Workers, and Bosses, in a Visa Maze : LUSENET : Grassroots Information Coordination Center (GICC) : One Thread

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April 29, 2001 Workers, and Bosses, in a Visa Maze

By LESLIE WAYNE SELIN, N.J. -- At the Delhi Darbar restaurant, where the Indian expatriate community here comes to eat, the talk is not about the food, but about the uncertainty of life in America these days. Gathered around the table are four computer programmers, born in India and educated at top schools there, who now work in high-technology jobs in the New York area. Along with their wives and children, they came here nearly six years ago, on the promise of a job paying 10 times more than they could earn back home and the expectation of pursuing the American dream.

But they cannot. The four — and up to 420,000 others like them — are caught up in a labyrinth of immigration laws, Congressional politics, the competing forces of the high-tech industry and organized labor and a tortuous, dysfunctional process of gaining "green cards" that allow permanent residency here. As a result, while they write the Java computer programs or manage the C++ computer projects that American business needs, they are never quite sure which end of the earth — the United States or India — they should call home.

"All of us are in limbo," said Shailesh Gala, one of the four, as they munched on chicken tikka and curries. "They created a false promise for us. Everyone who comes here has worked hard. We are waiting. Waiting. Waiting. Waiting, and nothing is happening." As heads nodded in agreement, another programmer, Bhushan Sethi, said: "We are migrating through legal ways. We are here when the country needed us. But when we need this country, it is not there. Give us the opportunity to stay."

The companies that hire these workers, called H-1B's for the visa that lets them work for six years while seeking green cards, say much the same. From Microsoft to Intel, from Goldman Sachs to Merrill Lynch, from Deloitte Consulting to Ernst & Young, H-1B's are being hired by the planeload to fill a gap in computer skills, especially at higher levels, because Americans have been cool to the computer science and engineering education that foreign students embrace.

The H-1B visa program has its champions. High-tech superstars like Bill Gates, Andy Grove and Scott McNealy have lobbied Congress to expand it. And holders of H-1B's, besides many faceless programmers, have included Linus Torvalds, 31, the Finnish inventor of the Linux operating system, a software rival to Microsoft's Windows, who recently traded his visa for a green card.

But as the program has grown, so have its problems — as even its backers acknowledge.

Both a guest worker program and a road to a green card, the H-1B visa system has become a lightning rod of controversy over immigration policy. High-tech companies say the program is so riddled with bureaucratic delays that they have had to hire whole staffs to keep everything straight. The period for getting green cards now stretches for years, keeping the lives of H-1B's — and the plans of corporations — up in the air. After investing in and training an H- 1B employee for up to six years, a company may well see him sent packing on the next airplane out.

Moreover, under pressure from organized labor, Congress enacted complicated rules making it hard for corporations to promote H-1B workers or reward them with more challenging assignments.

The government isn't happy, either. Three agencies — the Labor and State Departments and the Immigration and Naturalization Service — administer the program, leading to regulatory gridlock and, according to a blistering report from the General Accounting Office, a breakdown in federal oversight.

As a result, nearly everyone involved with the program — supporters and detractors — complains about its flaws, often using words like "disaster" and "train wreck" as descriptions.

"The H-1B system needs to work for everybody and now it works for no one," said Jenifer Eisen Verdery, manager of education and work- force policy at Intel, the fifth-largest employer of H-1B's. "It doesn't work for the immigrant who has it. It doesn't work for the employers who hire them. It doesn't work for agencies that run it."

The H-1B program has its roots in temporary visa programs begun in the 1950's. But it took off in the 1980's and, again, in the late 1990's, as high- tech industries blossomed.

Late last year, with hefty campaign contributions and a lobbying juggernaut, employers persuaded Congress to increase the number of H-1B visas granted annually to 195,000. And estimates show that the total number of H-1B's here could reach a high of 710,000 over the next three years. Compared with a national work force of 140 million, that number is minuscule. But it is a sizable and growing minority in information technology, where up to 20 percent of the five million high-tech workers are foreign-born, with about half of those coming from the H-1B program. It is too early to tell what impact, if any, the current economic downturn will have on the numbers.

