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US Department of Labor asks companies to use a new H-1B visa requirement, designed to draw the attention of media and others to high-tech companies that outsource services. (Photo By Bill Clark / CQ Roll Call)Getty
On Monday, November 19, 2018, the United States Department of Labor (DOL) has begun to force employers to use a new H-1B Work Conditions Application (ACL) form designed largely to damage the reputation of employers in the high-tech sector. The use of government forms to compel companies to provide information in order to encourage negative media attention or other types of retaliation for outsourcing services should relate to the world business and the general public.
The main provision of the new form is to require employers of H-1B professionals to name companies in which an H-1B visa holder will perform work on a contract (ie a third-party site with the name client / client). The purpose of this requirement is clear.
"This review of the application of working conditions is nothing more than an attempt to discourage outsourcing of services by US companies whose contractors employ H-1B professionals," Vic said. Goel, mr.Animation partner, Goel & amp; Anderson, in an interview.
On the legal side, the working conditions application is the form used by employers to certify that they will comply with US immigration legislation, including providing a salary for visa holders. 1B and working conditions at least equivalent to those of workers in the United States. The name of the company where the services will be performed on contract is irrelevant – unless the administration seeks to discourage companies from entering into contracts with companies that use visa holders. 1B as part of their workforce due to the implied threat of negative attention aroused in the media, or outside groups and the federal government.
In addition to increase of refusals H-1B petitions, Trump administration officials have concentrated a number of immigration restrictions companies that provide information technology (IT) services. These actions inspired many lawsuits. (See right here, right here and right here.) This is the case even though IT companies are using fewer H-1B visas: "More and more H-1B visas are destined for US technology companies, reflecting the high demand for highly skilled talent. qualified in the US economy. . . The 7 largest Indian companies have only received 8,468 H-1B petitions approved for a first job during fiscal 2017, a 43% decrease for these companies since FY2015. Said a national foundation for American politics. analysis USCIS data.
An example of how government information is used to launch media attacks (and others) was published in an article in 2017. article claimed by a well-known American technology company "had planned to use the [H-1B] visa program to complement its staff. He came to this conclusion by searching the Department of Labor database and selecting the applications that matched the company's address (the site where the work could be done).
This line of attack is based on faulty premises. First, all major companies outsource work to focus on essential skills. Donald Trump recently blamed France for having a much higher unemployment rate than the United States. The American economy is one of the main reasons and its labor law is much more flexible than in France. Outsourcing for IT and other services largely explains the competitiveness of US companies. Coercive companies will encourage the recruitment of foreign nationals abroad and the outsourcing of computer services outside the United States – beyond the reach of US labor and immigration authorities.
Second, the demand for computer skills is strong, while the annual number of US-born graduates with these skills is low. In American universities, only about 20% of full-time computer science and electrical engineering students are American students. This is the case even though unemployment rates in computer specialties are incredibly low and pay much better than other fields for recent graduates.
Third, data from the Department of Labor are unreliable in determining the number of professionals working for a particular company or location. Employers must apply for a manpower requirement in any area where an H-1B visa holder may work, whether the person has previously worked there or even obtained an approved visa to work in the United States. United. The number of DOL certified positions for an employer can be 5 to 10 times the number of new H-1B petitions approved for a company.
The administration has already tried to give a misleading picture of the number of new businesses holding an H-1B visa employed. Some USCIS reports list all H-1B petitions approved by the employer in one year without providing context. For example, one company approved about 3,200 new H-1B queries for the first job during FY 2017, but a USCIS report indicated that nearly 29,000 petitions had been approved this year. year – 9 times more. The reason? Under USCIS administrative decision Question of Simeio solutions, since 2015, employers have to file amended petitions if the work will take place in a new metropolitan statistical region (MSA). The most important figures are due to the extensions of existing employees and the need to comply with the government bureaucracy.
The zeal of the main opponents of the immigration administration has been demonstrated in the proposed version of the new application on working conditions. In the midst of those who follow manpower problems, DOL used the term "secondary employer" on the form to describe the workplace on which an H-1B visa holder would be rendering services.
"Calling a secondary employer is nonsense," says Lawrence Lorber, labor law specialist at Seyfarth Shaw LLP. "This raises a lot of problems in the common employer context, which is a major political issue."
The National Labor Relations Commission has ad He would commit to establishing rules for joint employers, while Secretary of Labor Alexander Acosta also said that DOL would change its definition. According to Lorber, it was therefore very curious for the Department of Labor to use the term "secondary employer" and to do it in a different form, without going through the Administrative Procedure Act. (Is Apple a "secondary employer" for the person who mows the lawn at his headquarters if Apple signs an agreement with a contractor to provide lawn services?)
