Portland Herald Series Part 3
Portland Herald Series Part 3
Date: Thursday, September 28, 2006 12:58 AM
<<<<< JOB DESTRUCTION NEWSLETTER No. 1563 -- 09/28/2006 >>>>>
The third and final part of the Portland Herald Series has been published.
An excellent followup article was published on 9/27. Here are a few
highlights:
"In Maine they're looking for 500 (software) developers? That's absolutely
absurd, but that's how out of control this program has gotten," said Marcus
Courtney, president of WashTech, a unit of the Communications Workers of
America labor union. "There's clearly not that kind of demand in Maine.
"One of the big myths of the program is that there's some kinds of laws. It
literally is like the Wild West," Courtney said. "There's not even a Wyatt
Earp in sight when it comes to reining in the H1B visa program."
The Labor Department "has minimal human intervention during the review
process and the certification approval is simply a rubber stamp, as long as
the (labor condition application) is complete and free of obvious errors,"
the U.S. Department of Labor's Office of the Inspector General said in its
2003 report,
"Even if (U.S. Citizenship and Immigration) did report these cases, current
law precludes (Labor) from using the information to initiate an
investigation. According to officials from Labor, it does not consider
Homeland Security to be an aggrieved party; therefore, Labor would not
initiate an investigation based on information received from, or a
complaint filed by, Homeland Security,"
"I think what your series teaches us is that it isn't enough just to
tighten security at our borders, that as long as legitimate visa programs
like the H1B program can be so easily manipulated or subjected to outright
fraud, that border security - while important - is an incomplete answer,"
said Sen. Susan Collins, R-Maine, chairwoman of the Senate Committee on
Homeland Security and Governmental Affairs.
+++++++++++++++++++++++++++++++++++++++++++++++++++
http://pressherald.mainetoday.com/news/immigration/060926im22m.html
Invitation to fraud
Tuesday, September 26, 2006
http://pressherald.mainetoday.com/news/immigration/060926imm.html
Local company finds foreigners fill a labor need
Tuesday, September 26, 2006
http://pressherald.mainetoday.com/news/state/060927visas.html
Delegation to examine visa abuses
Wednesday, September 27, 2006
+++++++++++++++++++++++++++++++++++++++++++++++++++
http://pressherald.mainetoday.com/news/immigration/060926im22m.html
Invitation to fraud
By MATT WICKENHEISER, Staff Writer
Tuesday, September 26, 2006
Telegram Investigation: Foreign Labor
The U.S. Department of Labor's role in approving visas for skilled foreign
workers is a rubber stamp that exposes the system to fraud, according to
internal audits and a Portland Press Herald/Maine Sunday Telegram
investigation.
Of the 307,771 H1B labor condition applications filed nationwide last year,
99.7 percent were certified by the department, according to a June 2006
U.S. Government Accountability Office report.
The federal law that sets up the H1B visa program is written so that Labor
officials must certify them, even if there's good reason to believe that
applicants don't meet statutory requirements, federal auditors say.
This certification process could hurt American workers and raises national
security issues, critics and auditors suggest, by not providing enough
review of the need for foreign labor in the United States.
During 2004 and 2005, Maine served as a gateway to this system for dozens
of companies, including several with little or no connection to the state.
In some cases, individual companies filed applications for as many as 500
foreign high-tech workers who purportedly would have been working in Maine
communities such as Portland, Augusta and Pittsfield.
"In Maine they're looking for 500 (software) developers? That's absolutely
absurd, but that's how out of control this program has gotten," said Marcus
Courtney, president of WashTech, a unit of the Communications Workers of
America labor union. "There's clearly not that kind of demand in Maine.
"One of the big myths of the program is that there's some kinds of laws. It
literally is like the Wild West," Courtney said. "There's not even a Wyatt
Earp in sight when it comes to reining in the H1B visa program."
Supporters of the program acknowledge that it's not perfect, but suggest
the program isn't as fraught with fraud as its detractors charge.
"It seems to me it's possible to game the system, (but) at least from our
members, 99 percent or more are using it properly," said Angelo Amador,
director of immigration policy at the U.S. Chamber of Commerce.
