AFL-CIO says student visa extension hurts tech wages

Date: Saturday, June 14, 2008 3:52 AM

<<<<< JOB DESTRUCTION NEWSLETTER No. 1878 -- 6/14/2008 >>>>>

Thibodeau's article is excellent, and it allows comments. I was very surprised
to see that the AFL-CIO publicly opposes the Optional Practical Training (OPT)
extension.

To find out more about the courageous attorneys who filed the lawsuit against
the DHS click this link. If you want to help them go to the web page that lets
you make a tax-deductible donation.

Immigration Reform Law Institute (IRLI)
http://www.irli.org/

A total of 839 public comments were received before the deadline. Most
comments were in support of the extension (booo!) and there were many who
thought the extension was too restrictive (booo*10!). For reasons that are
tough to explain, American workers and immigration organizations were, for the
most part, silent (booo*1000!).

You can read the comments by going to this link:

http://www.regulations.gov/fdmspublic/component/main?main=DocketDetail&d=ICEB-2008-0002

If that doesn't work, go to their primary link and put "ICEB-2008-0002"
without quotes in the search engine. Then click the link to ICEB-2008-0002-
0001.

http://www.regulations.gov

The AFL-CIO comment is #726 and can be read by clicking this link:
http://www.regulations.gov/fdmspublic/component/main?main=DocumentDetail&o=090000648061ac23

For a formatted version of the document click the WORD attachment. The entire
document is worthy of reading but these are my two favorite passages.

This one describes why the OPT extension is a de facto H-1B increase.

By extending the OPT period and work authorization period, the
interim final rule turns a student visa program into a labor market
program, and essentially lifts the cap that Congress has placed on
the H1-B program. The DHS has no legal authority to do that.

H-1B protections are a joke. OPT is far worse and this is why.

In addition, the interim final rule allows employers to completely
bypass the protections for workers (both domestic workers and
foreign workers) that Congress built into the H-1B program.

The AFL-CIO exaggerated the protections that American workers have against
discrimination, but their main point is the most important. Bottom line is
this -- if you think H-1B is bad, just wait until you lose your job to an OPT!

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

http://www.computerworld.com/action/article.do?command=viewArticleBasic&articleId=9098018

AFL-CIO says student visa extension hurts tech wages

Patrick Thibodeau

June 13, 2008 (Computerworld) WASHINGTON -- The Bush administration's

decision to allow foreign students to work in the U.S. for up to 29 months
before getting an H-1B visa faces opposition from the AFL-CIO. The largest
labor organization in the U.S. labeled the move a backdoor H-1B cap increase
that could lower wages for U.S. tech workers, according to comments about the
rule change made available this week by the government.

The U.S. Department of Homeland Security (DHS) made the "emergency" rule
change earlier this year to deal with the limits imposed by the 85,000 slot H-
1B cap. The government received 163,000 applications this year for those
visas. What the DHS did was extend the Optional Practical Training (OPT)
provision that previously allowed students to work after graduation for one
year on their student visa. Although the change is a done deal under the
agency's "emergency" rule-making provisions, the federal government still had
to seek comments.

Ana Avendano, director of the AFL-CIO's immigrant worker program, wrote, in
comments posted Thursday on Regulations.gov, that "by extending the OPT period
and work authorization period, the interim final rule turns a student visa
program into a labor market program, and essentially lifts the cap that
Congress has placed on the H-1B program."

Moreover, Avendano said the rule change "allows employers to completely
bypass" any of the protections in the H-1B program that prevent employers, for
instance, from using foreign workers to break a strike. Moreover, students
working on OPT won't have to be paid the prevailing wage as required under the
H-1B program. An OPT employee could, theoretically, work for minimum wage, she
wrote.

"Given that DHS's own estimates are that tens of thousands of OPT workers will
soon be in the market, this is certain to exert downward pressure on wages and
other working conditions," wrote Avendano.

Opposition groups, including the Programmers Guild, are seeking a temporary
injunction in U.S. District Court in Newark, N.J., against the rule change.
They are also arguing that the decision to extend the OPT time period
encourages some employers to advertise specifically for recent graduates,
helping to skew the market against U.S. tech workers. In court papers, they
included ads from online job sites Dice and Monster from employers encouraging
OPT workers to apply.

By contrast, groups and institutions backing the OPT extension said that the
rule change is too restrictive because it limits the degrees it applies to and
excludes some IT training programs. In particular, they cited its requirement
that U.S. employers participate in E-Verify, the government's electronic
verification program for immigrants.

