Portland Herald Series Part 2
Portland Herald Series Part 2
Date: Wednesday, September 27, 2006 1:56 AM
<<<<< JOB DESTRUCTION NEWSLETTER No. 1562 -- 09/27/2006 >>>>>
The second installment in the Portland Herald series was published on
9/25/2006.
In order to fully comprehend these two articles it's necessary to
understand the difference between a "Labor CERTIFICATION Application" and a
"Labor CONDITION Application". The similarity of the names causes untold
confusion among the public and the media. Much of the myth that employers
must look for American workers before hiring H-1Bs is caused when the two
terms are confused.
Hopefully I can explain this without confusing you further or making your
eyes glaze over!
***** Labor Certification Application *****
Before a company can petition for an employment based green card for a
foreign employee, it must file a Labor Certification Application with the
U.S. Department of Labor. This process involves several steps, including
having the company advertise the open position in local media and ensuring
the wage to be paid the foreigner at least meets prevailing levels.
***** Labor Condition Application *****
Before a company can petition for an H-1B visa for a foreign employee, it
must file a Labor Condition Application with the U.S. Department of Labor.
The company must give assurances that they will pay the foreign workers a
prevailing wage. Most important to remember is that employers don't have to
show that they looked for an American to fill the job.
When most people talk about LCAs, such as what you can find in the online
database, they are almost always referring to the Labor Condition
Application. The LCA is required for both green cards and H-1B visas, but
the Labor Certification is only required for green cards. LCAs are also
required for H-2B visas.
The terminology can be quite confusing. It's easier to grasp if you use the
LCA database at:
http://www.zazona.com/LCA-Data/
One of the key differences between the ZaZona database (now
JobDestruction.com) and the one at H1B.info is that ZaZona contains LCAs
for green cards, H-1B, and H-2B visas, while H1B.info only has LCAs for
H-1Bs.
Now that all of you understand these two terms (and you understand, right?)
let's examine a very important but subtle passage in the first article.
In 2004 and 2005, 29 companies filed certification applications
through Maine for 10 or more green cards for software engineers
and related positions, according to state records. Combined,
they applied for 800 green card certifications.
The positions called for an alphabet soup of programming
skills - C++, J2EE, XML, PL/SQL and other languages. The green
card applications were for people who were often already here
in the United States, working on temporary visas.
Companies filed for green cards -- but the important thing is who they
filed for. They filed labor certification applications for H-1Bs that were
already on the payroll; but the certification process requires that
employers look for qualified Americans first.
Obviously they won't consider an American if the job is already filled by
an H-1B. So what is a company to do?
Their dilemma is exemplified by the fact that they already hired an H-1B
for a job that they didn't want an American for. They solve the dilemma by
faking the certification process. DOL bureaucrats go along with the charade
by giving it a big rubber stamp. All of this may sound like fraud, but it
isn't because the law is riddled with loopholes which enable companies to
play this game without being prosecuted.
Later on in the article this charade is explained but the length of the
article makes it somewhat difficult to put this together. Fortunately for
you I have spent hours studying this in order to send you my FREE
newsletter!
If fully qualified Americans apply for the job, the company is
supposed to hire them before foreigners. But according to the
U.S. Department of Labor's auditors, most position-based green
cards are filed for employees who already hold the jobs with visas.
Much of the first article concerns companies in Maine that seem to be
nothing more than boiler rooms to process visas, and to send the foreign
workers to other states. As shady as the operations are, the DOL claims
that what they are doing is legal. Unfortunately the DOL is probably
correct.
Bodyshops prefer to set up shop in Maine because that state rubber-stamps
visas very quickly, and perhaps more importantly the prevailing salaries in
Maine are low compared to other states. The bodyshops hire the H-1Bs for a
Maine salary, and then transfer them to states like New York or California
where wages are higher. It's a smoke-and-mirrors scheme to underpay H-1Bs
and undercut Americans.
Maine Labor Commissioner Fortman said that companies might have
wanted to bring workers in through the state so they could pay
the workers less. Prevailing wages in Maine are generally lower
than in urban centers of states such as California or New Jersey.
Towards the end of the first article we get treated to a bit of corporate
propaganda:
Paula Collins, vice president of government relations at Texas
Instruments, said less than 3 percent of its total U.S. work
force of 15,000 is here on H1B visas - roughly 450 people. By
the end of the year, she said, the company expects to make
between 300 and 400 green card applications.
