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H-1B Attestation and PERM Labor Certification

H-1B Attestation and PERM Labor Certification. Philip Martin: plmartin@ucdavis.edu http://migration.ucdavis.edu. 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.

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H-1B Attestation and PERM Labor Certification

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  1. H-1B Attestation and PERM Labor Certification Philip Martin: plmartin@ucdavis.edu http://migration.ucdavis.edu

  2. 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

  3. 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

  4. 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

  5. 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

  6. 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

  7. 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

  8. 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

  9. 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?

  10. 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

  11. 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

  12. 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?

  13. 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

  14. 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

  15. 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

  16. 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

  17. 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

  18. 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

  19. 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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