High-tech companies say they have no choice but to hire H-1B's. "Of course, we make every effort to find skills within U.S. workers," said Zoanne Hennigan, director of immigration at Intel, which hires H-1B's as software, network and component design engineers. "But when there is a skill shortage, H-1B has been absolutely instrumental to making sure our business goals are met. The H-1B program is critical to the success of our company."

Such talk, however, holds little sway with organized labor and American-born computer programmers who have thrown obstacles in the program's way for the last decade. They contend that the program is just a way for high-tech companies, which are largely not unionized, to get programmers on the cheap, hold them captive in jobs where they have little voice over working conditions and jettison them when they are no longer needed.

These groups have been among the most vocal in pointing out H-1B abuses — cases of underpayment, fraud and exploitation of a vulnerable, compliant work force. But while waving the banner for worker protection, organized labor has succeeded only in convincing Congress to enact measures that have made the system more byzantine — and unintentionally made it more open to potential abuse. For example, the paperwork required of high-tech companies to show that they have not replaced American citizens with H-1B's has become so onerous that, as a practical matter, it makes it difficult for H1-B's to change jobs.

"There isn't anything I like about the program," said Paul E. Almeida, president of the Department of Professional Employees at the A.F.L.- C.I.O. "It looks to me like it is just used to suppress wages. These employers don't want to invest in workers if they don't have to. This opens the door to low-wage workers."

Some American programmers, who have started Web sites opposed to H-1B, share this fervor. One well-known site, created by John Miano, head of the Programmers Guild, a trade group, features banner headlines like "Slave Trade Still Alive in the U.S."

"Most H-1B's are blithering incompetents," said Mr. Miano, adding that he has worked alongside H-1B's and has had to correct their mistakes. "They are unbelievably bad. They are not highly skilled, it's laughable. This is not a program for the best and the brightest. Anyone could be packaged by a lawyer and get an H-1B."

Whether a shortage of high-tech workers truly exists — statistics are inconclusive — H-1B visa holders are largely highly educated, government reports show. Many are educated at India's well-established engineering schools and, increasingly, at American universities.

Almost 98 percent of them have bachelor's degrees or higher, and 41.5 percent have master's degrees or higher. The jobs generally pay $45,000 to $150,000 — versus a more typical $6,000 for similar jobs in India, the biggest source of supply. (While the vast majority of H-1B's are in high-tech industries, a small number of the visas are issued for teachers, medical personnel, artists, fashion models and others.)

About one-quarter of high-tech H- 1B's were already here before getting their visas, typically attending American universities on student visas. Government data from 1998, the most recent available, shows that 35 percent of all high-tech master's degrees at American universities went to foreign nationals, as did about half of all high-tech doctorates.

In Silicon Valley, many companies recruit these foreign students — many of whom would otherwise have to leave — right after graduation. Corporations also send recruiters to India, find workers through Internet job postings or bring them here from previous projects overseas. And some companies, both in high technology and on Wall Street, hire H- 1B's from consulting firms working as subcontractors on specific technical projects.

"The H-1B program takes the crθme de la crθme," said Sheela Murthy, an immigration lawyer in Owings Mills, Md., and a native of India. "These are not people who are coming here to clean toilets. Many of them have master's degrees and attended top-notch universities. They are coming with a dream and a desire to do something with their lives."

Yet in accepting the visas, high- tech workers often walk into a nightmare. The visa allows workers and their families to stay here for six years, but the lag in getting green cards has grown to four, five or six years. As a result, thousands of H-1B holders, many of whom filed for green cards immediately upon receiving their H-1B's, are bumping against that six-year limit. Some may receive one-year extensions, but others may be forced to leave.

Employers are equally anxious. "An employer has found a person and wants them to stay, and what then, after six years you have to let them go?" said Theresa Cardinal Brown, associate director of the American Immigration Lawyers Association.

The wait for green cards results not only from delays at the immigration service, which now has 900,000 people in its green-card backlog, but also from supply-and-demand imbalances. At a time when the United States is admitting up to 195,000 new H-1B's annually, there are only 140,000 employment-based green cards available annually for H-1B's — and their spouses, who are usually admitted on a different visa, an H-4.

There are few specific criteria for obtaining a green card — an employer must simply certify that the applicant has needed skills, and applicants must not have criminal records. The I.N.S. keeps no statistics on the number of H-1B's who eventually get green cards.