TI claims that just 3% of its workforce are H-1Bs -- but that percentage is
of the entire TI workforce which includes positions that H-1Bs aren't
typically used for such as janitors, secretaries, dock loaders etc. The
percentage would be far higher if only TI's engineers and programmers were
used for the base figure.
I hate to conclude this newsletter by agreeing with an AILA lawyer, but
there is a lot of merit to the following statement.
"Is it possible to game the system? I guess it is," said
Theodore Ruthizer, past president and general counsel of the
American Immigration Lawyers Association and a lecturer in
law at Columbia Law School. "My sense is the allegations of
fraud and abuse are way overstated and they're not a
serious problem."
Most companies don't defraud the H-1B system because there are so many
loopholes they can use to legally game the system. Even unscrupulous
corporations like Enron were careful to follow the rules and regulations
for H-1B and L-1 visas -- see the newsletters "Enron Secrets parts 1 and
2".
Fraud isn't the worst problem with H-1B and if all of the fraud was cleaned
up it wouldn't improve the situation for American workers very much. The
real problem we face is one of labor arbitrage where workers from poor
third-world countries are flooding into the U.S. As long as foreign labor
is allowed to affect supply and demand in the labor market American workers
will continue to suffer.
I posted a comment at the end of the second article. Hope to see some of
yours soon!
+++++++++++++++++++++++++++++++++++++++++++++++++++
Articles for Sunday, September 24, 2006
http://pressherald.mainetoday.com/news/immigration/060925imm.html
Gaming the system?
http://pressherald.mainetoday.com/news/immigration/060925imm2.html
Holders of visas often picked over U.S. workers
+++++++++++++++++++++++++++++++++++++++++++++++++++
http://pressherald.mainetoday.com/news/immigration/060925imm.html
Gaming the system?
By MATT WICKENHEISER, Staff Writer
Monday, September 25, 2006
Staff photo by John Patriquin
Vaughn LeBlanc was working for the Maine Department of Labor in 2004 when
his office was suddenly swamped with applications for foreign high-tech
workers.
Telegram Investigation: Foreign Labor
More Information:
Glossary
Vaughn LeBlanc became swamped in late 2004, when applications for foreign
high-tech workers unexpectedly poured into his Maine Department of Labor
office.
"I had no room in my office. We would fill a box every other day, they were
stacked five or six high, going down the hall," said LeBlanc, a foreign
labor specialist for the department until he retired in early 2005.
"I felt something was wrong," he said. "I personally found it hard to
believe we needed 1,000 more software engineers in Maine."
In almost two decades of handling foreign labor requests in Maine, LeBlanc
had dealt with the seasonal need for housekeepers at York County resorts,
Canadian lumberjacks in the northern forests and chefs for Chinese
restaurants throughout the state.
But he had never experienced anything like that flood of paper.
LeBlanc was seeing a demand for skilled foreign labor that didn't square
with industry needs in Maine.
As the boxes of paperwork piled up in Maine and other rural states, foreign
labor experts came to understand what they were seeing: Small companies
moving ahead of federal immigration system changes scheduled for March 28,
2005, were flocking to rural states, hoping that their applications for
foreign labor would be processed quickly and efficiently.
Their strategy has some questioning whether those companies broke federal
laws or just slipped through the system via numerous loopholes.
"I think the state was being used," LeBlanc told the Portland Press
Herald/Maine Sunday Telegram.
While the system has changed, state officials and government auditors worry
that the problems may persist in other forms.
A number of Maine businesses legitimately apply for green cards, hiring
foreign doctors, engineers and other professionals to fill needs in the
state's work force. And experts in immigration law suggest abuse of the
system is minuscule.
"Is it possible to game the system? I guess it is," said Theodore Ruthizer,
past president and general counsel of the American Immigration Lawyers
Association and a lecturer in law at Columbia Law School. "My sense is the
allegations of fraud and abuse are way overstated and they're not a serious
problem."
LeBlanc handled the first step in applications to the federal foreign labor
system. He took in paperwork from companies applying for green cards -
federal authorization allowing their foreign employees work and live here
indefinitely. The companies would file labor certification applications
with LeBlanc. Labor certification is the beginning of the complex green
card system.
After LeBlanc did a basic check of the companies and their candidates, he
sent their labor certification applications to the U.S. Department of
Labor's regional office in Boston.
