LCA, DOL and H-1B

A precondition to filing an H-1B petition is that the Employer files a Labor Condition Application (LCA) to the Department of Labor (DOL) attesting that
they will pay the alien the prevailing wage during the period of the employment and
that they are not adversely affecting other workers by hiring,
or not replacing striking or laid off US workers with the H-1B non immigrant

The Employer is supposed to:

Display a copy of the LCA for 10 days in the business premises
Keep the LCA in a file for public access for 3 years
Provide a copy of the LCA to the H-1B employee

This condition has to be met during the entire term of the employees work until the termination of employment. Benching an employee and later rehiring that employee is not a termination and the employer has to pay the employee the full amount promised in the LCA.

If however the employee takes a leave due to a voluntary request (for example going back to the home country for some time) or for the employee's convenience, then the employer is not required to pay the employee.

The Employer must notify the Citizenship and Immigration Services upon termination of the H-1B employee.

The DOL can and does enforce that employers abide by the terms and conditions of the LCA. Employees stiffed by their employers can complain to the DOL, who then upon determining the truth, orders the Employers to pay the back wages due to the Employee and also assess fines for non compliance.

However the DOL's authority to enforce terms of employment only extends to the LCA. Any subsequently held contracts between employers and employees cannot be subjected to DOL enforcement. In a recent case, In the Matter of Mahmoud Ashraf Galal (2008-LCA-00010) the employee asserted that the employer's agreement to increase the employees wage to 90K per year (when the LCA promised $65K) and the employer's promise to pay employee work related travel expenses were contractual and the DOL did not have the authority to enforce them. The Employees should file under State Law for contractual remedies. The determination will be done under individual state law.

The Reality of Immigration

According to a recent posting by the American Immigration Lawyer's Association, illegal immigrants comprise of about 5 % of the US workforce and contribute about $520 billion to the Social Security System, an amount that they wont ever get back. Even at the State level, these "undocumented immigrants still pay more in taxes than they use in public services." This money will go towards payment of social security benefits of US workers.

Most undocumented immigrants come to the United States to work. They come here because they can find work. If the work dries up, they will NOT remain in this country and be far away from their families. Thus sheer free market forces, and restrictive immigration laws control the whole phenomena of undocumented workers.

US was founded on the principle of Free Market System. Ben Bernanke espouses it. Yet the raids on businesses by Immigration and Custom Enforcement (ICE) is actually hurting the already battered US economy further by shutting down businesses. Why is ICE going after people simply working for a better living and paying taxes in the US, instead of going after aliens who are criminals? Because unlike what Lou Dobbs preaches, there are very few illegal aliens who are actually criminals. The agency would not need to have that many officers if the only people they deport were criminals.

So, ICE, whose parent is the Department of Homeland Security, makes work a crime and a security issue, arrest and deport men and women who are working, and thereby hurt the US economy. We have a Government that has already hurt us by going into a costly war against Iraq. When will they stop?

Fingerprinting for Reentry Permits

The USCIS recently introduced the procedure of a fingerprinting check for green card holders who wished to stay out of the US for more than 6 months. There is a presumption that individuals who wishes to stay out of the US for more than 6 months are abandoning their Permanent Residence status. So BEFORE they leave the US, they need to file the reentry permit (Form I-131) expressing their intent to come back to the US and they can stay outside the country for 2 years. Now they are going to be fingerprinted. Not only do they have to pay $80/- more to the US Government, but file the reentry permit sufficiently in advance of their departure to be able to have the fingerprinting done before they leave. Some (very few) Consular posts might do a fingerprinting, but the majority of posts wont.

Usually individuals leave because their job or family ties compel them. With multinational industries spread out among several countries, there is very often the need to quickly dispatch personnel from the US Companies to their subsidiaries abroad. Or sometimes, the Permanent Resident's relative back home may be sick wand have to one to take care of. Or they might want a degree from Oxford, and get the admission notice less than a month before class starts. They have to wait.

One has to wonder why this fingerprinting is necessary. OK, we all know the Government is justfully very concerned about National Security. (And that the GOP feeds off of this National Fear). But if a Permanent Resident commits a crime, there is already a procedure for Deportation. The fingerprints of the permanent resident has already been taken and should be stored in some Government computers somewhere. And citizens can go anywhere without any restrictions.

Also the Government can only check their database in the US for past crimes. So, conceivably a Permanent Resident can have no crimes, and still can go to a 1 year terrorist camp in Pakistan, and come back and perpetrate a crime. But so can a US Citizen.

Conversely a person wishing to flee the United States for a heinous crime will not apply for the reentry permit anyways.

So why make these permanent residents pay $80/- to get wait for months to get fingerprinted. What purpose does it serve?

VWP Nations Require to sign in before Departure

US has reciprocity with many nations, (Like Europe, Japan and Singapore), whose citizens can travel to the US without a visa. These people visit the US under the Visa Waiver Program. United States Citizens also can travel to these countries without a visa. The idea is that citizens of these countries will not remain illegally in the US, and it will facilitate travel, especially business travel.

From August 8, due to security reasons, US will be requiring all travelers under VWP to register online before leaving for the US. Once anyone registers and gets a travel authorization, it will be valid for 2 years. The questions will be the same required for an I-94 in the plane.

Europe is already contemplating similar actions for US travelers.

Hopefully this program will work and not result in fewer business and pleasure travelers to the US, resulting in fewer amount of money generated in the US.

E-Verify

E Verify is a computer based program designed to ensure that employers are hiring only legal workers. The Employer signs on to a Social Security Computer based program and when new employees are going to be hired, the employer inputs their name and SS # to see whether there is a "match", ie they are indeed legal to work in the US.

This Computer based wondercomputer takes 2 days to do the match. (We have only 300 million people in the US, how large is this database?) But then again, like the Govt Employees, the Govt computers run at probably 1 megabit per second.

The mismatch rate (according to a Journal written to "debunk the myths of E Verify" has a .5% mismatch rate) . Of course this rate the lowest we will ever get. For a population of 300 million, that is 1.5 million people. Many of them will not have white skin color. Does the Government have any idea how hard it is to find a job for people of certain education and skin color? Imagine then, if after finding a job, a legal person is kicked out!

And what just ices this cake is that no one can sue the Government for such mistakes.