Proposed Rule Changes for H-2B

Date: Tuesday, March 08, 2005 12:28 PM

JOB DESTRUCTION NEWSLETTER

by Rob Sanchez
March 08, 2005 No. 1210

The Labor Certification rules for H-2B visas may be changed soon. This
is a very bad development for Americans who compete for the so-called
nonskilled jobs that are taken by H-2B visa holders, and even worse it
might be used as a precedent to further erode the scant protections we
have in the H-1B program.

It's very clear that the Bush administration wants to move
responsibility for handling guest-worker visas out of the hands of the
Department of Labor (DOL) and into the far less transparent U.S.
Citizenship and Immigration Services in the Department of Homeland
Security (USCIS). While this may seem like merely a procedural change
to most people it's far more than that. Eliminating the Labor
Certification process makes it easier for employers to fill jobs with
cheap H-2B labor and therefore makes it far less likely that employers
will be punished for discriminating against American citizens that are
qualified for these jobs. The proposal is a back-door assault against
American workers because it weakens the scant protections that are in
the H-2B regulations.

The rest of this newsletter describes what is wrong with this proposal,
and what you can do to stop it.

The proposal can be seen at the following link:
http://a257.g.akamaitech.net/7/257/2422/01jan20051800/edocket.access.gpo.gov/2005/pdf/05-1240.pdf

Use this shorter link:
http://makeashorterlink.com/?O2E5521AA

It's a several page document, so I summarized some of the most alarming
statements in it. President Bush's handwriting all over the second
comment. Notice the phrase "timely fashion" - that's because employers
think it takes too long and requires too much work on their part to get
visas.

+++++++++++++++++++++++++++++++++++++++++++++++++++

* This proposed rule will facilitate use of the H-2B program by United
States employers who are unable to find United States workers to
perform the temporary labor or services for which the H-2B nonimmigrant
is
sought.

* Will match a U.S. employer with a qualified H-2B worker in a more
timely fashion.

* With limited exceptions, U.S. employers will no longer need to file
for or receive a labor certification from the
Department of Labor.

* U.S. employers seeking H-2B temporary workers now will only be
required to file one application - the Form I-129, Petition for
Nonimmigrant Worker

+++++++++++++++++++++++++++++++++++++++++++++++++++

The last statement is very disturbing calls for only one form to be
used (I-129). As most of you already know, the reason we know so much
about which companies hire H-1B and H-2B visa holders and what types of
jobs that are taken by the guest-workers is because the Department of
Labor (DOL) has been fairly good about disclosing the Labor Condition
Application (LCA) data.

For more on the I-129 go to:
http://uscis.gov/graphics/formsfee/forms/i-129.htm

My groundbreaking efforts to obtain the LCA database by using the
Freedom of Information Act (FOIA) resulted in the first access the
public had to this information and it was a huge breakthrough in
blowing the lid off the secrecy in the H-1B program. Once my online
implementation of the LCA database got widespread publicity the DOL was
pressured to put their database online. Since then a few activists have
put additional searchable databases online. NONE OF THIS WILL BE
POSSIBLE IN THE FUTURE IF THE H-2B PROPOSAL GOES THROUGH AND IT IS
CARRIED OUT ON H-1B!

The USCIS, and before that the INS, have very poor records when it
comes to honoring FOIAs. President Bush and John Ashcroft have made
FOIAs almost useless for obtaining government information and the
situation is getting worse. I have tried for over three years to obtain
the I-129 database without success because the Department of Justice
(DOJ) won't cooperate. Initially they even denied that it existed.
Recently the DOJ notified me that they will not disclose the I-129 data
unless I hire a lawyer and sue them in federal court. I haven't been
the only one that has been stonewalled when requesting the I-129 visa
database by using the FOIA - at least 17 requests have been denied that
were submitted by activists and news reporters. In contrast, the DOL
was very cooperative about sharing their data both with me and many
other people that have requested it.

The USCIS will remove public access to this information so that
employers can hire H-2Bs without public scrutiny. If this change goes
through the public will no longer have access to LCAs because the form
will be eliminated and removed from the DOL. It's unlikely we will ever
see the I-129s unless someone helps me financially to hire a lawyer. I
believe that there is nothing our government would like more than to
cut off our access to LCAs because they want to keep the public
ignorant about the widespread replacement of American workers by
foreign labor. The DHS proposal will be used as a blueprint for H-1B if
the government doesn't hear opposition from the public. Eliminating the
H-2B LCA will shield employers from embarrassing public disclosures in
the H-2B LCA database. If the USCIS is allowed to drive the H-2B
application process, the program will escape rigorous public scrutiny.

There is another very important reason this proposal should be opposed:
Guest-worker visas should not be handled by the USCIS because the
Immigration Service isn't chartered to protect workers and therefore
cannot possibly be considered a qualified agency to adjudicate these
issues. The Department of Labor must be actively and independently
involved in the H-2B application process as well of all other
guest-worker visas.

The motivation for employers to push for these changes is quite simple.
They want to take the DOL out of the decision making process because
they consider that agency as an impediment to their importation of
cheap labor. Ever since the time that Reich and Papademetriou were in
DOL, the DOL has been viewed as a hostile barrier to employers on the
H-1B issue. Under Elain Chau the DOL has become corporate friendly but
of course most employers don't want to deal with even minor
inconveniences.

The H-2B proposal sets a disturbing precedent to change other
guest-worker visas such as H-1B. Employers should be held accountable
for their hiring practices and yet the USCIS will merely be a rubber
stamp for employers who choose to exploit cheap foreign labor. These
changes should not be allowed without Congressional approval because it
allows faceless bureaucrats to change fundamental aspects of the rules
that were set by Congress.

In summary, this proposal is totally unacceptable.

The Dept. of Homeland Security is taking public comments on this
proposal until the end of March (The original deadline was February but
it was extended for 30 days). This except was from the proposal:

Interested persons are invited to participate
in this rulemaking by submitting written data,
views, or arguments on all aspects of the proposed
rule. DHS also invites comments that relate to the
economic,environmental, or federalism affects that
might result from this proposed rule.

You can go to the proposal where there is a paragraph with directions
on how to give your opinion to the DHS on the changes. It contains
email addresses, snail mail etc.

You can comment online by going to this link:
http://docket.epa.gov/edkfed/do/EDKStaffCollectionDetailViewByID?collectionId=DHS-2004-0033

or use this shorter one:
http://makeashorterlink.com/?K3D6121AA

The first page of comments are all from employers that support the rule
changes but they all have complaints that it's still too strict. Some
of them want the yearly cap to be eliminated and others gripe that it
takes too long to get the visa approved. A growing list of critics can
be found on page 2, including mine if they post it.

The names of the employers making comments illustrate the types of jobs
that are going to H-2Bs. Here is a partial list:

Mackinac Island Labor Service, Inc
TNT Lawn & (and) Landscape Management, Inc.
Harvest and Trucking
Meriwether Inc.
Missouri Mowing, LLC
Amigos Labor Solutions, Inc.
The Insurance Group, Inc
Greg Baker Painting LLC
True Lawn
Enrique Gutierrez, Utopian Labor, LLC
A Better Image Lawn & (and) Landscape
Morin's Landscaping, Inc.
Immigration Services of Missouri, Inc. (ISOM)
Laura Wunder, Lawns of Distinction

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