His role as gatekeeper had three distinct parts:
n LeBlanc made sure the companies were valid Maine employers by confirming
that they had an unemployment insurance account with the state. If the
account was set up, the company had employees working in Maine.
n He required each company to advertise the positions it wanted to fill
with foreign workers. LeBlanc would make the firm advertise locally and
often regionally, to see if Americans were interested in the jobs. Many of
the jobs were advertised in the Maine Sunday Telegram, the Boston Sunday
Globe and other newspapers.
n He also checked to see that the firms planned to pay the green card
employees at least as much as American workers in the same jobs in the same
areas. This is known as the "prevailing wage," and can vary from town to
town, state to state. For instance, the prevailing wage for a computer
programmer working in Fort Kent will differ from a computer programmer
working in Portland.
There are 31 different "labor market areas" in the state of Maine alone,
breaking down prevailing wages to a local level. LeBlanc checked those
wages to ensure American workers' pay scales weren't undercut by foreigners
willing to do the work for less.
After establishing those specifics, LeBlanc would send the labor
certification applications to the U.S. Department of Labor. An approval
there meant the company could petition the Department of Homeland
Security's U.S. Citizenship and Immigration Services for a green card.
According to the federal laws that set up the green card system, that labor
certification means that the U.S. Department of Labor certifies to the
Department of Homeland Security that there are not enough U.S. workers
"able, willing, qualified, and available ].].].] and at the place
where the alien is perform the work" to take the job. The U.S. Labor
Department also certifies to Homeland Security that "the employment of the
alien will not adversely affect the wages and working conditions of
similarly employed United States workers."
If the U.S. Department of Labor certifies the labor certification
application, then companies can petition Homeland Security for a green
card. Homeland Security's Citizenship and Immigration unit checks out the
companies to make sure they're eligible to bring over foreign workers.
After approval by Homeland Security, the State Department interviews the
foreign workers - if they're not in the United States already. If they're
here under a temporary employment permit, Citizenship and Immigration
interviews them. Once the State Department or Citizenship and Immigration
interviews the worker and signs off, they get the green card.
ut that first part of the federal green-card system - the foreign labor
certification leg of the journey - changed on March 28, 2005. That change
took the states almost entirely out of the equation. After the change,
companies applied for labor certification directly online to the U.S.
Department of Labor.
LeBlanc expected to see a "trickle of applications" beyond the normal flow,
prompted by the pending change in the system. Instead, he saw a deluge.
"In October of 2004, it hit," he said, "I started seeing massive amounts of
applications coming in from attorneys' offices in groups of 15 or 20."
All were for software engineer and programmer positions.
In 2004 and 2005, 29 companies filed certification applications through
Maine for 10 or more green cards for software engineers and related
positions, according to state records. Combined, they applied for 800 green
card certifications. The firms had names like Net Matrix Solutions, which
filed for 11 labor certification applications; Sriven Systems, which filed
for 27; BCC USA Inc., for 29.
The jobs paid $65,000 and up, according to the paperwork. The positions
called for an alphabet soup of programming skills - C++, J2EE, XML, PL/SQL
and other languages. The green card applications were for people who were
often already here in the United States, working on temporary visas.
The companies were "staff augmentation firms" - unofficially called "body
shops" in the industry - that file immigration papers for foreign high-tech
workers and place them as contract employees with larger companies or
government agencies. Essentially, they are temp agencies that are staffed
with foreign high-tech workers.
The workers contract on projects for anywhere from a few months to a few
years, moving around the country. The clients pay the staffing agency for
the employees; the agency takes a cut and then pays its employees.
By law, said LeBlanc, these firms needed to be doing business in Maine to
file for labor certifications here - that's why he checked to make sure
they had unemployment insurance accounts. The workers were supposed to be
employed within Maine, too.
The labor certification applications the companies filled out were called
the ETA 750 form. It contained sections requesting, among many things, the
name and address of the employer, and the "Address Where Alien Will Work."
Under instructions for filling out the form, the U.S. Department of Labor
explains companies must "enter the full address of site or location where
the work will actually be performed."
The ETA 750, like many federal documents, also has a boxed section
prominent at the top of the form that reads, in part, "To knowingly furnish
any false information in the preparation of this form ].].].] is a
felony punishable by $10,000 fine or five years in the penitentiary, or
both."
In 2004 and 2005, though, many of the firms that said they had offices in
the state had little or no connection to Maine.
Roughly half rented cubicles or small offices at two locations in Portland:
480 or 477 Congress Street. Those addresses belonged to the Portland
Business Center and David Glaser's Executive Office Centers Inc.,
respectively. They offered short-term leases for fully equipped cubicles or
offices, complete with a shared receptionist.
Other staffing firms rented space downtown, near the two business centers.