The squeeze is tightest for citizens of India and China, who represent 57 percent of all H-1B's. Until recently, those two nations were each allotted 9,800 green cards, the same number set aside for citizens of any other country — for instance, Iceland or Belgium. Late last year, Congress lifted those quotas, allowing for the transfer of unused allocations from small countries to larger ones. But regulations to put the changed law into effect are still in the works.

"The H-1B program is mismanaged," said B. Lindsay Lowell, an immigration specialist at Georgetown University. "People don't think through the connections between the temporary visa program and permanent residency, and it leaves people in these hazily defined roles. There is backlog on backlog. We are increasing the numbers willy-nilly in a system that cannot process the paperwork, and it is a disaster."

By contrast, other countries, particularly Canada, are actively wooing these same workers. Starting in 1998, Canada began to speed up its processing of high-tech workers, allowing them to gain permanent residency in a matter of months if they score enough points on a ranking that considers their education and the needs of the country. Australia and New Zealand have adopted similar changes, and England, Ireland, Germany and Austria are relaxing their rules, too.

The I.N.S. is aware of the competition: "Canada has made it a national policy to increase their market share of high-tech workers," said Jacquelyn Bednarz, a special policy assistant at the I.N.S. "They are courting them with attractive ads. They are welcoming them and aggressively pursuing them."

For H-1B's in the United States, the protracted process has practical consequences: They must pay taxes, including Social Security, with no assurance of ever receiving the future benefits. Their spouses are not allowed to work. They raise children as Americans, even though they may, one day, have to go to a country that is foreign to them.

Because the visa is issued for a specific job, many H1-B's fear that they will hurt their chances of getting green cards if they try to switch employers, despite new rules allowing them to do that. As a result, until they get their green cards, many H- 1B's remain tied to their first employers.

"The bond between me and my employer is stronger than between me and my wife," said Murali Krishna, who works in Silicon Valley. "Break the umbilical cord and let me come and work for who I want to and negotiate what I can get. That way employers can't exploit me. If you want to be legal, you cannot be ambitious and grow."

Similarly, as a practical matter, it is impossible for H-1B's to become high-tech entrepreneurs, no matter how much brain power and drive they may have, because they would lose their green-card sponsors. "I have great business ideas, but I cannot start a company," said Mr. Sethi, one of those dining at the Delhi Darbar restaurant. "The environment in the U.S. makes you think about becoming an entrepreneur. But this process cuts you down."

Many H-1B's say they live in a constant fear of being deported, should they lose their jobs. The I.N.S. has said it plans to be lenient in the current high-tech downturn, but if an H-1B worker is out of work for more than 10 days, he is "out of status" and can be told to leave immediately. While the I.N.S. has had no reports of deportations recently, serious life decisions, like buying a home and car, having children, and firming up a career, are made more difficult by such uncertainty.

Consider S. Samuels, an H-1B computer programmer who spoke on condition that his first name not be used. He came to the United States to get an M.B.A., after graduating from India's top engineering school, the Indian Institute of Technology. That was more than five years ago. Now, with a pregnant wife and one child who knows only of life here, he is worried.

"If a citizen or a green-card holder loses their job, they lose time or money," Mr. Samuels said. "For us, we can lose our whole life."

Moreover, the lengthy green-card process makes H-1B's much more vulnerable to abuse and exploitation, like underpayment or a practice called "benching," in which H-1B's working for computer consulting firms are not paid for time spent waiting between assignments. Many of these consulting firms, also called "body shops," act as middlemen, hiring H-1B's and sending them on temporary assignments for Fortune 500 companies.

While reports of "body shop" abuse are common among H-1B's, it is hard to come up with hard evidence, since workers fear being sent back to their home country if they challenge their employer. But some have.

Earlier this month, in response to a suit filed by an H1-B worker, a California superior court ordered a Silicon Valley consulting firm, Compubahn, to drop a restrictive noncompete clause requiring H-1B's to pay the firm $25,000 if they quit. The firm is appealing. H-1B's have complained in computer chat rooms about this practice elsewhere.

