The most remarkable aspect of the recent Senate Oversight Hearing was the lack of any acknowledgement by the American Immigration Lawyers Association (AILA) backed American Immigration Council to even acknowledge well known abuses by Body Shops such as Wipro and Infosys. Given AILA represents business lawyers and law firms the question arises, why would Big Tech need Insourcers like Wipro Tata & Cognizant.
The answer lies in a counter-intuitive provision in the law that states the H-1B non-immigrant must be paid the higher of the two:
- the Department of Labor “prevailing wage” (minimum salary for a particular position in a specific geographic area) OR
- the actual wage paid for that position to an American worker by that employer.
Using Apple & Wipro in a hypothetical based on the above–
If Apple hires an H-1B Architect 2 directly, Apple must pay what they pay their own employees for that position as it is higher than the “prevailing wage” as declared by the Department of Labor. Here, Glassdoor reports a full compensation package of $188k/year.
But, if Apple contracts with Wipro to simple place a Wipro H-1B employee at Apple to do the job of Architect 2, Wipro will pay, according to this LCA, $78k—a difference of over $100k.
If Wipro charges Apple $100k to place the Wipro employee at Apple, Wipro will gross $22k for placing this employee with Apple and Apple will save $88k a year.
American Tech Workers Lose.
THE DEPARTMENT OF LABOR CERTIFIES LABOR CONDITION APPLICATIONS
A Labor Condition Application (LCA) must be certified by the Department of Labor (DOL) as a condition precedent to the filing of an H-1B Visa Petition with US Citizenship & Immigration Services, Department of Homeland Security (USCIS, DHS).
The LCA contains attestation of the employer’s ongoing responsibilities during the period of LCA certification (up to three years).
Whether or not an H-1B visa application is required to be amended due to material change in the job as defined by USCIS, DHS is irrelevant to the ongoing Wage and Labor obligations of the H-1B employer under 20 CFR 655.731 and 20 CFR 655.734.
DOL ISSUES GUIDANCE IN THE 90s ON LCAs AS WELL AS ON DHS-USCIS H-1B PETITIONS & SETS THE STAGE FOR ENFORCEMENT FRAGMENTATION THAT PERSISTS TO THIS DAY
On November 4, 1996 James Norris, Chief, Division of Foreign Labor Certifications, DOL issued a Guidance Letter to attorney Julia L. Stommes, reprinted in 73 Interpreter Releases 1634-1636 (Nov. 18, 1996) hereinafter the “Norris Letter,” discussing the necessity of amendments when there has been a change in the duties and salary of the Foreign National. Unfortunately, this Interpreter Release, although not widely available, is relied upon by most immigration lawyers and H-1B employers to justify not having to file a new LCA with DOL unless there is a material change in the underlying H-1B job. In this letter, the DOL makes clear that any change of a material nature on the LCA requires a filing of a new LCA. There is no provision for amending an LCA.
SKILL LEVEL OF H-1B EMPLOYEE
The level of skill required by the employer for the job opportunity is to be considered in making prevailing wage determinations. In the past, the DOL’s Occupational Employment Statistics (OES) wage survey produced two wage levels that distinguished between positions requiring significantly different degrees of skills in the occupation. Legislation enacted in 2004 (The Consolidated Appropriations Act of 2005) provides that the DOL’s OES surveys are to provide at least four levels of wages commensurate with experience, education, and level of supervision in lieu of the previous two-level system. The four-tier wage system went into effect on March 8, 2005. The guidance provides a step-by-step procedure for selecting the appropriate wage level for prevailing wage purposes.
A redacted LCA (Form ETA 9035E) certified for 10/01/2004 to 10/1/2007 is below.
The “old LCA” is distinguishable from the current LCA in that the pre-2005 LCA does not include check boxes to identify any Wage Level and specifying the salary range is optional. In contrast, the current LCA clearly shows whether the H-1B employee is a Level 1, 2, 3, or 4 employee with the attendant required wage range for each level. DOL will certify LCAs in which the salary range is listed as the [minimum prevailing wage] to “N/A” or “$0.00” and has also certified LCAs for non-existent work sites.