Joan McCleod, assistant property manager at Boulos Property Management,
remembers one tenant she had from October 2004-October 2005 in Portland's
Time & Temperature building: Axiom Systems Inc.
"They were a tenant, although we never saw them, never laid eyes on them,"
said McLeod. "They had 14 desks set up, computers, radio. No one was ever
there. They sent me priority mail envelopes to mail them their mail (in New
Jersey)."
Axiom filed 160 H1B visa and green card certification applications for
foreign workers. An H1B visa is a temporary permit allowing a skilled
foreigner to work in the United States. Messages left at what seems to be
the company's new offices in Pittsfield, Maine, in September weren't
returned.
Many of the companies no longer have any presence in this state.
In at least five cases, the businesses have since closed their offices. In
six cases, the newspaper has been unable to determine any actual connection
to Maine. A few, like BCC, are still here and say they plan to bring
workers to Maine.
s LeBlanc began checking out the various companies, he found many that
didn't have state unemployment accounts. They weren't valid Maine
employers, and he denied their applications outright.
Other firms had accounts, though, which they had just set up recently.
These firms were paying a very low amount for unemployment insurance, which
would equate to having few employees here.
The fact that many such companies suddenly appeared in Maine - at a handful
of addresses - and were requesting large numbers of foreign workers raised
suspicions, said LeBlanc.
"Maybe they're expanding, but .].]." LeBlanc said.
LeBlanc challenged the businesses.
"I contacted one of the companies, I said - 'I don't believe you're
there,"' LeBlanc said. "They sent me photos of a woman with a laptop
computer, and a piece of paper with the company name above her, an outside
shot of the (Portland Business Center), pictures of plants and the Xerox
machine."
Other Maine Labor Department units also were seeing the sudden increase in
activity. Between 2004 and 2005, Maine saw 800 certification requests for
green cards for software engineer, programmer-type positions - an increase
of 693 percent from the two years earlier. Between 2002 and 2003, there had
been only 101 requests.
The Bureau of Labor Statistics became overwhelmed with the hundreds of
prevailing wage determinations it was being asked to make. As LeBlanc
checked on more and more companies, the unemployment bureau began
investigating more work sites, said Lloyd Black, a tax section manager with
the Maine Labor Department. Over a four-month peak of activity, the bureau
was investigating at least two or three sites a week.
"When we went out, we'd find empty cubicles. We'd find a table, maybe a
desk, a chair, a phone, maybe a laptop, sometimes a person," said Black.
"If you'd call the phone number, you'd get an out-of-state cell phone."
LeBlanc said he called the U.S. Department of Labor's Boston region office
to notify them of the problem. Software staffing companies were playing the
system, he told them, exploiting loopholes. They were applying for
immigration papers through Maine, though they had tenuous connections here,
at best.
"They said there was really nothing they could do; they didn't see any laws
were being broken," said LeBlanc. "I was told to just keep processing,
they'll check and, 'We'll make a decision if it's an issue."'
The U.S. Department of Labor declined to specifically address these
criticisms, despite repeated newspaper inquiries.
LeBlanc also noted his suspicions on some of the applications before
sending them on. For example, on one application released by the state to
the Portland Press Herald/Maine Sunday Telegram, he wrote in boldface,
typed letters, "Problem Case: The employer's tax account has been closed as
they have no employment in Maine yet they applied to bring workers into
Maine. Not a valid Maine employer."
The Department of Labor certified that application anyway - as it did with
many others that LeBlanc had flagged.
Labor issued a brief statement when asked about the surge in numbers and
the charge by LeBlanc that the federal government ignored the problem.
Spokesmen for the department would only comment as unnamed sources, until
an e-mail was sent directly to Secretary of Labor Elaine L. Chao, asking
for comment. Asked a series of questions by e-mail, the Labor Department
answered briefly.
"Maine's experience before the new (green card) system took effect March
28, 2005, was typical of that seen around the country. In the months
leading up to the expiration of the old program, an estimated 40,000
foreign labor certification applications were received nationwide over and
above the normal expected number of filings," Labor spokesman John Chavez
responded in an e-mailed statement.
The statement did not address the charge that the U.S. Labor Department
turned a blind eye to questionable filings amid that increase in activity.
By late 2004, LeBlanc had drawn enough attention to the problem that
various officials at the Maine Department of Labor met to discuss it,
including Commissioner Laura Fortman and Assistant Attorney General Liz
Wyman. They realized there were systemic issues, and the state made
LeBlanc's concerns a priority for tax investigators.