Fraud in obtaining visas has also been found, including one tragic case in Berkeley, Calif., in which three Indian girls were brought in on H-1B visas for sexual purposes. The case came to light in November 1999 after one of the three, a 17-year-old pregnant girl, died of carbon monoxide poisoning in the rented apartment the girls shared. Last month, the landlord, Lakireddy Reddy, 63, a native of India worth more than $50 million, pleaded guilty in federal court in Oakland, as did two of his relatives. His two sons have also been charged in the case, in which the group is accused of fraudulently bringing Indian nationals to the United States for cheap labor and sex.

Beyond the headlines, it is difficult to determine how much abuse has occurred. By most accounts, it is a small but troubling aspect of the program. In the 2000 fiscal year, the Department of Labor received 140 complaints from H-1B workers and ordered back wages of $1.6 million to 339 people. But the statistics may understate the problem, because H-1B workers' dependence on their employers may make them reticent. "There is a huge disincentive for H-1B's to complain," said a labor department enforcement official. "They are very unwilling to come to us."

One advocate of a speedier green- card process is Mr. Torvalds, the inventor of the Linux computer operating system, who received his green card five months ago. Mr. Torvalds, who lives in Silicon Valley and is chief scientist at the Transmeta Corporation, which sponsored him for a green card, was luckier than most — he came from Finland, a country with no waiting list.

Yet even he faced the same difficulties as many other H-1B's. He paid cash for his home to avoid problems in getting a mortgage; he was put in the "problem queue" at United States Customs whenever returning from overseas trips, adding hours to his journey; and it took him more than nine months to get a California driver's license because of the need for immigration paperwork.

"People who end up coming on the program are pretty much at the mercy of the system," Mr. Torvalds said in an interview by e-mail. "That makes people nervous. It can cause total disruption in your life if the six- year clock runs out and you have to go back to a life you've long since left behind. That uncertainty is the nasty kind.

"Right now," he added, "the whole process is nothing but bureaucracy, with nobody driving it, and nobody really responsible."

On the front lines of many of these problems are employers, who pay $1,000 for the visa, an additional $3,500 to $5,000 in legal fees and untold dollars in employee time to hire H-1B's. Under pressure from organized labor, Congress enacted a cap in 1990 to limit the number of H- 1B visas. And, in the mid-1990's, labor pressed Congress to require that all H-1B employers file a "labor condition application" with the Labor Department to protect American workers from being displaced.

The paperwork for this application has grown; the regulations for it now run to 150 pages. At a minimum, an employer must show he has advertised the job to the local work force, is not paying an H-1B any more or any less than comparable workers, is not using H-1B's as strikebreakers and has sought to hire an American citizen first. As a result, the hiring of an H-1B can take months.

One Wall Street firm has employees who are designated to process H- 1B's, including counseling for the bosses of H-1B workers to understand the complications. "They have no idea of the intricacies of the process," said a representative of the firm, which asked not to be named. "And explaining it can last up to a couple of hours."

This mountain of paperwork also discourages companies from promoting H-1B workers or transferring them to another job site.

"One of the major problems is that an employee is locked into a post," said Sandra J. Boyd, a lobbyist for the National Association of Manufacturers, a trade group. "If they want to move up the ladder, all this paperwork has to start again."

Some employers, especially those in small companies, have even adopted a no-H-1B policy. A search of popular Internet high-tech employment sites like finds dozens of solicitations for software engineers with the following designation: "U.S. citizens and green-card holders only." Calls to recruiters placing these ads resulted in the same responses — that many employers do not want to face the costs, paperwork or delays that come with hiring an H-1B.

"A lot of companies want someone right away," said one recruiter, who spoke on condition of anonymity. "Time kills these deals."

So does money. Last December, Congress increased H-1B visa fees from $500 to $1,000, to pay for government-sponsored job training programs for high-tech workers. In the current fiscal year, the Department of Labor estimates that it will receive $180 million for these training programs and $213 million next year.

But will this money go toward training United States citizens to take the highly-skilled jobs now filled by H-1B's? It is hard to say. The training program is still in its infancy. So far, a large portion of the money is going into basic programs to train disadvantaged youths, single parents and the unemployed in entry-level computer jobs — jobs not filled by H-1B's, but largely by American workers.

-- Martin Thompson (, May 02, 2001

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