20 CFR 655.731(a)(1) states where the employer’s pay system or scale provides for adjustment during the period of the LCA—e.g., cost of living increase or other periodic adjustments, or the employee moves to a more advanced level in the same occupation—such adjustments shall be provided to similarly employed H-1B non-immigrants (unless the prevailing wage is higher than the actual wage).
It is not uncommon for H-1B employees to be promoted during the 3 year period of the LCA thus changing the LCA on its face. For example, by promoting a Level 1 entry level employee into a Level 3 manager or supervisor. That change, based on subsequent legislation (discussed below) now requires a new LCA to be filed, contradicting prior 90s era Guidance. However, it remains firmly entrenched in the immigration community that unless an amended H-1B Visa Petition must be filed with USCIS-DHS, a new LCA need not be filed with the DOL.
Because of the fragmentation between the DOL and USCIS-DHS, the three year term of the LCA provides what many lawyers and employers believe is a three year wage embargo on the salary of the H-1B employee.
DESPITE THE ARCANE “GUIDANCE” ON WHETHER OR NOT AN AMENDED H-1B APPLICATION IS TO BE FILED WITH USCIS-DHS, DOL OBLIGATIONS UPON THE H-1B EMPLOYER ARE ONGOING
The Norris Letter also goes on to say notwithstanding whether a new LCA is required to be filed, “… the underlying prevailing wage determination, must still be valid. For example, if the employer obtained a prevailing wage rate from a State Employment Security Agency (SESA) for an entry level worker and the promotion moves the H-1B non-immigrant into the experienced level category, the new rate of pay must be no less than the higher of the adjusted actual wage rate or prevailing wage rate for the new position….”
“Lastly, in accordance with §____,760(a)(2), the employer shall insert documentation in the public access file in support of the LCA which provides the wage rate to be paid to the H-1B foreign worker after the promotion and corresponding increase in pay.”
In reality what happens is a Level 1 Entry Level H-1B foreign worker is hired. He or she is promoted or simply is assigned Level 2, 3 or 4 job duties during the three year Level 1 LCA period. The Employer is under the mistaken belief, at best, or knowingly, at worst, that the Level 1 LCA provides the Employer safe harbor to continue to pay the foreign worker depressed wages.
Whether unintended or intentional, the result is that no Level 3 American Applicant can compete with an H-1B foreign worker who will perform a Level 3 management job at Level 1 entry level worker wages and who is bound to continue to do so for three years under the H-1B LCA.
LEGISLATIVE HISTORY & INTENT OF DOL LABOR CONDITION REQUIREMENT
The LCA requirement was added to the Immigration and National Act by the Immigration Act of 1990. The requirement was extensively amended by the Miscellaneous and Technical Immigration and Nationality Amendments of 1991 and most recently in 1998 by the American Competitiveness and Workforce Improvement ACT. Its basic core remains intact: Employers must make several attestations before being given permission to hire H-1B workers. The congressional purpose in enacting the LCA requirements is to protect U.S. workers.
As originally enacted in 1990, Congress sought to assure that employment of H-1B workers did not adversely affect the wages and working conditions of U.S. workers. A corollary, but secondary, purpose of the LCA requirement was to assure that H-1B workers were not exploited by the U.S. employers through the payment of substandard wages. The LCA procedure was established to create a level playing field for U.S. and foreign workers by removing the incentive to prefer foreign workers who could be paid less than prevailing wages under the INA prior to the enactment of the 1990 Act. Mandating that H-1B workers be paid the “required wage rate,” which is at least the prevailing wage for similarly employed workers in the occupation in the area of intended employment, put U.S. workers on competitively equal footing with foreign workers, and in practice gave them an advantage because meeting the H-1B substantive and paperwork requirements places a burden on employers without commensurate benefit.
