New GAO report: H-1B Foreign Workers: Better Controls Needed to Help Employers and Protect : LUSENET : Grassroots Information Coordination Center (GICC) : One Thread

This is an abridged version of this report

************************************************ GAO Report:

H-1B Foreign Workers: Better Controls Needed to Help Employers and Protect Workers

*Results in Brief*

Employers have used the H-1B visa program to fill hundreds of thousands of positions in which certain skills, including computer programming, were needed quickly.

In 1999:

H-1B workers' median salary: $45,000 H-1B workers' median age: 28 Almost half born in India. 40% were already in the U.S.

IT workers differed somewhat from the rest in that they were Younger Less likely to have and advanced degree More likely to come from India Less likely to already be in the U.S.

Despite the H-1B program's success at helping employers bring in highly skilled foreign workers:

The DoL is limited to ensure that the employer's application form had no obvious errors or ommissions. The DoL does not have the authority to verify if the information supplied by the employer is correct.

The DoL has limited authority to ensure employers are complying with the law after H-1B workers arrive in the U.S. The DoL cannot initiate enforcement actions even if it believe employers are violating the law.

The INS has no national systematic approach for adjudicators to follow to ensure the consistent review of employer petitions. There is not sufficient assurance that the INS reviews are adequate for detecting program noncompliance or abuse.

The IT employers we contacted told us that they are also trying to improve U.S. workers' IT skills.

These efforts [training programmers] should help increase the number of U.S. workers with IT skills. However, their ultimate effect is unknown because the programs are new, their focus is longer-term, and in some cases, there is a lack of data about what IT skills are needed.


Studies have estimated IT vacancies in the US from 190,000 to 700,000, but some studies define IT workers very broadly whereas others focus on specific IT occupational clusters. Moreover, the studies provide little information about these vacancies, such as how long positions were vacant, whether sufficient wages to attract workers were offered, or whether companies considered jobs filled by contractors as vacancies. We, the DoC and the Computer Research Association have reported that more information is needed to characterize the IT labor market and determine the extent of any shortage.

The NSF report planned for October 2000 is expected to offer anecdotal information rather than empirical evidence.

*Implementation Weaknesses Leave the Program Vulnerable to Abuse and Lead to Inefficient Customer Service*

The program is vulnerable to abuse - both by employers who do not have bona fide jobs to fill or do not meet requierd labor conditions, and by potential workers who present false credentials. Employers who meet H-1B requirements may not be able to obtain the H-1B workers they need in a timely manner.

*Labor Has Limited Authority to Question Information on the LCA* Employers are required to certify no strike, lockout, or work stoppage is underway. The DoL must approve LCAs even if they know from another source that a strike is unerway. Employers can use almost any source to determina a prevailing wage. Even if the DOL knows a prevailing wage is incorrect, they must approve the LCA.

*Labor Has Limited Authority to Question Information on the LCA* An H-1B-related investigation can only take place in response to: 1. A complaint from an aggrieved person or organization. An investigation based on a review of LCA or INS petition information is prohibited by law. Only 135 complaints were received in spite of 137,000 H-1B approvals. A Labor official told us that these workers are reluctant to complain about their working conditions, as they are dependent on employers to enable them to stay in the United States or sponsor their permanent residency. 2. The DoL obtains information about a particular employer who, within the last 5 years, has been found to have committed a willful failure to meet a condition specified in the LCA or willfully misrepresented a material fact in the LCA. These criteria are very difficult to meet and only one employer has been established as a "willful" violator. 3. The DoL receives specific credible information from a reliable source (other than a complainant or an officer or employee of the DoL) that the employer has failed to meet certain specified LCA conditions. The Secretary of Labor must personally certify that these conditions exist. No investigation has ever resulted from this process.

Although its [the DoL] authority to investigate is limited, there is evidence to believe that program noncompliance under the H-1B program exists. 83% of investigations found violations (compared to 40 to 60% under other laws) and the amount of back wages owed to H-1B workers has been substantial.

There are increasing instance of program abuse in which workers are brought into the US to work, but are not employed and receive no pay until jobs are available.

Other violations have included employers withholding wages from employees who have voluntarily left for employment elsewhere.

DoL's investigative findings are corroborated by a 1996 DoL Inspector General report that found 75% of aliens were working for employers who did not adequately document the proper wage on the LCA and, when the actual wage could be determined, 19% of H-1B workers were paid less than the wage specified on the LCA.

