How to Hire H-1Bs instead of Americans - For Dummies
How to Hire H-1Bs instead of Americans - For Dummies
Date: Wednesday, June 21, 2006 2:53 PM
<<<<< JOB DESTRUCTION NEWSLETTER No. 1506 -- 06/21/2006 >>>>>
Let's do some role playing today - you play the role of the "employer" and
I'll play the role of the "attorney".
We will play out two scenarios.
Scenario #1
You want to hire 6 special-ed teachers so the first thing you do is to
apply for 6 employer-sponsored green cards. You don't want to even consider
American applicants but as part of the Labor Certification process you are
required to advertise the job openings. To comply with regulations you put
a job ad in the local newspaper but of course at the same time you
contacted a bork in the Philippines to find your el-cheapo teachers.
THE GOOD NEWS: You got more than 6 qualified teachers to apply for the job
so your hiring goals can be met. You can even cherry pick the best ones.
THE BAD NEWS: A qualified American woman applied for the job. That's really
a bummer because you only wanted to hire foreign nationals but regulations
make it difficult to eliminate her. Doggone it, it's always something!
You pace back and forth and get very stressed worrying about how you can
deny that American woman a job without getting into legal trouble, and
finally decide to call an immigration lawyer (played by me).
Fortunately for you, I have all the answers!
After I hear your situation I ask if the woman is qualified for the job.
When you answered yes, I realized that this case will be slightly more
difficult than usual. I give you advice on how to deny employment to the
lady without getting on the government radar screen. Fortunately I'm an
experienced attorney with no ethics, so I give you an arsenal of options to
dump that American lady (Amlady).
My advice to make sure this qualified American is never on your payroll
includes the following action plan:
* Make sure the Amlady isn't an ambitious go-getter. Perhaps she wants your
job, in which case you have to do everything you can to get rid of her. In
this situation it's you against the money grubbing, overly ambitious
Amlady. When it's a question of survival you have to be willing to fight
dirty!
* Be sure to ask the Amlady if she is immediately available to work. If you
are lucky she will say no because perhaps she has to move, sell her house,
or find a new day care center for her young kids. If the Amlady screws up
and says she isn't available the moment you ask her, your problem is
solved. In the off chance a nosy government case investigator ever asks why
you didn't hire the Amlady just say you needed somebody that could start
immediately. Case closed!
* If the Amlady didn't fall for your first question, see if you can trip
her up by asking her questions about the qualifications she stated on the
application. Perhaps you can find something she wrote that contradicts what
she says. If you can trip her up, don't hire her. All you need to do is to
show some doubt that she was lying about her work experience or education
and you are home free.
* Ask the Amlady if she is employed now. If she is, ask her why she wants
to quit her job. Perhaps she will screw up and say something negative about
her employer, or perhaps she will say she wants a higher paying job. You
can refuse to hire her if you can show she is a malcontent or she expects
Cadillac salaries.
* Ask the Amlady if she wants a job with more responsibility. If she says
yes, try to downplay the available teaching jobs by telling her they are
grunt jobs with very little responsibility and not much chance for
advancement. Tell her that she would be better off telling her current boss
that she wants a promotion. If you are lucky her current boss will solve
the problem for you by giving her more responsibility, or she will decide
the job offered by you sucks and she will get lost on her own.
* Ask the Amlady why she wants to be a special-ed teacher. Heck, we all
know you have to be crazy or desperate to take the lousy low paid jobs at
your school - that's why you wanted foreign teachers in the first place
(but of course don't tell the Amlady that or she might suspect you are
discriminatory). If she jokes that she is crazy or desperate, but sure to
use that as a confession that she isn't qualified to be around kids.
* Let her know that you expect all of your teachers to work 12 hour days
and to come in most weekends. Discourage the Amlady with questions about
how willing she is to sacrifice her entire personal and family life for
this menial job that will barely pay enough for food. Be sure to tell her
that this job also requires heavy lifting and the ability to change bed
pans and clean drool off of chairs and clothes. Any negative answer she
gives will probably be good enough to dump her - especially if she isn't
willing to work those long hours.
* If none of the above works to get rid of the Amlady, we can always do a
background check to dig the skeletons out of her closet. There's always
something you can use to deny her the job. Maybe she was behind on a credit
card payment, or perhaps her Social Security number was used by an illegal
alien, or better yet perhaps her ex-husband accused her of child abuse, My
college buddy is a special investigator that never fails to dig the dirt
that my clients need to discriminate against U.S. citizens but he is going
to cost you.
Scenario #2
You own a chain of junk food restaurants and you want to hire some foreign
workers to cook in your filthy kitchens. Of course you have a few questions
to ask me:
* The foreigners you want to hire are too poor to have an email address,
and they probably have never seen a computer in their life. That's a
problem because the application must be filed electronically.
I would let you use the computers in my attorney's office but the g-men
might check the IP address and find out that we are filing fraudulently.
Not good! Make that mistake and I might lose my license to practice law,
and you might be barred from hiring H-1Bs for your kitchen. All you need to
do is to go to the mall across the street to a coffee shop that has a free
computer. Presto! Set up your phony email addresses and you are good to go.
* You know you can get H-1B visas if you call your new workers "Specialty
Cooks", but you are worried that since they will be used as hamburger
flippers you might get into trouble if the USCIS ever raids one of your
restaurants.
My advice to you is to just lie. Nobody is going to check whether you are
telling the truth, and even if they know you are lying they can't prove
anything, so don't sweat it! If anybody asks questions, just say your
"specialty cooks" know how to cook cuisine such as cats, dogs, or even
monkey brains.
* Many of your "specialty cooks" have probably never cooked food - they did
things like picking cabbage, washing cars, or perhaps begging in the
streets. You are wondering if you should answer "YES" on the form that asks
if their previous experience is enough to qualify them to be "specialty
cooks".
My answer: Duh! Of course you say yes. Never, ever, say no!
OK, forget roleplay.
Now you are ready to read the real thing!
The real lawyer's name is Joel Stewart - the employers aren't known.
Joel Stewart gained infamy when he 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).
+++++++++++++++++++++++++++++++++++++++++++++++++++
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?
Question:
The first question: We represent a large number of small restaurant owners
who want to extend offers of employment for qualified alien beneficiaries.
Many of them do not have an email address. How can we file the ETA 9089 for
them electronically? For example, are we allowed to set up an email address
for them if we are duly-authorized to do so? The system warns that this is
restricted to employers only.
The second question: In cases of foreign specialty cooks, do you still need
to answer 'yes' to question H-10 asking whether experience in an
alternative occupation is acceptable? If the answer to that question is
'no', would that be fatal to the application?
Answer by Joel Stewart:
E-mail addresses for Employers -- I think you should take the warnings
seriously. The attorney or agent should not handle this for the Employer.
The computer with IP address should not be one that belongs to the
attorney. We had this problem recently and insisted that the Employer
establish an e-mail. The Employer found a business next door in the
shopping plaza with a computer -- opened an e-mail account and registered
to file the PERM case. Alternatively, the Employer can go to an Internet
Cafe to register the PERM case.
(b) Specialty Cooks -- what do you mean "do you still have to answer
Yes"......Who said you have to answer "Yes"? I didn't understand this
question.
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