The H1B issue: Yes, American workers, YOU DO QUALIFY FOR THAT JOB.

[WilmywoodNCparalegal]

24. Lots of inaccuracies about H-1Bs and a general misunderstanding of how the legal immigration process

works... not surprising, even on DU.

First of all, there is fraud in everything - from visas to food stamps to healthcare to the military to anything else. Just because companies like Infosys have committed fraud does not mean everybody does it. Again, I wish to reiterate that I've been working in this field (legal immigration) for a long time. I know more about it than most lawyers, which is why I get paid rather well for my knowledge. I've worked with some of the largest companies, as well as other professionals and start-ups in a variety of industries ranging from IT to entertainment, fashion to medicine, etc. In all my years of work, I have yet to come across one visa petition that I either completed and/or signed that did not comply with the immigration laws in force, including prevailing wage attestations for H-1Bs. Since for the most part I didn't work alone, I can also tell you my colleagues were as diligent as I was and most of my coworkers are born and bred U.S. citizens.

Currently, the H-1B cap is 58,000 per fiscal year (October 1), plus a few more for Master's or above graduates from U.S. universities, graduates in STEM and Singaporean/Chilean citizens. Most are gobbled up by IT, but not all are. The rest are for other professionals whose jobs require at least a U.S. bachelor's or foreign equivalent or above (scientists, accountants, etc.) and a good chunk is reserved for ... fashion models of acclaim who don't rise to the level of supermodels (for whom the O-1 extraordinary ability category best fits). In other words, engineers are not the great majority of H-1B recipients.

Moreover, using a source such as CounterPunch, which provides no back-up to its assertion that H-1B workers lower the wages for everyone else, is not beneficial. Since there are 58,000 H-1Bs available per given year as opposed to millions of workers, that's a rather small percentage of workers with seemingly amazing powers to determine wages for everyone else???? It is rather silly as an argument. Additiionally, before we forget, it is actually rather expensive for employers to hire anyone in any visa category (H, L, E, O, etc.). By law, employers are required to pay the filing fees (currently $2,325 for a new H-1B) for the H-1B as well as some other visa categories. Moreover, they also pay the legal fees. In other words, if a company wants to hire anyone on a visa status, you have to tack on an additional $5,000 to $10,000 or more in legal fees from the get-go, without any guarantee that this person will actually qualify and be approved for any visa.

If anything, the great majority of fraud comes from the L-1B visa - intracompany transferee with 'specialized knowledge' - a visa classification that is rife with abuses because there are no prevailing wage requirements, no education requirements or anything else to prevent a lousy employer to pay nothing to the workers and treating them like indentured servants. L-1Bs are not even required to be paid in U.S. dollars and the cost of an L-1B is much lower than an H-1B. For IT companies, the L-1Bs are much easier to obtain, cheaper, faster and not subject to the Congress-mandated cap. Indeed, this is how many companies can bring in 10 workers for the price of one U.S. worker. The H visa program is much more restrictive, more expensive, slower, much more regulated and much more frequently audited.

The J visa is not an employment-based visa. An employer does not petition for J-1 visa workers. A J visa is for trainees who are allowed a maximum of 18 months before being subjected (in most cases) to a two-year residency requirement (meaning that they have to remain abroad for two years prior to being able to apply for other visa classifications). In order for someone to obtain a J visa, s/he must make an application with a third-party NGO or government agency that has training programs available. Normally, there is a training program in place with benchmarks and ways to measure performance or learning objectives. However, many of these third-party NGOs use this J program as an 'intern' and 'unpaid trainee' program, circumventing the aim and true goals of the J program, which initially were to expose foreign trainees to American ways and culture. Again, this is not an employer-based visa, so the fault lies in these third-party NGOs that offer these fraudulent programs.

And, finally, the famous (or rather infamous) labor certification video. First of all, the labor certification is NOT related to H-1B visas. The labor certification is Stage I for those already working in the U.S. on a visa who are seeking to become U.S. permanent residents via employer sponsorship (in other words, those who want to get a green card). There are basically two main ways to get permanent residence: via family sponsorship or via employer sponsorship. For most who are on an employer-sponsored visa, the labor certification process will be the first step.

I'm not sure when this video was made, but since May 2007 the new PERM rules have been in place which dictate various compliance matters for the employer: (1) employer must pay all expenses including legal fees and employee cannot be asked to reimburse or have their pay deducted; (2) the employer must request a prevailing wage determination from the DOL and (3) must pay at least the PW amount or more; (4) the ads must run for two consecutive Sundays in a local newspaper and (5) for professional positions there are additional recruitment criteria; (6) any resume received must be screened and if the applicant appears to meet the minimum qualifications for the job, then the applicant must be interviewed but can be disqualified if s/he is not willing to accept the wage offered and/or s/he is not a U.S. citizen or green card holder. Please note, however, that the job ad cannot be tailored to the alien's work or work experience.

These PERMs are audited consistently and very often by DOL. In fact, lately they are pretty much auditing all of them. Not all get approved and it does happen that an applicant is successfully interviewed and hired, thus stopping the process (I just had this happen).

However, the PERM and H-1Bs have nothing to do with one another. H-1Bs don't require ads in the paper or proving your recruitment practices, while PERMs do.

Lastly, as a legal immigrant myself, I'd like to point out that some posters say jobs should be for U.S. citizens only. That's not correct, as per the law. Any job - unless it's a certain federal job - is open to anyone who can legally work in the U.S. That includes U.S. citizens AND lawful permanent residents (a/k/a 'green card' holders), as well as a few others who are authorized to work for any employer without restrictions (for instance, people in the process of getting their green cards who have Employment Authorization Documents - EADs - as well as certain asylees and refugees). In other words, the only way a job can be for U.S. citizens only is for that job to be a federal job and/or one that requires security clearances. All other jobs are open to any of the categories above.