Under these circumstances, there are only two reasons to hire H-1B workers: (1) a labor shortage; or (2) a desire to hire a foreign national who has such superior skills, knowledge, expertise or accomplishments that, on balance, such hiring will enhance the employer’s economic position despite the attendant costs of the H-1B application process.
Excerpted in pertinent part from H-1B Handbook by Austin T. Fragoman, et al.
H-1B Lawyers and Employers are under the overwhelming misconception that where an amended or new H-1B Visa Petition is not required, neither is a new LCA. That notion is contrary to the Legislative History and Intent of Congress in enacting the requirement of the LCA and the plain meaning of the law.
ONGOING, INDUSTRYWIDE VIOLATIONS
Notwithstanding the irresponsible reliance on outdated 90s era “Guidance,” H-1B employers must nonetheless meet their ongoing obligations under 20 CFR 655.760(a)(2), 655.760(a)(3) and 655.750(b)(3) to otherwise document that the H-1B foreign workers’ salaries currently meet either the actual or prevailing wage when the foreign worker’s duties move him or her from a lower Level to a higher Level Position, even if only in execution of the foreign worker’s duties and in the absence of a formal promotion.
Relying on 90s era guidance and ignoring the Congressional intent of substantial subsequent legislation has resulted in the firmly entrenched belief by lawyers and employers that the certification of a low level LCA by the Department of Labor provides a de facto three year salary embargo upon H-1B foreign workers.
Reflecting the height of irony or grievous abuse, the result is an American Job Market wide open to exactly what the LCA legislation was intended to circumvent—the depression of American wages and the displacement of American workers.
All this Obama bashing for not stopping all deportations right now turns my stomach.
First, some people who are deportable under the originally passed immigration & Nationality Act of 1952 should be deported. Take child pornographers or meth makers, for example.
Second, America is not JUST immigrants. We face international threats from a nuclearized Iran, Israeli Dahiya, ISIS terrorism, the Syrian Civil War, Psychopathic Imperialists, and climate change. Closer to home, many Americans including Veterans, the children & the elderly are going to sleep hungry, can’t get a job, afford a good education, or simply just can’t make it as a working single mom.
The Supreme Court has undone a century of progress by declaring corporations are people and money is free speech. Justice Scalia is so out of touch that he says women cursing is eroding society. Mass shootings by children and homicides by law enforcement are routine. Being openly discriminated against for being gay or trans is no longer just practice– it is slowly becoming the law across the U.S.
Third, before Obama takes any executive action risking impeachment or the lives of Americans either here or abroad, his first priority is to ensure the full spectrum of constitutional protections to African Americans.
African Americans’ families were brought to America as slaves, built this nation, and are long overdue their first class citizenship, equality and dignity– promises yet unfulfilled even 50 years after their legislation.
Fourth, I am astounded by the prevalence of a just-under-the-surface plantation mentality that persists even amongst liberals. The latest example being the group of over 100 law professors sending a letter to President Obama outlining the legal basis of a President’s discretionary authority.
I read in absolute amazement the “memo” written to our President who is a Harvard Law Grad, who was a Constitutional Law professor for 12 years and who is now a second term POTUS. I was embarrassed to see in that letter the ugly air of supremacy in this legally simplistic letter written as “instructive” to our President and Commander in Chief.
I am not an Obama sycophant but God bless him for being the first to have to suffer the foolishness of sophomoric, “explanatory” memos by Lexus Liberals.
Wrongheaded immigrant groups are re-writing the narrative of immigrants who understand why Obama is delaying action for a mere 6 weeks. Self appointed talking heads are, by their hubris, misleading the rest of America into concluding immigrants have a remarkable lack of disregard for the collateral damage that would ensue if Obama succumbed to the non-sensical #Not1More deportation demands.
