philip martin: plmartin@ucdavis.edu h-1b attestation and perm labor certification
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Philip Martin: plmartin@ucdavis.edu
http://migration.ucdavis.edu
H-1B Attestation and PERM Labor
Certification
Three Topics
• 1990 H-1B Trade off: easy access and annual cap
• Today: raising the cap vs adding US worker protections
• PERM: trust the employer to check US labor market
H-1B Program
• Context: – IRCA dealt with unauthorized in 1986, now legal– Unemployment > 7% in mid-1980s, slow to fall– Workforce 2000: Labor market mis-matches--
sufficient US workers, but not enough with the “right” skills
• Compromise: employers have easy access to H-1Bs in exchange for annual cap of 65,000
H-1B Concepts
• No test of US labor market for a particular job
• Law written to limit DOL review of LCA--check “only for completeness and obvious inaccuracies”
• Computer checks LCAs, no text fields and no human review
Four Attestations
• Pay higher of prevailing or actual wage• H-1B employment will not adversely
affect US workers• No strike or lockout has made the job
vacant• Employer has notified employees of
intent to hire H-1Bs
H-1B Dependent/Willful
• H-1B dependent employers (more than 15% H-1B employees) and willful violators of regs add 3 attestations:– No displacement of US workers 90 days
before and after H-1B LCA filed– Took good-faith steps to recruit US workers– Will not transfer H-1Bs to US employers
who displace US workers
From DOL-DHS
• Employer includes DOL “certification” of LCA with I-129 petition to USCIS, plus $1,500 and $500 fees
• DHS checks whether named foreigner is eligible for H-1B visa and approves petition
• DHS: Issues H-1B visa to foreigners inside the US, or provides approved petition so that foreigners outside the US can get visas from DOS consulates
DOL Checks of LCAs
• Prevailing wage: Employer may use the SWA determination, CB agreement, or private survey
• DOL classifies H-1B jobs into 4 levels:– Level 1, job requires a BA, wages are 15th to 20th percentile in that occupation
– 15-1021.00: Computer Programmers– US Median wages (2006) $31.50/hour, $65,510/yr
– US Employment (2004) 455,000
H-1B Issues: Employers
• Employers: not enough H-1B visas– US unis do not produce enough scientists and
engineers– Employers are best judge of who is qualified to fill
a particular job– Why put hurdles between employers and foreign
workers “needed” to keep US competitive?
H-1B Issues: Critics
• Easy attestation process invites fraud and abuse--no charge to file LCA, penalty for mistake is notice to fix
• H-1B workers are (1) not the best and brightest or (2) they have qualifications that should entitle them to higher US wages
• Job shops/body brokers: hard-to-police labor market intermediaries
H-1B Proposals
• Raise the cap vs increase protections for US workers
• Compromise: tie increase in H-1B cap to more protections.
• ALL employers would have to make no US-worker displacement attestation (how to enforce)
• No job ads for “H-1B workers only,” but no labor market test for each job vacancy
• DOL WHD gains new enforcement powers
Larger Context
• Is there a shortage of S&E workers? H-1B--no test for availability of US workers on a job-by-job basis
• Should US employers ignore borders in making hiring decisions?
• Is human capital mercantilism (maximize stock of gold) appropriate economic strategy for 21st century?
Immigration
• US: family-based immigration system• 2006: 1.3 million immigrants
– 800,000 family-sponsored – 160,000 employment-based– 380,000 refugees, diversity, others– Employment-based: 77% adjust status – 3rd preference professionals with BA:
3,500 principals, 95 % adjustments
PERM
• Certification vs attestation: who controls the border gate?
• Certification: DOL checks (1) that US workers are not available to fill a particular advertised job and (2) that the employment of the desired foreigner will have no adverse effects
• PERM: from supervised recruitment to trust-the-employer and audit
PERM
• Employer files ETA Form 9089 with details of job and foreigner desired to fill it; 60-90 day review
• In almost all cases, job is already filled by the foreigner for whom the employer is requesting an immigrant visa
• Purpose of labor certification: determine whether US workers are available and whether foreigner has adverse effects
Employer Recruitment
• Employers place ads and recruit US workers, record outcome of efforts
• Submit recruitment report: advertised in X, got Y applicants, not hired for Z reasons
• Form 9089 is reviewed by analyst, about 85 percent approval
Denials and Audits
• If denied, most employers fix and refile (no charge); cost is lost time in getting priority date for visa
• Audit: employer submits documentation of recruitment efforts, resumes of applicants etc
Conclusions 1
• H-1B: Easy attestation procedure to fill (unfilled) jobs; cursory check of employer LCAs; goal--fill vacant jobs quickly
• PERM: protect US workers by ensuring, for each job, that US workers are not available and no adverse effects
• But: job is already filled by the person for whom the immigrant visa is sought
Conclusions 2
• Evaluation of H-1B and PERM depends answers to other questions
• If it were harder to hire H-1Bs, would employers outsource jobs or retrain older US workers?
• Should foreign workers already employed in a job be replaced by US workers who learn about it during required recruitment?
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