In Maine, companies such as Wright Express, Fairchild Semiconductor, Idexx
Corp. and others make legitimate use of the system to fill gaps in their
work forces. And nationally, groups such as the U.S. Chamber are pushing to
expand the H1B program, allowing more of the world's "best and brightest"
admission into the country to work at America's high-tech companies.
"We're in a global economy. With these companies, it's very easy to pick up
shop and go somewhere else," Amador said. "It's important to keep these
jobs in the United States."
The first step in the complex process of bringing foreign professionals
into the country is the Department of Labor's approval, or certification,
of a labor condition application.
Companies seeking to bring skilled foreign workers to the United States on
H1B visas must file applications with the department.
Once a company has a certified labor condition application, it can petition
the U.S. Department of Homeland Security's Citizenship and Immigration
Services unit for an H1B visa, which is a temporary, three-year work permit
for an employee that can be extended another three years.
The Labor Department "has minimal human intervention during the review
process and the certification approval is simply a rubber stamp, as long as
the (labor condition application) is complete and free of obvious errors,"
the U.S. Department of Labor's Office of the Inspector General said in its
2003 report, "Overview and Assessment of Vulnerabilities in the Department
of Labor's Alien Labor Certification Programs."
And that rubber-stamp program is a magnet for those who want to defraud the
system, the auditors suggested in the same report, as evidenced by
continued findings of fraud in the system by their office.
"These cases involve fraudulent (labor condition applications) that are
filed on behalf of fictitious companies and corporations, individuals who
file petitions using the names of legitimate companies and corporations
without their knowledge or permission, and immigration attorneys and labor
brokers who collect fees and file fraudulent applications on behalf of
their clients," auditors wrote.
According to the laws setting up the H1B visa program, "The secretary of
labor shall review such an application only for completeness and obvious
inaccuracies. Unless the secretary finds that the application is incomplete
or obviously inaccurate, the secretary shall provide the
certificationwithin seven days of the date of the filing of the
application."
The system's supporters say concerns about fraud are overstated, and they
stress the importance of bringing over foreign high-tech workers to fill
gaps in the American work force.
The newspaper's own investigation found that labor condition application
filings for Maine-based positions has mushroomed in recent years. From
fiscal years 2003 to 2005, the number of Maine-based labor condition
applications filed with Labor jumped 230 percent, according to federal
records analyzed by the newspaper.
The number of computer-related application filings saw a particularly high
increase. In 2003, 53 applications were filed through Maine for 206
computer-related workers. In 2005, 722 applications were filed for 2,266
computer workers. The 2005 records are the latest released by the U.S.
Department of Labor.
Maine isn't Silicon Valley, or even Massachusetts, when it comes to a need
for computer programmers. While there's a solid high-tech sector here, it's
also modest in size. It's difficult to envision actual demand driving the
jump in visa certification applications, experts said.
The number of computer programmer and software engineer types of positions
declined 9.4 percent in Maine from 2003 to 2004, according to the latest
state records.
The flood of labor condition applications also wasn't being driven by
Maine's quicker paperwork processing speed, which has been cited as a
reason that green-card requests exploded here during the same period. Green
cards allow foreigners to live and work here indefinitely.
States don't process the H1B visa applications; that's done by the federal
government. Many observers think the jump in Maine-based applications could
be related to prevailing wages.
The system for filing a labor certification application for an H1B visa is
online. Companies must fill out a Form ETA 9035E, a labor condition
application for nonimmigrant workers. Each application is made for a
position, or a number of positions, not for an individual or individuals.
The companies make several "attestations," or statements, on the form,
including when it wants to employ the foreigners and how many. The company
also states the prevailing wage for the position in the area where it wants
to employ the foreign workers. (See box at right for more information.)
But the labor condition application "simply requires employers to make
certain attestations that program requirements have been met," the Office
of the Inspector General said in its 2003 audit. "Employers are not
required to provide any supporting documentation for DOL to review prior to
making a determination on the (labor condition application)."
The Government Accountability Office report for June said the U.S.
Department of Labor electronically reviewed more than 960,000 applications
and certified almost all of them from January 2002 through September 2005.