"We were so concerned, (we said) 'My gosh, are we unknowingly facilitating
something that's not working the way it's supposed to be?"' said Wyman. "We
weren't sure what we were looking at, but none of us felt it was
legitimate. It wasn't adding up."
They couldn't find any Maine laws being broken. If there was any issue, it
was federal, said LeBlanc.
"They met the (letter) of the law. I don't know ethically if it was
right].].].] I guess that's all you can say," said LeBlanc.
Laura Boyett, director of the Bureau of Unemployment Compensation, said her
department did forward the information to the U.S. Department of Labor's
Inspector General.
"I think they took us seriously" Boyett said. "(But) there was no
follow-up. That's part of the frustration, we don't know what happened."
Whether or not laws were being broken, the contracting companies seemed to
be playing the system, said LeBlanc.
It was fairly clear that if any of these immigrants were hired, they
wouldn't be working in Maine, but at sites around the country, LeBlanc and
his counterparts in other states said. The jobs weren't really going to be
here.
That's an issue because LeBlanc - per federal regulations - was checking to
make sure they paid the prevailing wage for Portland, and was having them
advertise for the openings in area publications before sending the labor
certification applications on to the U.S. Department of Labor's Boston
office.
It was not LeBlanc's job to investigate where the foreign workers actually
went, if they got a green card. However, he had some strong suspicions
about what happened.
"They're definitely taking jobs away from American workers because they're
being certified in Maine and being placed in New Jersey, Silicon Valley,"
said LeBlanc. "Most of the people coming in would go anywhere."
LeBlanc's counterparts in the other states had similar experiences at the
same time.
Francis Morrissey handled foreign labor certification requests in New
Hampshire, and saw companies "dumping unusually large numbers of
applications, 40 or 50 at a time."
"It seemed obvious that these people did not have the work there, the work
was not going to be done here," he added. "If I saw they requested 40
people to be processed and only had one person (on the payroll), that's a
red flag."
New Hampshire had been seeing between 300 and 400 green card applications a
year, maybe a few more, said Morrissey. By the time the March 28, 2005,
switchover came, the number had jumped to about 1,500 a year, said
Morrissey.
Vermont saw applications double, said Terry LaManna, program coordinator
for the state's labor certification program.
Madhavi Bhadbhade, the foreign labor certification coordinator in Nebraska,
said she processed hundreds of what she saw as suspect applications during
that time.
"I don't see those companies around any more," she said.
Morrissey said he believed the federal officials did what they could.
"I felt that they were understaffed, and in cases where there was serious
concern, they did turn it over to the Office of Inspector General, and
something did happen," said Morrissey.
Morrissey was referring to the federal investigation of Cybersoftec, a New
Jersey firm that had opened offices in both New Hampshire and in Maine, at
the Portland Business Center. The president of Cybersoftec, Narendra V.
Mandalapa, has pleaded guilty to one count of immigration fraud and is set
to be sentenced Nov. 27.
But Vermont's LaManna and LeBlanc said they were frustrated with what they
saw as a lack of response from the federal Labor Department.
"We were complaining, but Boston would say something to Washington, and I
guess Washington just seemed to want ignore (it)," said LaManna. "It seemed
like they never really wanted to deal with the tough issues."
"At some point," LeBlanc said, "you just start banging your head on the
wall. Does anybody care but me?"
LeBlanc, Morrissey and LaManna suspect the companies focused on their
states to take advantage of quick green-card paperwork processing times in
rural locations.
The companies weren't sure how the March 28, 2005, change would affect wait
times, so they looked to get their paperwork into the system through states
that they knew processed the forms quickly.
Other, busier states like New York or California took months or years to
process the certifications that lead to green card applications. Maine's
processing times were measured in days, or weeks - as they were in Vermont,
New Hampshire and Nebraska.
Some of the companies said that Maine's processing speeds were a factor in
their decision to open offices here, but not the main one. Many said they
were trying to tap into what they saw was an underserved market, bringing
contract workers to Maine.
The companies said on the federal forms that the jobs would be in Maine, at
specific addresses. In some cases, they added "and other unanticipated
locations throughout the United States."
George D. Hepner III, a local immigration law attorney with Bernstein Shur
in Portland, said he saw a lot of questionable stuff cross his desk over
the past few years as potential clients attempted to retain his services -
"labor certifications I knew were fraudulent."
The Portland Press Herald/Maine Sunday Telegram asked Hepner to review
dozens of the files it had obtained from the state, and he said much of
what he saw didn't make sense. One detail, in particular, that was present
on many of the applications made him suspicious.
