October 1998  - Abuse of Foreign Workers American Style

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Lifting the H-1B cap for two years
October 1998

Even though Watt Amendment failed by a vote of 177 to 242, the US House of
Representatives passed a bill to raise the H-1B cap, H.R. 3736, by a vote of 288
to 133, on Spetember 24, 1998.  No veto is expected because the White House
worked out a compromise with Senator Spencer Abraham (R-MI), Chairman of the
Senate Immigration Subcommittee.  The compromise makes quite minor changes to
the original H.R. 3736.

The original bill proposed H-1B incerased cap from 65,000 to 85,000 in FY 98,
95,000 in FY 99, 105,000 in FY 2000 115,000 in FY 2001 and 2002, then likely
returns to 65,000. The "compromise" is an increase to 115,000 for FY 1999 and
2000 and then drop the number to 107,500 in Fiscal Year 2001, and later back to
65,000 unless Congress chooses to extend the lifting of the cap.

New notice to H-1B dependent employers on LCA informing them that if they place
a nonimmigrant at another employer's work site and the other employer displaces
a U.S. worker during the period described in the attestation, they are still
liable and may be subject to penalties.

        Exempts i.e. those who may stay slave traders

No attestations on H-1B dependent employers are required with respect to an H-1B
nonimmigrant who holds a master's or higher degree or receives annual wages
(including other compensation) of $60,000 or more. It means, an employer could
petition for an employment of a foreigner holding master's degree or higher and
that the firm would likely pay $60,000 or more, but in fact there is a loophole
to enforce this requirement.

Moreoevr, employers with 50 or less employers are simply exempted. The
compromise bill would change it a bit.  The exemption for small companies is a
little more complicated than reported earlier. Companies with fewer than 25
employees that have fewer than 7 H-1Bs are exempt.  Companies with 26 to 50
employees that have no more than 12 H-1B employees are also exempt.

Recruitment attestation is not required if the H-1B nonimmigrant would otherwise
qualify as an EB-1 nonimmigrant (extraordinary ability, outstanding professor or
researcher, or multinational manager or executive).

"Displace" for purposes of the layoff attestation is defined as the laying off
of a U.S. worker from a job that is essentially the equivalent of the job for
which the H-1B nonimmigrant is sought. A job is not "essentially equivalent"
unless it has essentially has essentially the same responsibilities, was held by
a U.S. worker with substantially equivalent qualifications and experience, and
is located in the same area of intended employment.

"Lay off" is defined as a worker's loss of employment other than through
discharge for inadequate performance, violation of workplace rules, cause,
voluntary departure or retirement, or the expiration of a grant or contract
(other than a temporary employment contract entered into in order to evade the
layoff attestation). It does not include any situation in which the worker is
offered similar employment with the same employer (or in the case of third-party
placement, with the other employer), at equivalent or higher compensation and
benefits, regardless of whether such offer is accepted. U.S. worker means a
citizen or national of the United States, a lawful permanent resident, a lawful
refugee, or a lawful asylee.

        The Joke of Enforcement and Penalties

A $1,000 fine and not less than 3 years debarment for failure to meet the no
strike or lockout or layoff attestations (if required), a substantial failure to
meet the working conditions, posting or recruitment attestations, or
misrepresentation of a material fact in an application.

A bit higher $5,000 fine and not less than 3 year debarment for any said
"willful" failure to meet any attestation condition, or willful
misrepresentation of a material fact, or violation of the Whistle Blower clause.

A highly theoretical $35,000 fine and no less than 3 year debarment would be
imposed for said "willful" failure or misrepresentation of a material fact in
the course of which an employer displaced a U.S. worker within the 90 days
before and 90 days after the filing of a visa petition based on the application.

     Whistle Blower Protection -- HA! HA! HA!

An employer may not intimidate, threaten, restrain, coerce, blacklist, discharge
or otherwise discriminate against and employee (including a former employee or
applicant for employment) because such individual has disclosed information to
the employer or anyone else regarding a potential violation, or for cooperating
in an investigation or proceeding. The Attorney General and Secretary of Labor
will devise a process by which H-1B nonimmigrants who file complaints may be
allowed to remain and work in the U.S. for another employer for the remainder of
their authorized admission period.

     Disputes Involving the Qualification of U.S. Workers

The INS will establish a process for the receipt and review of complaints
regarding an employer's failure to offer a job opportunity to a qualified U.S.
worker (if required to so attest) or misrepresentation of material facts with
regard to such condition.

The INS will determine from the complaint whether there is reasonable cause to
believe that a violation occurred.  If they suspect there was aviolation, the
Attorney General will initiate a binding arbitration proceeding with an
arbitrator from the roster of the Federal Mediation and Conciliation Service,
with proceedings under the rules of that Service. The INS will pay the fees for
the proceedings.  Once it was the responsibility of the Department of Labor but
they have ever failed to fulfill this duty.

Moreover, the INS Commissioner would have the power to review, reverse or modify
the findings of an arbitrator.  A Federal Appeals Court might have only reviewed
the review of the INS Commissioner and not any arbitrator's findings.  An
employer who is found to have committed a willful violation may be subject to
random DOL investigations for a period of up to 5 years from the date of such
finding.   The undersigned believes that nothing would change, like all the
previous laws had never been enforced.

     New! New! New!  LCA is to be received by INS . . . 
     oops, but it remains with the slugish Secretary of Labor!

Initially it was propose that the LCA will be filed with the Attorney General at
the same time as the H-1B petition is filed. The Attorney General will be
responsible for reviewing the application for completeness, and forwarding the
application to the Labor Department. This section will take effect not later
than 30 days after the date that final regulations are published, which must be
no later than March 1, 1999.  Regardless, the Compromise bill would scrap this
reasonable provision and the Department of Labor will still retain
responsibility as in the current law.  Nothing is new under our sun. . .

I may sarcastically laugh, because I have temporarily "lost" my case,
but you, Americans, should cry and protest. You are going to lose in big!

ps. To read the complete text of the compromise bill, see http://www.shusterman.com/hr3736f.html.
To read a section-by-section summary of the bill, see http://www.shusterman.com/hr3736s.html.
For a blow-by-blow account of the process of the H-1B legislation since May 14, 1998, and for future updates, bookmark the following page: http://www.shusterman.com/h1bflash.html

Other Reports
  • Jan 96  Hypocrisy
  • Sep 97  Abolish the INS
  • Jan 98  Total breakdown imminent
  • Feb 98  The INS is still a giant devil
  • Mar 98  The emerging Crisis
  • Apr 98  The INS Scam
  • May 98  The H-1B Crisis
  • June 98 Crisis is FAKE
  • July 98  Set Back Campaign
  • Aug 98  Was there a deal?
  • Sep 98  No Deal!
  • Oct 98  This Page
  • Next report
    Don't  skip  these  pages
  • American Policy Regarding Immigration
  • How do Americans abuse foreigners?
  • Why do Americans abuse foreigners?
  • Apartheid American style

  • References  for further reading
  • Public Opinions

  • My experience in the United States
  • Seeking representation in NJ at U.S. D.C.
  • Read my 1995 article published in Civil-Rights
  • See related articles in PUBPOL  

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    Copyleft1997-2000 Doron A. Tal - anyhow my rights were lost...         ... דורון א. טל - זכויותי ממילא אבודות