The auditors also found 3,229 applications that were certified, even though
the wage rate on the application was lower than the prevailing wage for
that occupation.
They discovered about 1,000 certified applications that contained
"erroneous employer identification numbers," which the GAO said raises
questions about the applications' validity.
On the application form, the companies must identify the city and the state
where the position is based, and the prevailing wage for the position in
that city. If the foreign workers move to a different company worksite in
another area, the business is supposed to refile the labor condition
application for the new location.
Experts suggested that certifying the applications in Maine instead of
areas where the foreign workers actually will be employed circumvents that
prevailing-wage attestation.
"One of the ways the companies sort of play the system is they say, 'We're
going to locate this worker in, let's say, Maine,' which may be a
lower-cost area, and then actually place them in, let's say, Boston or
someplace else that's a high-cost area," said Ron Hira, assistant professor
of public policy at the Rochester Institute of Technology in New York, an
officer with the Institute of Electrical and Electronics Engineers and a
leading expert on the H1B visa system.
Another reason for filing the applications through rural sites such as
Maine is that it can help keep companies out of the spotlight, said
Courtney, of WashTech.
"By going through places like Maine, it's much more difficult to track how
major employers are using the H1B visa program," said Courtney. "People are
looking around, poking around on this issue. Most people are looking at it
in labor market areas where there's a high concern of abuse.
"You would never look in rural, non-urban areas that have no significant
high-tech presence to try to find answers for problems with the program."
And finally, cases of outright fraud have surfaced as well, including at
least one with a Maine connection.
The U.S. Department of Labor's Office of the Inspector General said it has
uncovered illegal operations in California, Texas and other states in which
fraudulent labor condition applications were used to obtain visas for
foreigners.
On May 5, a federal grand jury in New Jersey indicted Narendra V.
Mandalapa, president of Cybersoftec Inc., on counts of immigration fraud,
money laundering and mail fraud related to his applications for green
cards. He has pleaded guilty to a single count of immigration fraud and is
to be sentenced Nov. 27.
Cybersoftec had offices in Maine and New Hampshire, and it also got more
than 100 H1B labor condition application certifications for H1B visas
during 2004 and 2005, claiming the two states as the work sites for the
requested positions.
Essentially all of these Maine-based applications - as with others across
the country - were certified. And that's a problem, according to Labor's
Office of Inspector General.
Its auditors clearly - and bluntly - detailed problems with the agency's
labor certification system for both green cards and H1B visas in its 2003
report.
"The H1B is a 'rubber stamp' program because the applicable regulation
requires (the department) to approve the labor condition application if the
form is complete and free of obvious errors," the auditors wrote,
emphasizing the word "requires" in the report.
"In our opinion, DOL adds nothing substantial to the H1B program. It would
be more efficient if the employers filed their applications directly to the
Bureau of Citizenship and Immigration Services for visa approval," the
auditors wrote. "The (Inspector General) believes that if (Labor) is to
have a meaningful role in the labor certification process, it should have
corresponding (statutory) authority, not currently available, to ensure the
integrity of the process, by verifying the accuracy of the information
provided on (applications)."
Auditors noted that the processing system for labor condition applications
was designed for speed rather than for actually screening out applicants
who don't meet program requirements.
"Investigations continue to identify fraud in the H1B program which may
result in security risk associated with aliens admitted to the U.S. by
fraudulent means," they wrote. "(The department) does not track the
movement of H1B visa holders while in the U.S. and has no way to prevent
the nonimmigrant from abandoning employment and remaining in the U.S."
The auditors reiterated many of the same concerns in its report last
November, "Top Management Challenges facing the Department of Labor
Identified by the Office of Inspector General."
And many of the issues had been raised previously, in a 1996 Office of the
Inspector General report titled "The Department of Labor's Foreign Labor
Certification Programs: The System is Broken and Needs To Be Fixed."
Elliot Lewis, assistant inspector general for audit at the Office of the
Inspector General, said this May that he has just assigned staff to a new
audit of the DOL's labor certification process, to see if the agency has
addressed problems raised in 2003.
"They literally just got started on this back a couple of weeks ago," said
Lewis.