"The address - 480 Congress Street; it's an office with a secretary. You
know this guy's a jobber," said Hepner.
He went on to explain what he meant.
"He's just bringing in people and sending them God knows where," Hepner
said.
Hepner said that the changing federal law was probably the main motivation
for filing through Maine. But, he added, filing through Maine also allowed
the companies to list prevailing wages from here on the forms.
Maine Labor Commissioner Fortman said that companies might have wanted to
bring workers in through the state so they could pay the workers less.
Prevailing wages in Maine are generally lower than in urban centers of
states such as California or New Jersey.
According to the U.S. Department of Labor, software engineers in Portland
make about $10,000 a year less than their counterparts in Middlesex County,
N.J. The same positions in Silicon Valley pay about $20,000 a year more
than they do in Maine. U.S. Department of Labor regulations allow a company
to use its headquarters location to determine prevailing wage for a roving
employee if the eventual job site is unknown.
"If they can pay the guy $75,000 (the Maine wage) in Jersey, they are
gaming the system," said Hepner.
The problem is that companies with minimal operations in Maine - or nothing
here at all - have been calling it their home base.
"They were just calling the Maine place their headquarters, or the Vermont
place their headquarters," said LaManna, of Vermont. "In a lot of cases,
they wouldn't even have a Maine or Vermont telephone number."
Added New Hampshire's Morrissey, "If you call an office with someone
answering the phone and a couple of other people the corporate
headquarters, and there are literally hundreds of other employees, there's
something odd there."
A third possible reason for filing through rural states is so that foreign
workers face less U.S. competition for the advertised positions.
hen a company files for a green card for an employee, it must advertise for
the position. For software-based positions, ads in rural states are less
likely to draw a slew of applications than they would in areas where the
jobs will actually be done, like New Jersey, Virginia or Silicon Valley.
If fully qualified Americans apply for the job, the company is supposed to
hire them before foreigners. But according to the U.S. Department of
Labor's auditors, most position-based green cards are filed for employees
who already hold the jobs with visas.
Foreigners often work for these staffing firms because the companies
specifically promise they will file for a green card for them. In those
cases, they really don't want to have an American take the job.
"You're much more likely to find qualified people in a metropolitan area
than in rural markets," said LaManna. "I do think people should be
advertising where the job is to see if people can do the job."
The Portland Press Herald/Maine Sunday Telegram tried to locate about 150
foreign workers who had labor certification applications filed for green
cards through the state of Maine in 2004 and 2005, using a combination of
Internet searches and directory assistance. Most phone numbers had been
disconnected, likely because computer consultants working for temporary
staffing firms generally don't work in any one location for very long. But
about 15 of the phone numbers were still active.
Eleven of those workers didn't return messages left by the newspaper. Four
of these workers agreed to speak with the newspaper. Only one said he had
ever worked in Maine.
Officials from the rural states are concerned that misuse of the system may
become even more common with the automation of the process.
"Our concern is what is happening now that we don't know?" said Boyett at
the Unemployment Bureau. "That system check has been eliminated, the big
question that's left for us is how will we ever know?"
The U.S. Department of Labor's Office of Inspector General raised the same
concerns ahead of the switchover in a 2003 report. The new green card labor
certification application system "will significantly speed up the time
required to process applications," auditors wrote.
"However," they continue, "the system will eliminate most, if not all,
human intervention or review/screening of 80 percent of applications
received. In our opinion, the system will result in reduced controls and an
increased risk of fraud."
Labor spokesman Chavez said the new system will fight fraud, not increase
it.
For many U.S. technology companies, the green card system is an important
part of their legitimate efforts to use foreign labor to supplement their
domestic work force.
Paula Collins, vice president of government relations at Texas Instruments,
said less than 3 percent of its total U.S. work force of 15,000 is here on
H1B visas - roughly 450 people. By the end of the year, she said, the
company expects to make between 300 and 400 green card applications.
"Texas Instruments seeks green cards for virtually all of the employees we
have hired on H1B visas. And we begin the process as soon as they are
hired," said Collins. "Unfortunately, unreasonable caps, unrealistic
allotments and extreme administrative delays can hold these people in legal
and professional limbo for years."
he said increasing access to foreign workers is important to her firm.