Lynden Melmed, Partner, Berry Appleman & amp; Leiden notes that in the revised version of the form, the DOL changed the term "secondary employer" to "secondary entity". But other problems remain. "Immigration agencies have always recognized that there are legitimate reasons why US companies do not want to disclose their private contracts," said Melmed. "The new disclosure requirement reflects a shift in priorities of the Ministry of Labor."
Industry sources said the Ministry of Labor's shift was aimed at giving companies a bad image, inciting the press or any other opposition and gathering information in order to implement additional restrictions on business. # 39; immigration. The new form will complicate process H-1B and will result in additional costs for employers.
Adding the name of a company on which the work will be performed could lead to more applications for working conditions being filed, as well as higher production costs to US citizenship and immigration services. United, according to comments submitted to the Department of Labor. A separate requirement in the new form raises other cost issues because it requires employers to provide the documentation of a degree when they use the exemptions provided by law for H dependent employers. -1B.
There are also legal issues as to whether the new information required on the form may be imposed by a change of form, rather than by regulation legally binding the Department of Labor to propose a regulation, to receive public comment, and then to issue a final rule under the Administrative Procedure Act. .
Requiring employers that they name the company where the work will be done is not necessary to enforce the immigration law. The Trump administration administrators who have instituted this requirement would know that because they know the law well.
"The application of the working conditions ensures that the H-1B professional is paid at least at the prevailing wage in the city and state where he works," said Bo Cooper, a partner in the firm. Fragomen lawyers and former general counsel. Immigration and Naturalization Service. "With many types of professional work, an H-1B professional may be required to perform on-site work at the premises of another company. This does not affect the obligations of the H-1B worker's employer. Knowing the name of the client company adds nothing to DOL's ability to review or enforce the law through the H-1B.. "(Emphasis added.)
The discord in America has reached a worrying level. In February 2017, an armed man shouted, "Get out of my country" and shot down Srinivas Kuchibhotla and another H-1B (Alok Madasani) visa holder at Austins Bar & amp; Grid in Olathe, Kansas. Srinivas Kuchibhotla died and his friend was injured. (Ian Grillot was shot while trying to disarm the shooter.)
Motivating citizens to fight aliens, including their employers and clients, is not a legitimate function of the government. Federal officials play a dangerous game.
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US Department of Labor asks companies to use a new H-1B visa requirement, designed to draw the attention of media and others to high-tech companies that outsource services. (Photo By Bill Clark / CQ Roll Call)Getty
On Monday, November 19, 2018, the United States Department of Labor (DOL) began to compel employers to use a new H-1B Application of Conditions (ACL) form designed primarily to inflict damage to the reputation of employers in the high-tech sector. The use of government forms to compel companies to provide information in order to encourage negative media attention or other types of retaliation for outsourcing services should relate to the world business and the general public.
The main provision of the new form is to require employers of H-1B professionals to name companies in which an H-1B visa holder will perform work on a contract (ie a third-party site with the name client / client). The purpose of this requirement is clear.
"This review of the application of working conditions is nothing more than an attempt to discourage outsourcing of services by US companies whose contractors employ H-1B professionals," Vic said. Goel, mr.Animation partner, Goel & Anderson, in an interview.
On the legal side, the working conditions application is the form used by employers to certify that they will comply with US immigration legislation, including providing a salary for visa holders. 1B and working conditions at least equivalent to those of workers in the United States. The name of the company where the services will be performed on contract is irrelevant – unless the administration seeks to discourage companies from entering into contracts with companies that use visa holders. 1B as part of their workforce due to the implied threat of negative attention aroused in the media, or outside groups and the federal government.
In addition to increase of refusals H-1B petitions, Trump administration officials have concentrated a number of immigration restrictions companies that provide information technology (IT) services. These actions inspired many lawsuits. (See right here, right here and right here.) This is the case even though IT companies are using fewer H-1B visas: "More and more H-1B visas are destined for US technology companies, reflecting the high demand for highly skilled talent. qualified in the US economy. . . The 7 largest Indian companies have only received 8,468 H-1B petitions approved for a first job during fiscal 2017, a 43% decrease for these companies since FY2015. Said a national foundation for American politics. analysis USCIS data.
An example of how government information is used to launch media attacks (and others) was published in an article in 2017. article claimed by a well-known American technology company "had planned to use the [H-1B] visa program to complement its staff. He came to this conclusion by searching the Department of Labor database and selecting the applications that matched the company's address (the site where the work could be done).
