Costly Immigrant Labor Certifications
Costly Immigrant Labor Certifications
Date: Friday, March 07, 2003 10:27 AM
H-1B and JOB DESTRUCTION NEWSLETTER
This article is very informative about how the labor certification
process can be abused. Aliens are not supposed to pay for their own
visa and yet in one instance $10,000 was paid to the employer by the
One statement in the article needs clarification. It states that
employers are required to advertise the jobs in order to prove no U.S.
worker is available. That is true for Green Cards but not H-1Bs. Some
companies still run fake job ads when they want to hire H-1Bs but they
aren't required to.
Hayes wrote that recent college graduates might be disturbed when they
find out that most U.S. employers are not first required to hire
American applicants before they seek foreign workers to fill jobs.
Generally speaking the mass media and our politicians perpetuate this
myth, so it's refreshing to read an article that is more factual.
To view letters of politicians who use this myth to placate voters, go
As far as college students are concerned, most of them have never heard
of H-1B. Universities rarely discuss how foreign students are used as
interns to lock them out of the job market. These foreign interns will
keep their jobs when they graduate because their employers convert
their J-1 or F-1 visas into H-1Bs. American grads won't even be
considered for these jobs. Most families and students would be very
upset if they knew how their future careers are being stolen, but most
of them are blissfully unaware of what is happening.
Costly Immigrant Labor Certifications
Thursday, March 06, 2003
By Matt Hayes
Every new lawyer scrambles for work. So it seemed a fantastic
development that a lawyer I had known decided he would retire, and
asked me to substitute for him on his caseload of labor certifications.
Labor certifications allow the Department of Labor to temporarily
certify a foreign worker to perform a specific job in the United States
because an American cannot be found to do it. It requires the employer
to advertise for U.S. workers at prevailing wages, noting who responded
and why they were not hired, and submitting the results to DOL. If
convinced that a U.S. worker cannot fill the job, the DOL will issue a
labor certification for the alien worker, which in some circumstances
can lead to a green card.
As soon as the files were transferred to my office, the client calls
started coming in, and they wouldn't stop. The files had been sitting
for months with little work, and quick review indicated that many
should not have been filed in the first place. Many of the applicants
sought certification for work that any employer could quickly find an
American to do, and most applications had been denied without the
client ever having been informed.
Appointments were made with each of them to explain either why their
application had been denied or why they should consider its withdrawal.
Papalay was the first to come in. When we broke the news that his
application for a labor certification would almost certainly be denied
and could not be rehabilitated, he asked, "Alright, but can you sue my
employer to get back the $10,000 I paid him to go along with this?"
A labor certification is a path to permanent residence, and because it
usually involves cooperation between an applicant and a potential
employer (the "sponsor"), money is bound to change hands. Though
inexperienced lawyers usually cannot conceive of the machinations often
involved in applications for a labor certification, experienced lawyers
can. And because applying for labor certifications is a predictable,
high margin business, many lawyers do not turn down the cases that they
Ethnic restaurants are a prime area for potential clients because it's
plausible, though increasingly unlikely, that an Italian restaurant
must turn to Italy to find a chef.
At the end of last year, well-known immigration lawyer Samuel Kooritzky
was convicted on 57 counts of fraud in connection with two years of
applications for labor certifications for which he collected $10
million in fees. He filed 230 separate applications for only two
Chili's restaurants, 184 for a diner, and 173 for a single Shoney's
restaurant. Immigrants were reportedly charged between $8,000 and
$20,000 per application. Managers of the restaurants insisted that they
were unaware that they had been used as sponsors in a labor
What role do restaurants normally play? It's common for a restaurant
owner to first accept a down payment from a would-be immigrant, and
file an application that states that there is a need for a new chef,
restaurant manager, or prep cook. The need is wholly fabricated, and
there is never an intention to actually employ the immigrant if a labor
certification is eventually granted. Progress payments are made to the
restaurant to insure its cooperation at every step of the application
process. A "balloon" payment is sometimes made to the restaurant owner
when the labor certification is granted, and because the labor
certification exists only as long as the employer needs it, an
immigrant's failure to make the balloon payment often results in a
letter from the restaurant owner to the INS or Department of Labor,
withdrawing or canceling the application. The practice has now extended
to individuals, not businesses, colluding with immigrants and filing a
fraudulent application for labor certification for a domestic servant
or home cook.
The H-1B visa, which exists to insure that American companies have
enough skilled workers, is similarly abused, and is the chief culprit
in the current glut of computer programmers. As disturbing as it may be
to recent college graduates, most U.S. employers are not first required
to hire American applicants before they seek foreign workers to fill
At the end of 2002 America had 900,000 foreign workers on H-1B visas,
the vast majority of which are computer programmers. If there were a
critical need for H-1B computer programmers, then starting salaries for
new graduates should reflect that fact.
Data from the National Association of Colleges and Employers for 2000
indicate that average starting salary offers for computer science
bachelor's graduates rose from $44,649 to $49,055 (9.9 percent). That
compared with an increase for math graduates of 12.1 percent
($37,253-41,761) and humanities graduates by 18.9 percent
($37,253-41,761). With the bottom falling out of high-tech, salaries
for computer science graduates have dropped over the past two years and
were at $44,429 in January 2003. If there is a shortage of computer
programmers, then the market would show that. But it shows the opposite
-- there are too many of them.
The cap for H-1B visas is set to revert from the current annual cap of
195,000 to 65,000, but foreign governments and American employers are
fighting it. Like its entitlement system, America's job market and the
immigration rights that have grown up around it are regarded as the
world's property, rather than something that exists for the benefit of
Matt Hayes began practicing immigration law shortly after graduating
from Pace University School of Law in 1994, representing new immigrants
in civil and criminal matters. He teaches at Berkeley College, and is
author of The New Immigration Law and Practice, a textbook to be
published by West Legal Publications in October, 2003.
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