America's high-tech industry is a driving force behind allowing skilled
workers into the United States. The industry argues that there aren't
enough skilled engineers in this country to meet labor demands. The
industry also argues that foreign students educated at U.S. colleges should
be allowed to stay here for work, rather than export the expertise to other
countries.
Claims of fraud in the foreign-worker system are overblown, as are
contentions that American workers are hurt by the influx of skilled
immigrants, said Jeff Lande, senior vice president at the Information
Technology Association of America.
"By most counts, we've got about 10 million technology workers in America,"
said Lande. "We're talking about a (H1B visa) cap of 65,000 a year, maybe
20,000 of whom are technology workers. You're barely talking about a drop
in the bucket spread out across the country. Any complaints about this
program having a serious impact on U.S. labor are comical."
The H1B program is capped at 65,000, though the immigration reform act
passed earlier this year by the Senate would increase that to 125,000. That
bill must be reconciled with a House version, and the issue is under debate
now.
However, according to the State Department, there were 124,100 H1B visas
issued in 2005. There are exemptions to the cap, including positions at
colleges or nonprofit research organizations, as well as the first 20,000
petitions for foreigners with an advanced degree earned in the United
States.
Lande also made the argument that students who earned degrees here should
be allowed to work here.
"We're training a lot of these people in our universities. When they're
done, they have to go back home instead of being able to hook up here,"
Lande said. "It's just ludicrous. It undermines our competitiveness and
ultimately costs far more jobs than would be saved.
"The world's kind of flat now. The alternative to having the talent here is
to just 'offshore' it, and that's not in the nation's interest."
"Offshoring" remains a very real concern, said Daniel Griswold, director of
the Center for Trade Policy Studies at the Cato Institute. He was referring
to the process of moving work to other countries.
"Clearly the market is flashing a neon sign that we need more skilled
workers. We're creating more jobs than we have Americans trained to do
them," Griswold said. "Our economy is stronger if foreign-born workers can
come here and contribute."
Lande noted that if companies are misusing the program, they should be
dealt with.
"My organization and my member companies are strongly supportive of
ensuring there is no fraud in the system," Lande said. "Not only should
fraud be taken care of from a public-policy perspective, but my companies
also realize from a self-protection standpoint that if there is fraud in
the system and it's not caught, that causes problems for all the players
that are doing it right."
Critics of the H1B process say industry arguments have had too much
influence on the current system.
"It was set up that way because the most powerful corporate interests
wanted it set up that way," said Courtney, of the labor union's WashTech
unit. "It's not that the Labor Department doesn't have concerns. (The law)
literally ties the hands of the Department of Labor."
The Government Accountability Office report for June illustrates the
enforcement challenges that are created by sheer bureaucracy. The auditors
found that the visa program could have more oversight if electronic data
from Labor could be understood and used by Homeland Security's U.S.
Citizenship Immigration Services' computers. Data exchange between the two
agencies is limited because they have different computer systems.
The report also found that Citizenship and Immigration Services doesn't
have a process to report possible violations it discovers to Labor.
Current law also blocks Labor from investigating problems with labor
certifications that are free of obvious errors, unless an aggrieved party
makes a complaint, the report said.
"Even if (U.S. Citizenship and Immigration) did report these cases, current
law precludes (Labor) from using the information to initiate an
investigation. According to officials from Labor, it does not consider
Homeland Security to be an aggrieved party; therefore, Labor would not
initiate an investigation based on information received from, or a
complaint filed by, Homeland Security," said Sigurd R. Nilson, director of
the Government Accountability Office's Education, Workforce and Income
Security division, in testimony to a House of Representatives subcommittee.
According to the law setting up the H1B visa program, "Complaints may be
filed by any aggrieved person or organization (including bargaining
representatives)."
Sen. Olympia J. Snowe, R-Maine, said the Government Accountability Office
report showed that the oversight agencies face "unnecessary and artificial
barriers to vital information sharing."
Hira, the public-policy professor, said he thought the legislation
establishing the H1B program was purposefully set up in a misleading way.
"If you read all the language, you'd think this is all working the way it's
supposed to be. It sounds like there's lots of good regulations in place
that protect (workers)," Hira said. "The problem is, it is written by the
people who are using the program. The less regulation they can get, the
better.