Mark Hallett, director of international student and scholar services at
Colorado State University, called the E-Verify requirement a "deal killer"
because most employers aren't participating in the verification program.

"This requirement will virtually extinguish all hope for students wishing to
avail themselves of the OPT extension benefit because most employers do not
plan to voluntarily join E-Verify," wrote Hallett in a letter, one of dozens
posted Thursday.

The Securities Industry and Financial Markets Association voiced a similar
concern. "Less than 1% of U.S. employers are currently enrolled in E-Verify,
so the vast majority of employers wishing to retain or hire" an OTP graduate
"will not already be enrolled in the program," wrote David Strongin, managing
director of the association.

E-Verify remains voluntary, but there are concerns about the accuracy of the
verification process, the potential for error and the system's ability to
handle large numbers of employers.

Although the AFL-CIO opposes the rule, the largest business group in the U.S.,
the Chamber of Commerce, does not. Although it had issues with some of the
provisions of the rule, including the E-Verify requirement, Randel K. Johnson,
vice president of labor immigration and employee benefits, and several others
who signed the letter, wrote: "The Chamber believes that attracting the
world's most talented people to our colleges and universities, and then
allowing them to stay for some time to work and be trained by U.S. employers,
is paramount to our nation's competitiveness in the global economy."

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

http://www.regulations.gov/fdmspublic/component/main?main=DocumentDetail&o=090000648061ac23

Office of Policy
U.S. Immigration and Customs Enforcement Department of Homeland Security
425 I Street, N.W.
Room 7257
Washington, DC 20536

June 9, 2008

By electronic submission: http://www.regulations.gov

Re: Comments on Interim Final Rule,

DHS No. ICEB-2008-0002; ICE No. 2124-08
RIN 1653-AA56

Dear Sir or Madam:

The American Federation of Labor and Congress of Industrial Organizations
("AFL-CIO"), a voluntary federation of 56 national and international labor
organizations representing some 10.5 million working men and women,
respectfully submits these comments to the Department of Homeland Security
("DHS") on the Proposed Rule published at 73 Fed.Reg. 18944 (April 8, 2008).

The AFL-CIO opposes extending the maximum period of optional practical
training (OPT) from 12 months to 29 months for F-1 students who have completed
a science, technology, engineering, or mathematics (STEM) degree.

We also oppose extending work authorization for students with pending H-1B

Petitions.

Congress created the F-1 visa classification to allow individuals who wish to
enter the United States solely and temporarily to pursue a full course of
study in an academic program. The visa category is not an employment
category, and Congress did not intend it to be an employment visa.

By extending the OPT period and work authorization period, the interim final
rule turns a student visa program into a labor market program, and essentially
lifts the cap that Congress has placed on the H1-B program.
The DHS has no legal authority to do that.

In addition, the interim final rule allows employers to completely bypass the
protections for workers (both domestic workers and foreign workers) that
Congress built into the H-1B program. Employers who hire students in OPT are
not subject to any of the requirements to which H-1B employers are subject.
An employer who wishes to employ an H-1B worker must first file a Labor
Condition Application ("LCA") with the United States Department of Labor
(DOL), which contains certain information concerning wages to be paid and
other matters. See section 212(n) of the Act, 8 U.S.C. ' 1182(n) (2000 & Supp.
IV 2004) (describing the LCA that is filed with the Department of Labor);
United States v. Ramirez, supra; Venkatraman v. REI Systems, Inc., supra; 8 C
F.R. ' 214.2(h)(1)(ii)(B)(1) (2007); 20 C.F.R.
' 655.700 (2007) (Department of Labor regulation describing provisions
governing H-1B visas and requirements for obtaining a certified LCA).

An employer who files an H-1B petition for a computer programmer, for example,
must file an LCA with the DOL, and must attest, among other things, that the
foreign worker is being hired in the absence of a strike or lockout. Congress
included this provision to prevent employers from using foreign workers to
break a strike. An employer who hires an F-1 student into the very same job
is not required to file an LCA, nor is it required to make any attestations.
Thus, the rule permits an employer to hire a temporary foreign STEM worker
during a strike or lock-out, which contravenes Congressional intent.

Importantly, OPT employers are not required to pay a prevailing wage. Thus an
employer will be have the ability to hire a STEM temporary foreign worker to
whom the employer would have to pay the prevailing wage if it
hired the worker under the H1B program, for minimum wage! Given that DHS'
own estimates are that tens of thousands of OPT workers will soon be in the
market, this is certain to exert downward pressure on wages and other working
conditions.

