Date: Mon, 19 Jun 2006 22:56:40 -0700 From: Norm Matloff To: Norm Matloff Subject: how the pros work the immigration system To: H-1B/L-1/offshoring e-newsletter In my last message, I reminded readers that (except for a minuscule exceptional category), H-1B law imposes no requirement on the employer to giving hiring priority to American workers. See http://heather.cs.ucdavis.edu/Archive/H1BRequirements if you want full details on this point, including references. By contrast, the employer-sponsored green card process does have such a requirement. However, it is easily circumvented. The current set of regulations for doing this is called PERM, which has been in existence now about a year or so. As is typical, DOL's original formulation of PERM actually had some protections in it for U.S. workers, such as some restriction on overspecifying job requirements so that only the foreign worker qualifies for the job, but forceful lobbying by the immigration attorneys caused DOL to emasculate the provisions. So, as always, one can perform circumvent the U.S. recruitment requirement fully legally. As immigration attorney Joel Stewart infamously said, "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). Recently Programmers Guild president Kim Berry pointed out an example of Stewart's "arsenal" at work, in an advice column in Immigration Daily. There an attorney openly states (hey, this is just between us attorneys, right?) that his client does have a qualified American applicant but wants to hire the foreign worker. Stewart then replies, suggesting a number of extra hoops the employer can make the American applicant jump through. I suspect that if this were Stewart's client, he'd have various other solutions as well. The question and answer are enclosed below. Norm http://www.ilw.com/articles/2006,0606-citations.shtm Question: We are doing perm labor certs for 6 special ed teachers. We have been able to eliminate all applicants except one. They do not want to hire this person, but at this point she appears qualified and has good references. Can we still file 5 of the applications, or will all 6 suffer because of the one qualified applicant. We used the same ads and recruitment for all 6 teachers. Answer by Joel Stewart: Special Ed Teachers -- What do you mean she APPEARS qualified? Is she also AVAILABLE? You can ask her to assist you to confirm her qualifications....you can also do some "digging" in her background...why does she want the job? There is a shortage of special ed teachers....is she not employed now? If not, why not? Why does she want YOUR job and not another job? I think there are a lot of issues you can investigate before you throw in the towel on this one. In the final analysis, if you have six positions, you can hire the five aliens and the one US worker. Another option is to consider whether the US worker is interested in the special ed job as a permanent position...what does her resume state about her intentions? Does she want a job with more responsibility? Perhaps the employer has a different, more challenging job for her?