It is well known in the working class undocumented community that groups such as United We Dream and National Council of La Raza are just multi-million dollar self licking lollipops with half million dollar salaries in bed with many of the enemies of Immigration Reform. But even more insidious is their simultaneous destruction of the authentic moral authority of the regular, hard working undocumented American who wishes for nothing more than to offer his loyalty to this still great Nation.
The relentless ego-centric Obama bashing resounds with voting Americans but not the way you think. Americans are now asking themselves if the undocumented understand that being American means being willing to lay down your life for country and flag. Country first– always above and beyond our individual needs. Voting Americans are asking if the undocumented are willing to make the ultimate sacrifice for this Nation or are they just here to live out an individual and self-serving life? Special interest groups have silenced the voice of authenticity and replaced it with hubris– not unlike so many other political machines polluting the people with disinformation.
As much as some Tea Party Leaders like to talk about their principled, steadfast positions on immigration, they seem to turn a blind eye to real criminality when it suits them.
Take the case of Idaho Republican Raul Labrador, who is fighting to win the leadership position left vacant by Eric “Steakhouse” Cantor, largely with the frenzied support of Tea Party ideologue, Mark Kibbe, author of Give Us Liberty: A Tea Party Manifesto.
Raul Labrador was an immigration lawyer in Idaho for years but when you look at his record, Kibbe’s hero doesn’t seem be quite in line with Tea Party Principles.
Actually, Raul Labrador’s immigration case files read more like Saul Goodman’s, the ethically challenged lawyer from Breaking Bad.
A Washington Post article portrays Labrador as a weepy Tea Party longshot for the GOP Majority Leader’s position; someone supported by FreedomWorks, lumped in with Rep. Justin Amash and maybe just maybe (Raul coyly won’t say) urged to run by the likes of Ted Cruz.
This is the far-right Tea Party crowd with an unyielding, uncompromising position on tossing every immigrant man, woman and child back over the border. These are law and order people.
Have the people pushing Raul actually looked into his record as an immigration attorney?
I have and let me tell you — it’s astounding.
Raul handled case after case with clients who had serious criminal convictions. There’s a reason that some attorneys take those cases and it has nothing to do with patriotism or law and order. It’s not about the red, white and blue… these are cases you take strictly for the green.
Did Matt Kibbe from Freedomworks ever talk to Raul about his client Carlos Araiza, who was busted for drugs and distribution and then failed to show up in court? Freedom didn’t seem to work for Carlos.
Did Raul ever tell Sen. Ted Cruz how proud he was to represent Javier Sotelo, a human smuggler who had a murder charge in Mexico?
Would the Tea Party get furious fast if they knew Raul represented Abel German-German, a Mexican national unlawfully present in the United States who had an illegal gun? Or would they give him a pass for having a name that sounds doubly German?
Raul Labrador’s Big List of Troubling Clients goes on and on. It’s not a couple of bad apples; it’s a business model of taking the clients that reputable immigration attorneys don’t want to touch. The lawyers who take those clients rack up a lot of losses and usually are the first to plea out their clients, but that’s no surprise.
Here’s a political reality check: if Raul Labrador was a Democratic Congressman, Conservatives would be all over this story. They’d scream to high heaven about what a low life Labrador is.
So, why is Raul Labrador getting a free pass?
FreedomWorks, like many Koch funded PACs, is more adept at dictating what Tea Party Conservatives should do rather than providing them with the information they demand and deserve to make their own informed and intelligent decisions.
In whipping up the frenzied support of Raul Labrador, FreedomWorks has done a remarkably effective job at getting Tea Party Conservatives to wholeheartedly back a pro-amnesty immigration lawyer.
Whether that’s a testament to Freedom Works and ideologues like Mark Kibbe dictating the actions of Tea Party Conservatives or a case of the Conservative Leadership providing sophisticated political cover for Raul Labrador remains to be seen.