"We know that more than half - and in some disciplines two-thirds - of the
advanced degrees awarded at U.S. universities in science and engineering
are earned by foreign nationals. Due to a number of factors - including
demographic shifts, interest, poor preparation, and lack of awareness of
opportunities - we also know that fewer U.S. students are choosing to study
in many of these fields," said Paula Collins. "On top of this, U.S. high
school students perform poorly in comparison to their international peers
on math and science assessments.
"We need access to that talent, especially those that have been doing
cutting edge nano-electronics research. So do our competitors. Let me tell
you, there is a constant scramble for these people."
She said Texas Instrument officials have heard the allegations about fraud
in the foreign labor system.
"I can only tell you that TI is scrupulous about following the letter of
the law. Among the incentives to do that is the fact that companies that
break the law are no longer allowed to participate in the H1B Visa program.
That would be a major problem for TI," Collins said.
Ruthizer, the Columbia Law School lecturer, said he thought cases of abuse
are "a drop in the bucket." According to the U.S. Citizenship and
Immigration Services division of the Department of Homeland Security, the
government issued 782,000 green cards in 2005."To the extent they exist, I
think they tend to be focused in these so-called body shops. I think the
Labor Department recognizes that," Ruthizer said of actual cases of abuse.
But, he added, they do obviously exist."It's not an absolutely clean
program," he said. "I don't think it's a tainted system or a system that is
so rife with fraud or abuse.
"But you've put your fingers on some of it, (and) the Labor Department
probably does not have the resources or incentives to go and investigate
every one of these cases."
Labor's Office of the Inspector General said in its 2003 report that it has
found illegal operations in Virginia, New Jersey and other states, in which
approved labor certifications were illicitly sold to foreigners for between
$4,500 and $20,000.
The Inspector General auditors also noted in a report late last year that
the U.S. Labor Department's hurry to eliminate the backlog of labor
certification applications may be opening the green card program up to even
more fraud. The backlog was created in the switchover from the old green
card labor certification process to the new.
According to the auditors, as of August 2005, the U.S. Labor Department had
312,438 green card labor certification applications pending. The department
expected to get rid of the backlog by 2007, the auditors said.
"We are concerned that in eliminating the backlog, many applications that
should be denied are being certified," the auditors said. "Previous audits
projected that 69 percent of the applications were either misrepresented or
incomplete.
"Given that the foreign labor certification program is one of the few
avenues available for immigrants who want to enter the U.S. legally, and
the large amounts of money unscrupulous agents or recruiters can earn from
aliens seeking entry into the country, there is a strong incentive to
commit fraud or abuse, which can have adverse effects on American wages and
working conditions."
Staff Writer Matt Wickenheiser can be contacted at 791-6316 or at:
mwickenheiser @pressherald.com
+++++++++++++++++++++++++++++++++++++++++++++++++++
http://pressherald.mainetoday.com/news/immigration/060925imm2.html
Holders of visas often picked over U.S. workers
By MATT WICKENHEISER, Staff Writer
Monday, September 25, 2006
Telegram Investigation: Foreign Labor
Lisa Perry wanted to leave Washington D.C. and come home to Maine after
living there during the 9/11 attack on the Pentagon, anthrax scares and the
Beltway sniper shootings.
She quit her job designing databases for the U.S. Department of Agriculture
and moved back to the Portland area to live with her parents, returning to
Maine after 13 years away. She worked on personal projects and took care of
her parents' home for about a year, then started looking for an information
technology job in the fall of 2004.
She put out a number of resumes, and one ad in the Portland Press
Herald/Maine Sunday Telegram caught her eye. It was for a $72,000 IT
position, with applications to be sent to the Maine Department of Labor.
She applied for what she thought was a job with the state.
But the labor department was actually forwarding those resumes to a
temporary staffing company that had applied for a green card for a foreign
worker. Advertising the job was part of the process to ensure that no
qualified Americans were available to fill the position.
The staffing company contacted Perry, and she recognized the name: BCC USA
Inc. She had seen other ads for jobs with BCC and hadn't bothered applying.
Job seekers had to apply by snail-mail, and that was a warning sign for
Perry.
"I'm looking for an IT job, a software development job," said Perry. "If I
can't apply by e-mail, if I can't find a Web site, it doesn't sound like a
very real company."
Software staffing companies that flooded Maine in 2004 and 2005 with labor
certification applications for green cards had to advertise the jobs by
law. And they also had to interview Americans who potentially fit the bill,
and list reasons if the jobs didn't go to them.
According to records released by the state to the Portland Press
Herald/Maine Sunday Telegram, a number of Maine residents like Perry
applied to these jobs and were turned down.