"They've written in the language to show enforcement. It works to their
advantage. You can tell the American public, 'We've got all these
protections in place.' At the same time, 'wink wink, nod nod' to the
companies."
Staff Writer Matt Wickenheiser can be contacted at 791-6316 or at:
mwickenheiser@pressherald.com
+++++++++++++++++++++++++++++++++++++++++++++++++++
http://pressherald.mainetoday.com/news/immigration/060926imm.html
Local company finds foreigners fill a labor need
By MATT WICKENHEISER, Staff Writer
Tuesday, September 26, 2006
SOUTH PORTLAND - Wright Express employs 650 people, and five of them are
foreign workers.
In theory, that's the way the skilled foreign labor system is supposed to
work. The H1B visa program allows U.S. companies to fill gaps in their work
forces by recruiting specialized expertise from other countries.
While a Portland Press Herald/Maine Sunday Telegram investigation has
uncovered some questions about the way the foreign labor system works, many
companies like Wright make legitimate use of the program.
Wright Express is one of Maine's premier information-technology companies.
It provides payment processing and information-management services to
commercial and government vehicle fleets. While it employs many local
people, there are some posts it can't fill out of the Maine work force.
Wright Express Chief Information Officer Tod Demeter said the company
looked internally, locally and then nationally to fill two high-level
computer positions: a customer relationship management software expert and
an enterprise resource monitoring guru.
"They're just such specialized skill sets that we struggled trying to fill
them in the Maine area," said Demeter.
Wright hired Ashish Vashisht in December 2004 for the ERM position, and
Mohan Ramapura in March 2005 for the CRM administrator slot.
Each had been trained in India in their specialities, and came to the U.S.
on H1B visas. They worked for computer consulting firms, handling projects
at client sites around the country.
Vashisht worked as a consultant in St. Louis at MasterCard for three years,
then at Target Corp. in Minneapolis and then with Bayer in Pittsburgh.
Ramapura lived a similar life, working for clients until a project was
done, and then moving on.
Just as he'd learn where the grocery stores were in a city and start to
become part of the community, Ramapura said, he'd have to leave.
"It's really very unsettling," he said.
Both Ramapura and Vashisht took jobs at Wright Express, happy for the
stability and the chance to stop jumping around the country.
"You feel more comfortable working in a company - you are part of a
company, it's a family," said Ramapura.
Wright Express doesn't lightly undertake the hiring of foreign workers,
said Human Resources Manager Diane Rogers.
"There's tons and tons of paperwork," she said.
And, she said, the managers know that working on immigration paperwork for
potential employees takes precedence over any projects, as federal
deadlines must be met.
But the paperwork is a small price for filling difficult positions, and the
H1B program is important to companies like Wright, said Rogers.
"If we don't allow them to come over then we wouldn't be able to compete in
a global market," she said.
Wright has since filed for green cards for Vashisht and Ramapura, which
would allow them to stay and work in the United States indefinitely. Their
applications are pending.
Having Vashisht and Ramapura on staff not only fills the positions, but
also lets other Wright employees learn specialized skills from them, said
Demeter.
Both employees said they've learned from their co-workers, as well, and are
happier as full-time employees.
"Even though I spent three years at MasterCard, they will never take me as
an employee," said Vashisht. "When you're here, you have ownership."
Staff Writer Matt Wickenheiser can be contacted at 791-6316 or at:
mwickenheiser@pressherald.com
+++++++++++++++++++++++++++++++++++++++++++++++++++
http://pressherald.mainetoday.com/news/state/060927visas.html
Delegation to examine visa abuses
By MATT WICKENHEISER, Staff Writer
Wednesday, September 27, 2006
Problems with the U.S. Department of Labor's role in allowing skilled
foreign workers into the country may become part of the overall immigration
reform debate later this fall, members of Maine's congressional delegation
said.
A Portland Press Herald/Maine Sunday Telegram investigation published this
week detailed concerns about the H1B visa program and the permanent green
card program. H1B visas allow skilled foreign workers - engineers,
programmers, accountants and the like - to work in the United States for
three years, with a three-year extension. Green cards let foreigners live
and work here indefinitely.