2008: House Democrat Representative David Price sponsors HR 6947 which calls for a National Alternatives to Immigrant Detention Program. The Bill dies in Committee.
2009: Luis Gutierrez introduces HR 4321 the CIR ASAP Bill (a Comprehensive Immigration Reform bill including legalization for undocumented).
2009: Republicans soundly reject HR 4321 and demand more Immigration Enforcement from Obama & the Democrats before they will move an Immigration Bill forward.
2009: ICE begins counting traffic violators as “criminals” to seemingly boost their “criminal deportations” statistics.
2009: In a complete 180, House Democrat David Price sponsors HR 2892 which creates the Congressional Bed Mandate requiring a minimum number of 33,400 Immigrants to be in detention at any time. It passes the House with a Democraric Majority.
2010: In turn, ICE implements a detention quota of 400,000 (33,400 x 12 months = 400,800). Note: average length of immigrant detention is one month.
January 2013: Obama announces we finally have Bipartisan Support for Comprehensive Immigration Reform.
April 2013: Senate introduces S. 744, a Bipartisan Comprehensive Immigration Reform Bill.
June 5, 2013: Ted Deutch calls for an end to the Congressional Bed Mandate which has been continued in every House Department of Homeland Security Appropriations Bill since Rep. David Price’s HR 2892 was passed in 2010. Deutch’s call to end mandatory detentions of now 34,000 immigrants nightly is defeated largely along party lines but with the help of 11 Democrats as well.
June 27, 2013: Senate passes amended S. 744, with Border Surge Amendments included.
October 1, 2013 is the first day of the fiscal year covered by HR 2217 which continues the 34,000 mandatory minimum immigrant lock up.
October 2, 2013 House introduces bipartisan Comprehensive Immigration Reform Bill HR 15 where it resides in committee to this day.
NOTE: This article is also published at http://www.huffingtonpost.com/susan-pai/two-little-words_b_4966023.html
The sound of the circular firing squad is getting louder as two different strategies are creating a rift in the pro immigration reform movement. There’s a victory in the battle to demolish the deportation machine but some of our guns are aimed in the wrong direction and somewhere, anti-reformers like Rep. Steve Kingand Phyllis Schlafly must be laughing their heads off.
Both factions fighting for immigration agree that the deportation system is cruel, illogical and needs to changed.
On one side we have groups like La Raza firing away at President Obama: Calling him the Deporter in Chief and trying to put pressure on him to do what he can’t do. On the other side, there’s a fight we can win, with grassroots groups likeTNTweeters and Univision’s Fernando Espeulas calling for the use of a discharge petition to push a floor vote in the House.
The groups taking potshots at Obama may possibly have their hearts in the right place but they are fighting a futile battle and diverting attention and resources from the real war in Congress. They’re losing sight of the big picture ofComprehensive Immigration Reform and focusing on deportations but the irony is they will not be able to win in this way.
Attacking President Obama and claiming he can use executive orders to stop deportations is worse than counterproductive. It’s misdirection from the real issue that is powering the deportation machine: the costly and draconian Congressional Bed Mandate. That mandate — which is not an option, but a mandatory budget spend using appropriation tools generally reserved for entitlements such as Veteran’s benefits and retirement pay — requires the government maintain 34,000 beds for immigrant detainees at all times at a cost of five million dollars a day.
Fixing the Bed Mandate takes two little words and Congress. The words are “up to.” Right now the law says “not less than” 34,000 people need to be incarcerated every day. By changing this to “up to 34,000” ICE and President Obama will have the flexibility they need make real change.
It won’t happen without Congress but there’s good news there: Virtually every politician in the House is up for re-election this year. That means that pressure can be brought to bear. With so many in reform movement turning up the heat on President Obama, they ignore the political reality that he is never going to be up for election again.
Ironically, by focusing on the President, groups like La Raza actually risk turning up pressure coming from the Tea Party wing that’s obstructing reform.