Perry vaguely remembered the phone interview with BCC. At the end of the
conversation, she knew the company was a provider of temporary IT labor.
She wanted a long-term position with a company, and she wasn't interested
in the BCC job.
BCC wasn't interested in her, either.
State records released to the newspaper show that BCC Chief Executive
Officer Chinna Rao reported that the company interviewed Perry, and she
wasn't qualified because she didn't have experience with a number of
computer applications.
"They obviously weren't willing to consider someone who had transferable
skills. They were definitely looking for something very specific," said
Perry.
"They weren't looking for someone like me, someone looking for a company, a
place to call home, to stay a long time."
Perry, who has her master's degree in mathematics from the University of
Maine, plus some work toward her doctorate from the University of Maryland,
has since found an IT job in the area.
Jack Wallace, of Cedar Falls, Iowa, also applied for the BCC position. He
hoped to return to Maine, where he had worked in the early 1990s. He
teaches programming at a local community college after losing his IT job
due to state budget cuts, and hasn't worked in software for more than two
years.
"There just aren't a lot of jobs for American computer programmers any
more," said Wallace. "When I got into the business, 20, 25 years ago every
company had their own IT staff. They'd have a need, they'd assign a
programmer to do it. It was all done in-house.
"Somehow it got away from that. People got the idea that they're better off
hiring somebody from the outside to do the work."
Wallace said he clearly remembered his interview with BCC. The interviewer
asked him "very precise" questions.
"I remember thinking, 'Nobody's got that type of knowledge, that they would
just know that type of detail work,"' said Wallace. "I was put into the
situation where I either had to say I've never specifically done that or
just come up with some lies off the top of my head; I kept saying 'I don't
know' because I really don't like to bluff my way through these questions."
He often had those impressions when interviewing for programming jobs,
Wallace said.
"Sometimes I get the idea that the job's wired and they're looking to
exclude people," he said. "Sometimes I just get the idea that people expect
programmers to know everything."
Because Wallace didn't have all the skills BCC required, he also was
unqualified, Rao wrote. Wallace and Perry were two of nine applicants for
the job. All but Wallace were Maine-based job seekers.
BCC Marketing Director Karan Manickam said his Massachusetts-based company
supplies IT workers to different companies. The applicants were turned
down, he said, because the client companies wouldn't accept them.
"That is unfortunately the requirements. The clients have been very
specific these days. If they miss one or two skill sets, they didn't want
(the contract employees), and they wanted (to pay) low salaries," said
Manickam. "I know what kind of feedback I'm going to get from my clients.
They need a carbon copy."
BCC and similar software staffing companies are staff-augmentation firms,
also known in the industry as "body shops." The firms are essentially
high-tech temp agencies, providing skilled computer workers to companies
and governments on a per-project basis. They are generally staffed by
foreign workers. The firms file immigration papers for skilled foreign
workers, bringing them to the United States, and then placing them with
clients. They also file green cards applications for foreign workers who
are already in the United States.
In the case of the job Wallace and Perry had applied for, BCC was
advertising it because it had filed immigration papers to get a green card
for a foreign worker. A green card allows a foreigner to live and work in
the United States indefinitely.
The Portland Press Herald/Maine Sunday Telegram asked a software expert
from Tyler Technologies Inc.'s MUNIS Division in Falmouth to review some of
the requirements for the green card positions from a number of companies
that applied for green cards through Maine.
The results were scattered, with some of the requirements seeming very
reasonable and others not so, said Kirk Cameron, vice president of
development at MUNIS. Cameron, a Canadian national, has been in the United
States for 33 years and is a green card holder himself. He moved here at
the age of 7 when his father got a job with General Electric.
It was sometimes hard to judge whether companies were trying to fill actual
positions, or if they had tailored the requirements so only the green card
applicants could fill the jobs, Cameron said.
In some cases, the requirements clearly matched a very specific software
job, said Cameron. There were also some requirements that Cameron doubted a
single programmer could fill.
"They're hitting so much stuff that no one can be good at them all," he
said. "In general, there are specialists. Here they're looking for it all
in one."
He pointed to one example where the requirements involved experience with
programming languages and applications spanning every part of the software
life span, from conceptualization through development, quality checking,
and even customer support. And those requirements were over several
computing platforms, said Cameron.
It's like going to a restaurant, said Cameron, and expecting the hostess to
seat you, take your order, cook your meal, serve it, bus the dishes and
then wash them.
Staff Writer Matt Wickenheiser can be contacted at 791-6316 or at:
mwickenheiser@pressherald.com
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