"I think what your series teaches us is that it isn't enough just to
tighten security at our borders, that as long as legitimate visa programs
like the H1B program can be so easily manipulated or subjected to outright
fraud, that border security - while important - is an incomplete answer,"
said Sen. Susan Collins, R-Maine, chairwoman of the Senate Committee on
Homeland Security and Governmental Affairs.
The newspaper cited government audits going back a decade that raised
concerns about the U.S. Department of Labor's role in the foreign labor
certification process for the H1B visa program. The investigation found
that the Department of Labor had very little oversight of the program, and
was seen as merely a "rubber stamp" by its own inspector general.
Collins said the series showed a need to work more closely with the
Government Accountability Office, the U.S. Department of Labor's inspector
general and the Department of Homeland Security "to see what we can do to
crack down on the abuses in this program.
"I'm going to assign two of my investigators to look further at the very
disturbing evidence that you uncovered about shell corporations
establishing a virtual presence (in Maine) in order to exploit the
program," said Collins.
The newspaper found that dozens of high-tech staffing companies opened tiny
offices or leased cubicles in Maine and other rural states in 2004 and
early 2005 and filed immigration papers for thousands of foreigners who
were supposed to work here.
In many cases, the companies' connection to Maine was tenuous. In several
instances, landlords never even heard of the companies that called their
buildings home on federal applications.
Companies may have done so to take advantage of Maine's lower prevailing
wages, as compared to urban centers of other states, critics suggested.
"If you're running applications through Maine and they're working in New
Jersey, that principle has been circumvented, and that's wrong," said U.S.
Rep. Tom Allen, D-Maine. "You've highlighted some cases called attention to
some bureaucratic breakdowns that need to be fixed."
Most of the post-election immigration reform activity will center on border
security, said Allen. Border security issues include proposals such
as]building a fence along parts of the U.S.-Mexico border and increasing
penalties for employers who hire illegal immigrants. However, an expansion
of the H1B visa system will also be discussed on Capitol Hill, said Allen.
The Senate bill increases the H1B visa cap from 65,000 to 115,000,
beginning in the fiscal year that begins Sunday. It also calls for a 20
percent increase for each subsequent year if the previous year's cap is
reached.
U.S. Rep. Mike Michaud, D-Maine, said the newspaper's investigation
"illustrates the need for Congress to promote a comprehensive approach to
reforming our nation's immigration and security policies.
"We need to change the way we do things if we are going to address the
fraud and abuse that currently exist," said Michaud. "I am hopeful that, in
addition to immigration and border security reform, problems in our foreign
labor programs can be addressed in any bill that comes out of conference.
"At the very least, I hope that Congress will begin to finally exercise its
oversight responsibilities and address the issues that currently plague our
system."
Sen. Olympia Snowe, R-Maine, agreed with the need for comprehensive reform,
which she said was highlighted by the "exploitation of technicalities"
uncovered by the series.
"We must increase the resources committed to internal investigation and
enforcement of our current immigration laws and put an end to fraud and
abuses of the system," said Snowe.
Russell Harrison, legislative representative for IEEE-USA, a leading
professional association for engineers, said the newspaper's published
findings uncovered a national problem.
"What you've uncovered isn't really relevant to just Maine, it's relevant
to all the small states - Iowa, Wyoming, Idaho and a bunch of other places
where legislators aren't paying attention to these issues because it's not
relevant to them," said Harrison. "You guys are coming at it from an
unexpected place: a small state that doesn't have a lot of high-tech (but)
has a lot of problems."
Jeff Lande, senior vice president of the Information Technology Association
of America, said his organization was disappointed that Congress hadn't
already acted to increase the H1B visa cap.
He said his group hoped Congress would raise the cap later this year, and
doesn't believe that the U.S. Department of Labor needs to increase
oversight or fraud detection efforts.
"I think the agency has the authority that it needs right now. If there
were the types of abuses that you allude to, they'd show up in complaints
filed by outsiders asking the department to investigate," said Lande, "and
those aren't happening."
Staff Writer Matt Wickenheiser can be contacted at 791-6316 or at:
mwickenheiser@ pressherald.com.
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