*Supervisory Review and Performance Appraisal Processes Encourage Approvals* The process for assessing INS adjudicators' performance can give adjudicators and incentive to approve petitions rather than scrutinize them carefully for their merit.

*Implications of Inadequate INS Adjudication* The H-1B program is vulnerable to program noncompliance and abuse by potentially allowing H-1B petitions that do not meet requirements to be approved. There is evidence that some employers and workers have abused the program. INS investigators following up after petitions have been approved have found a number if instances of program fraud including: 1. Workers brought into the US working in occupations not eligible for the program. 2. Employers who created shell corporations and created false credentials and documents for aliens who were not eligible for H-1B. INS has found workers brought to the US under program

*Efforts Are Under Way to Improve the IT Skills of the U.S. Workforce* Three pages documenting the grants and efforts employers are taking to train and recruit workers. While overwhelmingly the off-the-shelf "training is the answer", they do raise the question as to whether these programs will work.

*Conclusion* Repetition of points above. After a sugary introduction repeating the "results in brief" comment above, it reiterates the problems with enforcement.

*Matters for Congressional Consideration* Have the LCA and I129 both be submitted to the INS. Give subpoena power to the DoL to obtain employers' records during investigations. Allow the DoL to perform baseline evaluations.

*Recommendations* Clean up the INS

*Agency Comments* CYA


Results in Brief

Employers have used the H1-B visa program to fill hundreds of thousands of positions in which certain skills, including computer programming, engineering, education and medicine, were needed quickly. According to INS data, about 60 percent of the positions that new workers were approved to fill in fiscal year 1999 were related to IT. Workers approved for H1-B visas were scheduled to fill positions that offered initial median annual salaries of $45,000. The workers had a median age of about 28 years at the time of approval, and almost half were born in India. About 40 percent of them were already in the United States on another type of visa. Those workers approved for H1-B visa in IT-related occupations differed somewhat from other H1-B workers in that they were less likely to have an advanced degree, were younger, more likely to be from India, and less likely to be in the United States on another type of visa when approved for the H-1B program.

Despite the H-1B program's success at helping employers bring in highly skilled foreign workers, Labor's limited legal authority to enforce the program's requirements and weaknesses leave the program vulnerable to abuse. Delays and administrative problems have also led to inefficient service for employers using the program. Under the law, in certifying employers' initial requests for H-1B workers, Labor is limited to ensuring that the employer's application form has no obvious errors or omissions. It does not have the authority to verify whether information provided by employers on labor conditions, such as wages to be paid, is correct. Moreover, some of this same information is reviewed again by INS during its assessment of employer requests for workers. Further, Labor has limited authority to ensure that employers are actually complying with the law's requirements after the H-1B workers are employed in the United States. Unlike under other labor laws it enforces, Labor generally cannot initiate enforcement actions (such as conducting investigations and subpoeniaing employer records), even if it believes employers are violating the law. We have included two matters for congressional consideration to address Labor's limited authority under the law. Labor disagreed with our matter concerning the transfer of LCA review to the INS, arguing that consideration should be given to making Labor's review more substantive. Unless the Congress decided to authorize a more substantive review, transfer to INS would be more efficient. Labor agreed with our second matter to broaden Labor's enforcement authority for the H-1B program.

INS is responsible for ensuring that H-1B positions are in fact specialty occupations and that workers granted entry are qualified for the positions. Until recently, INS had no national systematic approach for adjudicators to follow to ensure the consistent review of employer petitions. Further, INS staff conducting these reviews continue to lack easy access to specific, case-related information that would help them assess the merit of employers' requests, which can also lead to inconsistent or incorrect approvals of requests. Because existing supervisory review and performance appraisal systems for INS staff reviewing petitions are based largely on the number of requests processed, rather than the quality of the review, staff can be rewarded for timely handling of petitions rather than for careful scrutiny of petitions' merits. As a result, there is not sufficient assurance that INS reviews are adequate for detecting program noncompliance or abuse. In addition, INS decisions about the priority of H-1B application processing related to other types of petitions handled by INS have resulted in delays of several months to process employers' requests for H-1B workers. Other system weaknesses at INS have contributed to errors in counting the number of visas approved under the H-1B visa program. We make three recommendations designed to enhance the consistency and correctness of INS' H-1B decisions. INS generally did not agree with our recommendations, believing that current program procedures are sufficient to detect noncompliance and abuse. We continue to believe that actions beyond those taken by INS are warranted.

-- K (, September 21, 2000


Soory -

Listmaster, could you please delete this one. The system "hung" while I was transmitting. Thanks!

-- K (, September 21, 2000.

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