the documents allowing employers to bring in foreign workers for three to six years. As sure as the rush to apply come proposals on Capitol Hill to lift the current annual 65,000 cap — a move both Minnesota Sens. Norm Coleman and Amy Klobuchar support. (There's an additional 20,000 visas set aside for foreign workers with advanced American degrees.) Industry has long argued that the temporary work visas are necessary to stay competitive by attracting the world's best and brightest workers. Many employers, most recently Bill Gates, argue there's a critical shortage of skilled U.S. workers. "From Minnesota, I've heard so many stories of companies unable to get the H-1B visas, so instead they contract with someone (outside the country)," Klobuchar said. "It's not like we are talking about an unlimited number of visas." Critics charge there's no shortage but too many over-specific job descriptions and overly picky employers. The guest worker program cheats U.S. workers by importing younger workers who are often less well paid, they charge. Laid-off U.S. tech workers have testified on Capitol Hill of being forced to train their H-1B replacements. What's missing from the decade-old debate is solid information about how the program actually functions. Exactly which white-collar jobs go begging for lack of qualified U.S. workers? What are specific workers being paid? How are specific employers in various parts of the country using the program? Are there patterns to their particular hiring? Nearly all of Minnesota's top employers use the visa program, according to the U.S. Labor Department. The department tracks only very preliminary applications from employers that may or may not be approved and that don't have information specific to a real live worker. But exactly how many visas do employers such as Target Corp., 3M Co. and the University of Minnesota get each year and for which specific jobs? What salaries do they actually pay those workers? Did Medtronic get the H-1B visa it recently sought for the "human resources generalist?" Did Best Buy get one for that art director? Companies won't discuss specifics. U.S. Citizenship and Immigration Services will not release detailed information it keeps on the thousands of worker-specific visas it approves each year to be issued by the State Department. "It's a huge hole," said Ron Hira, assistant professor of public policy at the Rochester Institute of Technology and co-author of "Outsourcing America." "Why would you expand a program without knowing what its impacts are? It's very bizarre to me." Hira has company. Sens. Dick Durbin, D-Ill., and Chuck Grassley, R-Iowa, on Tuesday mailed 25 letters to the country's top H-1B employers asking for detailed information on how they use the program. The Pioneer Press in 2004 filed a Freedom of Information Act request to immigration services for basic information on each H-1B and related L-1 visa it approved for employers since 2000. L-1 visas, which have no cap, are increasingly used by employers to bring their own foreign employees to the U.S. to work. The newspaper's request remains unfilled. In January, immigration officials mailed a disk that doesn't contain records of any H-1B visas, and with tens of thousands of blank fields where job codes should be, and more than 400,000 blank fields where the worker's education level should be recorded. The Pioneer Press filed an appeal with immigration services, which recently informed the newspaper that the appeal is No. 2,771 in a backlog of 2,845 appeals. Chris Rhatigan, an immigration services spokeswoman, said her agency considers the newspaper's request filled, noting the "appeal is still pending a final decision." One reason for the delay has been the agency's notorious backlog of FOIA requests. At the end of the 2006 fiscal year, it had nearly 90,000 such requests for all types of information jammed up, according to the FOIA annual report from the Department of Homeland Security, where immigration services is housed. An internal investigation in 2006 recommended a major overhaul of the agency's broken FOIA system. Lucy Dalglish, executive director of the Reporters Committee for the Freedom of the Press, in Arlington, Va., said the situation doesn't surprise her. The FOIA offices at federal agencies lack staff, she said. "Congress has never given them the money to do what they need to do," Dalglish said. As for immigration services, it does publish a yearly report, "Characteristics of Specialty Occupation Workers," showing aggregate totals at the national level — such as that 50 percent of the H-1B visas in fiscal year 2005 were for people from India, half were issued to people in their 20s, 5 percent of the workers held doctorate degrees and about half the jobs were computer-related. The report doesn't provide employer-specific or job-specific information. The agency is also two years behind on its reports. The Pioneer Press could find only one organization that has received detailed information about the guest worker program. The Government Accountability Office (GAO), the congressional watchdog, obtained detailed H-1B visa approval data around 2002. The group's 2003 report concluded that Homeland Security has incomplete