So the new immigration bill would increase visas for high tech jobs. How will this help us again?

[WilmywoodNCparalegal]

74. A couple of responses

First of all, in my position I am responsible for knowing where anyone who possesses a visa for which the company serves as the petitioner is, is going or not going. Everything that is signed under the company's name is signed under penalty of perjury. I take that responsibility seriously and I do not tolerate any fraud or misrepresentation. So, yes, I do know the comings and goings of all these employees. I know how much they earn, when their visas run out, what their job offer letter looks like, what their qualifications are, etc. I also have access to payroll so I can check at any time to ensure they are indeed paid properly.

If an H-1B systems administrator is paid $30K, then - unless the employer is committing fraud - that wage will be at least equal to the prevailing wage. The DOL determines that wage - not the employer or an attorney or anyone like me. The prevailing wage is widely accessible to anyone online. If a person believes the prevailing wage determined by DOL is bunk, then DOL needs to be contacted and complaints need to be directed at them, not the foreign national or the H-1B visa or USCIS or the employer.

Again, there is no advertising in connection with the H-1B if the employer is not H-1B dependent or a willful violator. There are headhunters that advertise H-1B sponsorship for candidates. However, USCIS has severely curtailed the activities of third-party petitioners such as headhunters and outfits like Tata, Infosys, et al. I'm not sure why they are contacting you, but I also get headhunters calling me for crazy positions in Alaska or even Canada all the time, though I'm not going anywhere. In any event, the regulations for H-1Bs are clear. There is no advertisement requirement for H-1Bs, unlike the PERM.

I think that the situation you are describing is for an H-1B-dependent employer and/or willful violator. H-1B dependent employers and/or willful violators are those outfits that employ a great percentage of H-1B visa holders (over 15% of the workforce) or that have violated H-1B regulations These emplooyers must make additional attestations to the DOL. They are required to pay extra fees and are required to demonstrate that they have recruited U.S. and other authorized workers. This is probably what happened. If that's the case, these are employers and agencies I'd avoid at all costs. A legitimate employer will not be H-1B dependent or a willful violator.

As for job duties, I think that I fall in the category of 'I do much more than what's in the job description.' It happens frequently and not just for visa holders. However, in many companies, people like me have access and control over job descriptions. I also talk to foreign nationals and I do ask how things are going. As I mentioned previously, being an immigrant myself I do not tolerate anyone who takes advantage of any worker - regardless of immigration status.

As for the performance issue, in many cases the person who made the hiring decision and was aware of the immigration status of the applicant is not usually the one in charge of reviewing performance at my employer. In most cases, there are more than one person who review performance for a single employee.

I also want to clarify that I don't work in an IT company, but we do have a few IT divisions since we have quite a large scope of business (without going into specifics).

I have also worked at an IT company - in fact, one of the biggest and best known ones. I don't remember how performance was evaluated then.

I am not saying fraud doesn't exist or that the system is perfect and error-free... au contraire. But I do think that sometimes we are missing the biggest culprit of visa fraud by concentrating on the H-1B. What is the biggest culprit, you ask?

In my professional opinion, there is no greater culprit than the L-1B visa. It has no cap, no restrictions, no prevailing wage requirements, no education requirements, etc. All you have to ensure is that the employee must have worked at an overseas branch or subsidiary or HQ or affiliate for at least a year within the past 3 years and that s/he must possess 'specialized knowledge' which is rather vague.

The L-1B visa is where I have seen lots of abuses with my own eyes. I have seen the deplorable conditions in which lots of L-1B workers lived. The Jersey City, NJ, waterfront apartments are full of these workers.

In the end, if you do see any instance where any visa is being utilized poorly or fraudulently or if you suspect anything wrong, please please please contact USCIS or ICE or DOL. They do take that stuff seriously, in great part thanks to Obama's compliance and enforcement efforts. The only way we can make the system better is by finding those who abuse it.

Sorry, lots of 'chaff'.. or what I call my paycheck