This line of attack is based on faulty premises. First, all major companies outsource work to focus on essential skills. Donald Trump recently blamed France for having a much higher unemployment rate than the United States. The American economy is one of the main reasons and its labor law is much more flexible than in France. Outsourcing for IT and other services largely explains the competitiveness of US companies. Coercive companies will encourage the recruitment of foreign nationals abroad and the outsourcing of computer services outside the United States – beyond the reach of US labor and immigration authorities.
Second, the demand for computer skills is strong, while the annual number of US-born graduates with these skills is low. In American universities, only about 20% of full-time computer science and electrical engineering students are American students. This is the case even though unemployment rates in computer-related specialties are incredibly low and pay much better than other fields for recent graduates.
Third, data from the Department of Labor are unreliable in determining the number of professionals working for a particular company or location. Employers must apply for a manpower requirement in any area where an H-1B visa holder may work, whether the person has previously worked there or even obtained an approved visa to work in the United States. United. The number of DOL certified positions for an employer can be 5 to 10 times the number of new H-1B petitions approved for a company.
The administration has already tried to give a misleading picture of the number of new businesses holding an H-1B visa employed. Some USCIS reports list all H-1B petitions approved by the employer in one year without providing context. For example, one company approved about 3,200 new H-1B queries for the first job during FY 2017, but a USCIS report indicated that nearly 29,000 petitions had been approved this year. year – 9 times more. The reason? Under USCIS administrative decision Question of Simeio solutions, since 2015, employers have to file amended petitions if the work will take place in a new metropolitan statistical region (MSA). The most important figures are due to the extensions of existing employees and the need to comply with the government bureaucracy.
The zeal of the main opponents of the immigration administration has been demonstrated in the proposed version of the new application on working conditions. In the midst of those who follow manpower problems, DOL used the term "secondary employer" on the form to describe the workplace on which an H-1B visa holder would be rendering services.
"Calling a secondary employer is nonsense," says Lawrence Lorber, labor law specialist at Seyfarth Shaw LLP. "This raises a lot of problems in the common employer context, which is a major political issue."
The National Labor Relations Commission has announced that it will enact regulations on joint employers, while Labor Secretary Alexander Acosta has also announced that DOL will change its definition. According to Lorber, it was therefore very curious for the Department of Labor to use the term "secondary employer" and to do it in a different form, without going through the Administrative Procedure Act. (Is Apple a "secondary employer" for the person who mows the lawn at his headquarters if Apple signs an agreement with a contractor to provide lawn services?)
Lynden Melmed, partner, Berry Appleman & Leiden, notes that in the revised version of the DOL form, the term "secondary employer" has been changed to "secondary entity". But other problems remain. "Immigration agencies have always recognized that there are legitimate reasons why US companies do not want to disclose their private contracts," said Melmed. "The new disclosure requirement reflects a shift in priorities of the Ministry of Labor."
Industry sources said the Ministry of Labor's shift was aimed at giving companies a bad image, inciting the press or any other opposition and gathering information in order to implement additional restrictions on business. # 39; immigration. The new form will complicate process H-1B and will result in additional costs for employers.
Adding the name of a company on which the work will be performed could lead to more applications for working conditions being filed, as well as higher production costs to US citizenship and immigration services. United, according to comments submitted to the Department of Labor. A separate requirement in the new form raises other cost issues because it requires employers to provide the documentation of a degree when they use the exemptions provided by law for H dependent employers. -1B.
There are also legal issues as to whether the new information required on the form may be imposed by a change of form, rather than by regulation legally binding the Department of Labor to propose a regulation, to receive public comment, and then to issue a final rule under the Administrative Procedure Act. .
Requiring employers that they name the company where the work will be done is not necessary to enforce the immigration law. The Trump administration administrators who have instituted this requirement would know that because they know the law well.
"The application of the working conditions ensures that the H-1B professional is paid at least at the prevailing wage in the city and state where he works," said Bo Cooper, a partner in the firm. Fragomen lawyers and former general counsel. Immigration and Naturalization Service. "With many types of professional work, an H-1B professional may be required to perform on-site work at the premises of another company. This does not affect the obligations of the H-1B worker's employer. Knowing the name of the client company adds nothing to DOL's ability to review or enforce the law through the H-1B.. "(Emphasis added.)
The discord in America has reached a worrying level. In February 2017, an armed man shouted, "Get out of my country" and shot down Srinivas Kuchibhotla and another H-1B (Alok Madasani) visa holder at the Austins Bar & Grille in Olathe, Kansas. Srinivas Kuchibhotla died and his friend was injured. (Ian Grillot was shot while trying to disarm the shooter.)
Motivating citizens to fight aliens, including their employers and clients, is not a legitimate function of the government. Federal officials play a dangerous game.