information on H-1B worker entries and can't provide key information needed to oversee the H-1B program and its effects on the U.S. workforce. It also said that in four of the five occupations the GAO studied, H-1B workers approved in 2002 were younger and that more had advanced degrees than their U.S. counterparts. Younger H-1B tech workers listed higher salaries than U.S. counterparts, while older H-1B workers had salaries either similar to or lower than U.S. counterparts. The GAO report is limited. It, too, contains no information specific to employers or jobs. It doesn't help a reader understand how the program is used in his or her hometown. Jennifer Bjorhus can be reached at 651-228-2146. http://www.workforce.com/section/00/article/25/46/35.html April 4, 2008 Homeland Agency May Expand High-Skill Foreign Student Stay In an effort to help companies hire and retain more highly skilled foreign nationals who graduate from U.S. universities, the Department of Homeland Security is proposing to expand a program that would allow them to stay in the country longer after receiving their degrees. On Friday, April 4, the agency announced a preliminary regulation extending the time that foreign graduates in science, technology, engineering or mathematics can work for a U.S. company without obtaining a visa. That will give them a greater opportunity to secure an H-1B visa, which is for people who have at least the equivalent of a U.S. bachelor’s degree. The H-1B cap is likely to be exceeded again this year, forcing spring graduates to wait until next April to apply. H-1B opponents criticized the DHS proposal.More criticism may be generated by a condition in the regulation that mandates that only companies using E-Verify, a government-run electronic verification system, can participate. The Society for Human Resource Management and many other HR groups assert that E-Verify is inefficient, error-prone and could potentially designate many legal workers as ineligible for employment. They are promoting a bill that would establish an alternative verification system. The new DHS regulation is subject to a 60-day comment period. Then DHS can promulgate a final rule. It’s unclear whether the process can be concluded before the end of the Bush administration. Under the regulation, the Optional Practical Training program would increase from 12 months to 29 months. Microsoft chairman Bill Gates called for such a reform in congressional testimony last month, saying that hiring and retaining foreign-national graduates is critical to helping technology companies innovate. The push for a longer training program is the result of a shortage of H-1B visas. For the last fiscal year, companies sent in 123,000 applications for 65,000 H-1B visas, exceeding the cap on the first day they were available, April 2. Under current law, if a foreign-national hire doesn’t get an H-1B visa within 12 months, he or she must leave the United States. For the 2009 fiscal year, the cap is set again at 65,000, and an even greater demand is expected. DHS may announce as soon as Monday, April 7, that the cap has been exceeded and that the visas will be distributed by lottery. The move to expand the training initiative may ease the disappointment of companies, especially in the technology sector, who say they can’t fill high-skill jobs. “It’s a good first step,” says Robert Hoffman, vice president of government and public affairs for Oracle and co-chair of Compete America. “The administration has clearly recognized through this action that there is a severe skills shortage in this economy.” Hoffman says that there are 140,000 openings at S&P 500 companies for engineers, scientists and other highly skilled professionals. But he warned that the DHS regulation alone is not enough. Congress must increase the number of H-1B and permanent work visas, or green cards. Bills to do so are mired in a political stalemate on immigration reform. If Congress doesn’t act, “you’re going to create one heck of a bottleneck,” Hoffman says. “You’re going to find (that many) more highly skilled individuals are forced to leave the country.” Opponents of the H-1B program contend that it displaces U.S. workers and depresses wages. They also criticize the training program expansion. “It’s completely unnecessary,” says John Miano, a Summit, New Jersey, lawyer and computer consultant who founded the Programmers Guild. “Student visas are not supposed to be the gateway to immigration, but they’re being transformed into that.” Outsourcing companies from India obtain many H-1B visas in order to send foreign workers to the United States who ultimately take jobs away from U.S. applicants, Miano says. Data on the impact of H-1Bs doesn’t exist, and Department of Labor enforcement is limited, according to Miano. “No one knows what’s going on in the system,” he says. “There is no ability to investigate these things.” But Homeland Security Secretary Michael Chertoff promoted the extension of the training program as a way to bolster the U.S. economy. “This rule will enable businesses to attract and retain highly skilled foreign workers, giving U.S. companies a competitive advantage in the world economy,” he said in a statement. —Mark Schoeff Jr.