Congress has also established a mechanism through the DOL to enforce the LCA
conditions, including a mechanism for workers to file complaints against an H-
1B employer who may be violating the provisions of the H-1B program. See 8
U.S.C. ' 1182(n)(2)(G)(ii). Thus, a worker employed as a computer programmer
with an H-1B visa, for example, has the ability to file a complaint with the
DOL if the employer violates the H-1B program by, for example, supplying
incorrect or false information in the LCA; failing to pay the worker the
higher of the prevailing wage or actual wage; making illegal deductions from
wages (for petition processing, etc.); failing to comply with "no
strike/lockout" requirement, or retaliating or discriminating against the
worker for filing a complaint or cooperating with an investigation. If that
very same worker is employed in the OPT, she has no recourse if she suffers an
illegal deduction in wages, or is the victim of retaliation or discrimination.
The interim final rule denies the same workers that Cngress sought to protect,
these vital protections.

The H-1B program has had an extremely negative impact on the wages and
benefits of workers in the high tech industry and badly is in need of repair
and reform. See U.S. Government Accountability Office, Report to
Congressional Requesters, "H-1B Visa Program: Labor Could Improve Its
Oversight and Increase Information Sharing with Homeland Security." June 2006.
Substantially growing the number of temporary foreign workers-in a much more
vulnerable position than H1B workers-in STEM occupations is
clearly not the answer.

The DHS has provided no reasonable explanation for this rule. It cites
repeatedly to concerns about the US ability to compete in the global economy.
Those concerns are outside the purview of the DHS whose mission is to: "(A)
prevent terrorist attacks within the United States; (B) reduce the
vulnerability of the United States to terrorism; and (C) minimize the damage,
and assist in the recovery, from terrorist attacks that do occur within the
United States." Homeland Security Act of 2002.

Finally, the agency unlawfully invoked the "good cause" exemption to the
notice and comment requirement of Administrative Procedure Act (APA) 5 U.S.C.
' 553(b). The "good cause" exception, which allows an agency to dispense with
notice and comment when it finds that those procedures are "impracticable,
unnecessary, or contrary to the public interest," See 5 U.S.C. ' 553(b)(B),
is to be "narrowly construed and only reluctantly countenanced." Tennessee Gas
Pipeline Co. v. FERC, 297 U.S. App. D.C. 141,
969 F.2d 1141, 1144 (D.C. Cir. 1992) (quoting New Jersey v. EPA, 200 U.S.
App. D.C. 174, 626 F.2d 1038, 1045 (D.C. Cir. 1980)). The exception is not an
"escape clause"; its use "should be limited to emergency situations."
American Fed'n of Gov't Employees v. Block, 210 U.S. App. D.C. 336, 655 F.2d
1153, 1156 (D.C. Cir. 1981).

"Impracticable" means a situation in which the due and required execution of

the agency functions would be unavoidably prevented by its undertaking public
rule-making proceedings. "Unnecessary" means unnecessary so far as the public
is concerned, as would be the case if a minor or merely technical amendment in
which the public is not particularly interested were involved. "Public
interest" supplements the terms "impracticable" or "unnecessary"; it requires
that public rule-making procedures shall not prevent an agency from operating
and that, on the other hand, lack of public interest in rule-making warrants
an agency to dispense with public procedure.

S. Rep. No. 752, 79th Cong., 1st Sess. 14 (1945), reprinted in Senate
Judiciary Committee, 79th Cong., 2d Sess., Administrative Procedure Act
Legislative History 185, 200 (1946), quoted in Kollett, 619 F.2d at 145.

It cannot be said in this case that notice and comment were "unnecessary"
or "contrary to the public interest," or "impracticable" as these terms are
defined. The final interim rule is clearly not a minor or technical
amendment: it will allow employers to hire tens of thousands of workers in the
high tech field under conditions that undermine labor standards for all
workers. Nor would public rule-making proceedings here prevent execution of
the DHS functions. The agency is well able to continue to protect the
nations' security while giving the public the opportunity to comment on the
impact that this rule would have on labor standards. The public interest in
rule making is strong. "The purpose of prior notice and comment is to afford
persons an opportunity to influence agency action in the formative stage,
before implementation, when the agency is more likely to be receptive to
argument." Kollett v. Harris, 619 F.2d 134, 145 (1st Cir.
1980). What's at stake here are the wages and other working conditions for an
entire industry. The public deserved the opportunity to comment and attempt
to influence agency action when it still mattered-that is, before the agency
implemented the rule.

For these reasons, the AFL-CIO urges DHS to withdraw the interim final
rule.

Sincerely,

Ana Avendaqo
Director, Immigrant Worker Program

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