This issue is part of a
controversy currently raging between the DOL and
professional organizations such as the Programmers Guild about
the U.S. Citizenship and Immigration Services (USCIS, formerly
the Department of Immigration and Naturalization) H-1B visa
quota for 2006.
Here’s how USCIS defines an H-1B
visa: “Established by the Immigration Act of 1990 (IMMACT), the
H-1B nonimmigrant visa category allows U.S. employers to augment
the existing labor force with highly skilled temporary workers.
H-1B workers are admitted to the United States for an initial
period of three years, which may be extended for an additional
three years. The H-1B visa program is utilized … to employ
foreign workers in specialty occupations that require
theoretical or technical expertise in a specialized field.
Typical H-1B occupations include architects, engineers, computer
programmers, accountants, doctors and college professors.”
The DOL requires that U.S.
employers who want to hire someone on an H-1B visa first submit
what is called an LCA (Labor Condition Application). The LCA
describes (briefly — sometimes just a title) the opening
available. Thus far, the department has received 51,939 LCAs.
Programmers Guild President Kim Berry and others are calling for
the DOL to post these LCAs and make them searchable, so that
anyone can apply for the open positions.
The cap for H-1B visas in 2006
is set at 58,200, but apparently, according to the USCIS Web
site, 22,383 visas have already been approved and 29,556 are
still pending. Berry says the DOL is “refusing to disclose
the opening to U.S. citizens so that they may have equal
opportunity to apply for and fill these U.S. jobs.”
David James, a spokesman for the
DOL, says, “… statutorily speaking, Congress doesn’t give the
authority to us, the Department, to do what you are asking us to
do. We comply to the fullest extent that the law allows us to
comply. This is a congressional legislative matter. The
statutory language is very narrow about what we can and cannot
Berry says no statute specifies
when and how LCA records are released. He believes that the DOL
is stonewalling requests by organizations like his to publish
these openings on the DOL Web site, despite the fact that a
foreign worker with a valid 2006 H-1B visa could not start
employment until October 1, 2005. What’s more, Berry says that a
disproportionate number of these openings are for software
engineers and computer programmers.
Employers are under no
obligation to hire Americans, but the DOL should be obligated to
make the information available to the public before the jobs are
filled, not after, says Berry.
Norman Matloff, professor of
computer science at the University of California, Davis,
e-mailed me that “there is no question that the Department of
Labor, ironically, is acting in a manner hostile to labor.” I
couldn’t agree more.
Is the government exempt from
treating customers — in other words, taxpayers — with respect?
Does customer service not exist in its vocabulary? If there is a
reason why the DOL cannot post these positions, it should cite
the statute. Or better yet, help lobby for a change.