The Tea Party is already going ballistic over the use of executive orders. Pushing Obama for an executive order plays into their worst fears and will lead to more ignorant rhetoric about Obama pushing for amnesty and harsher calls for enforcement. The Tea Party knows there’s an election coming up, too.
What’s needed now is focus. Put down the Deporter In Chief signs. Push for the discharge petition and then keep going. Let everyone running for the House know that a united immigration reform movement is watching and will hold them accountable.
Under the cry of States Rights, Congress has disallowed any meaningful control of firearms or ammunition, has allowed the Voting Rights Act to be gutted after a 48 year battle to assure equal voting rights to the traditionally disenfranchised, has let Stand Your Ground thrive and spread, and has allowed the passage of blatantly discriminatory laws against LGBT and women under the guise of “sincerely held religious beliefs.”
Despite the federalist foothold on so called State’s Rights, these Republicans and Democrats want to be able to sue President Obama for NOT arresting Americans who are using marijuana LEGALLY (including children who are using it medically) under their State Laws.
Yes, that includes the Representative from Alaska, Don Young, who just last year co-sponsored the “Respect Your State’s Marijuana Laws” Act.
As the Sponsor of this act HR4138 reiterates the words of his good friend, Allen West, “the race card is the last one in the deck.” Indeed.
HR4138 Act by Trey Gowdy (SC-4) was passed by the House on March 12, 2014
Cosponsors who joined Elvish King Gowdey want to arrest Americans who are using Marijuana legally in their states:
Republican Darrell Issa (CA-40)
Republican Jim Gerlach (PA-6)
Republican Bob Goodlatte (VA-6)
But, there were also FIVE DEMOCRATS who voted WITH THE REPUBLICANS to begin arresting Americans for LEGAL marijuana use:
Democrat Henry Cuellar (TX-28)
Democrat Pete Gallego (TX-23)
Democrat George Barrow (GA-12)
Democrat Nick Rahal (West Virginia -3)
Democrat Collin Peterson (Minnesota-7)
The following Republicans did a flip flop on Thursday by voting for the ENFORCE ACT, while in the past, supporting the relaxation of marijuana in their states:
Republican Mike Coffman (CO-6)
Republican Dana Rohroabacher (CA-48)
Republican Justin Amash (Michigan-3)
Republican Don Young (Alaska- at large)
Alaska Republican Don Young actually cosponsored the “Respect State Marijuana’s Law Act in 2013”
FY 2014 DHS BUDGET REQUEST to appropriate funds for UP TO 31,800 detention beds.
Immigration & Nationality Act (INA) Section 236(c) states exactly who is a “mandatory custody” by the crime committed or security threat to the U.S.
On June 5, 2013, the House of Representatives Passed HR 2217 which did the following two things:
1. Funded DHS detention beds at more than requested by DHS
2. Made all 34,000 beds “mandatory detentions” by including language way above and beyond the language of the INA
On June 5, 2013, Ted Deutch proposed Amendment 107 to eradicate the mandatory minimum detention lockup language of HR2217. That amendment was defeated with the help of these 11 Democrats, who voted against ending the indefensible mandatory lockup quota.
HR2217 passed a day later on June 6, 2013, with the indefensible expansion of mandatory immigrant lockups included.
HR2217 was incorporated in HR3547, the Omnibus Appropriations Act, which was passed on January 17, 2014 by a Democratic Vote and thus, with a Waiver of the Hastert Rule.
WHAT THE HECK JUST HAPPENED?
The Law, the Immigration & Nationality Act, makes certain high risk and criminal foreign nationals ineligible for release and thus they are called “mandatory custodies.” However, ICE’s own numbers show the majority of those detained and deported are not “mandatory custodies” as defined by the law.
The House, by passing Bills like HR 2217, has artificially inflated the number of “mandatory custodies” not because they are criminals or a threat to the United States, but in order to fill an artificial, arbitrary, capricious & wholly unnecessary “lockup quota.”