The Lynchpin - Labor Condition Applications ( LCA )

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 ].

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.

Remedies to H1B Abuse

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.

Support the Durbin-Grassley Bill

The current form of the Durbin-Grassley Bill contains all three of the recommendations outlined above, in addition to a dozen others. If these three essential features can be retained in the final version of the bill, 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.

Contact Sen. Dick Durbin or Sen. Chuck Grassley, sponsors of the Durbin-Grassley Bill and support them in their fight to get control over the H1B program.