Home

Sept 14 2009:

In some ways, the heavy attention paid to H1B visas misses the most critical element in the process of replacing expensive Americans with cheap foreign workers, that is the Labor Condition Application.

What are LCAs ?

A very good summary of FAQs about Labor Condition Applications at visalaw.com.

In the LCA, employers must make a series of "attestations". The key points are that the employer will pay the the prevailing wage paid to American employees in the same position and that employing the H-1B worker will not impact the working conditions of Americans. The LCA must also be made available for public viewing.

Amazingly [ wink wink ], the LCA contains nothing at all about the skills required for the H1B worker that it is requesting. The entire justification for the H1B program was the lack of modern IT job skills among Americans, its raison d'etre. And yet there's no information in the LCA concerning the very reason for its own existence, like a customer product order with no products ordered. That's very odd, isn't it.

What is H1B Dependence ?

There are additional requirements for "H1B dependent" employers, defined as employers with a total H1B staff of between 15% and 50% of employees, depending on the size of the company. The "H1B dependent" employer must also attest that 1) "it has not and will not displace a US worker during the period from 90 days before the H-1B petition is filed until 90 days after it has been filed" and 2) it has taken “good faith steps” to recruit US workers for the job, and that they have offered it to any US worker who applied that was at least as qualified as the H-1B non-immigrant."

Of course these requirements are routinely ignored, particularly the requirement that LDAs be made publicly available ( as far I can tell, only IBM is complying to the requirement, see link below ).

Many accounts of displaced Americans can be found in comments to articles and in news groups on the web. For that matter, I've seen it happen - the H1Bs showed up on the first Monday after the Friday massacre. Many thousands of other IT professionals in this country have witnessed the same thing in the last 10 years.

The other interesting point is “good faith steps to recruit US workers for the job". The "good faith" efforts seem to consist of placing ads ( directly or via captive H1B agencies ) in JobMonster, Dice, etc. from which they received hundreds if not thousands of resumes from applicants - none of whom happen to meet the requirements for the job. Aw, shucks, guess I'll have to hire a cheap H1B worker after all [ wink, wink ].

Do H1B Workers Really Provide More Bang for the Buck ?

I must admit that H1Bs do provide a lot of value for the money. They have little else to do so far from home and consequently they are often willingly work 12 hours days every day for 8 hours of pay ( in other words, well below minimum wage ). Few Americans are willing to do that.

Even better, they can't change jobs. Their presence in the U.S. is totally at discretion of the employer. A layoff notice means a ticket home for most H1B workers. The American employer has almost total control over the employee, both in terms salary and conditions for employment.

Understand that H1B shops are "closed shops". As the system is structured, Americans are rarely allowed to compete for the jobs offered to H1B visa holders and, in practice, rarely have any way to discover their existence. ( See "Recommendations" below )

Despite the clear indications of abuse and "quasi-serfdom" in the H1B program, it must be noted that H1B visa holders in the United States are often better protected by American labor law than they would be in their country of origin.

Employer control has been somewhat weakened in recent years by the growth of a permanent multi-million-dollar industry devoted to finding jobs for supposedly 'temporary' H1B employees within the US, not just posting from home to the US as one would expect.

How H1B Dependent is America ?

How "H1B dependent" are we ? No one knows for certain - information about the program is carefully obscurificated by H1B employers and the Department of Labor. The problem must be at an advanced stage for secondary structures such as permanent "domestic H1B" industry to evolve within the United States.

Labor Condition Application Facts

The LCA ( ETA-9035 ) is managed by the Labor Department's Employment and Training Administration (ETA), devoted to "job training and worker dislocation programs, federal grants to states for public employment service programs, and unemployment insurance benefits". Oh, our federal government ... here we go again, what a mess.

The ETA appears to be using their functions to work a sort of reciprocal shell game by creating more IT unemployment ( and thereby ensuring their own employment ) by approving LCA and H1B applications en masse. That might be seen as a conflict of interest in some quarters, but apparently not by the people in our government.

On the other hand, they are nice enough to provide a Worker Adjustment and Retraining Notification (WARN ) form for Americans workers who are about to get laid-off ... they think of everything.

Check out the page source code for the U.S. Department of Labor Foreign Labor Certification FAQS ( quad processor system recommended ). It weighs in 652 KB, talk about government bloat !

Interesting Practices and the Role of Government

If you want to understand how the American government failed its citizens who work in the IT industry, you can find no better guide than the 169-page report entitled "Exemplary Practices in High-Skill U.S. Department of Labor H-1B Training Programs".

Written in 2002, the document outlines a pilot program using fees from H1B applications to train American IT professionals in modern information technology, Americans being so woefully lacking in the skills necessary for modern IT ( which we invented ! ).

While there were no firm data and no firm conclusions from the pilot program ( of course ), the 169 pages do manage to cover ...

"... interesting practices in the categories of applications, screening, and paperwork requirements; recruitment; employer involvement; job commitment by employers and participants; matching contributions for training; utilization of workforce investment boards, advisory boards, and industry associations; training technology, training management; institutional development, data systems, and service area covered".

The sheer verbosity and vapidness of the massive ( and no doubt expensive ) report reads like a plan for dismantling the American corporate IT industry, which indeed it was.

Recommendations

Expand the "Good Faith" Requirement for H1B Dependent Employers to All H1B Employers

A critical factor in reducing the job destruction capabilities of our government is to make the requirements for "H1B dependent" companies apply to all H1B employers. As it stands, if an employer is not H1B dependent, there is no requirement to make even a "good faith" effort to employ an American before hiring the H1B.

Require LCAs to Describe the "Specialized" Skills for the H1B Job

Another change to the LCA process to help Americans compete with foreign workers in the United States would be to require H1B employers to describe specific job skills in the LCA form. After all, the shortage of these skills was supposed to be the point of the LCA in the first place - image ordering a product without mentioning the product you are buying !.

Create a Public National Job Bank to Make the LCA Information Available to American Workers

It is a current requirement of H1B employers that LCAs be made available to the public, but compliance by H1B employers is the exception and often requires months of hoop jumping and complaints to the DOL arbitration process to access to them. Fix it !

These reforms would allow qualified Americans to view a LCA job description for potential H1B hires on the National Job Bank and recommend themselves to the company as a qualified candidate for the job. It would go a long way toward ending the practice by H1B employers of earmarking jobs for cheap foreign labor at the expense of working Americans.

I will expand this article with more "interesting practices" of the U.S. Department of Labor as I encounter them.