MR KIM BERRY PROGRAMMERS GUILD Sloan West Coast

MR. KIM BERRY PROGRAMMERS GUILD Sloan West Coast Program on Science and Engineering Workers The H-1 B Program and Labor Certification: Attestation and PERM Friday, January 18, 2008

H-1 b Influx is independent from labor market – 2000 -2004 record H-1 b influx Tech workforce's ranks shrinking By Deborah Lohse and Mark Schwanhausser – San Jose Mercury News Friday October 8, 2004 Battered by the technology bust, half of the Californians working in tech in 2000 have left the field, a new landmark study of 1 million workers shows. Nearly one-fourth of the tech workers have taken nontechnology jobs that often pay less, according to the study by the Sphere Institute, a Bay Area public policy research firm. Another 28 percent have fallen off California's job rolls altogether. www. mercurynews. com/mld/mercurynews/business/9866921. htm “MARKET-BASED CAP” WILL NOT WORK

H-1 b Labor Certification Process is a “Due Process Sham” 20 CFR 655. 740 (1) Certification on labor condition application. … the regional Certifying Officer shall certify the labor condition application unless it falls within one of [these categories]: (i) When the Form ETA 9035 or 9035 E is not properly completed. (ii) When the Form ETA 9035 or ETA 9035 E contains obvious inaccuracies. What purpose does “posting at the job-site” serve? On what basis could U. S. workers challenge a posted LCA? – IT NEEDS TO BE ON A PUBLIC WEBSITE IN REAL TIME

Department of Labor does not try to match U. S. workers for LCA jobs Most Labor Condition Applications (LCAs) are filed Electronically and thus are immediately in the DOL Database. DOL does not release this list of 200, 000 U. S. jobs (new and renewal) until after the jobs have been filled by foreign workers several months later. These U. S. jobs are never opened to U. S. workers! CONTRARY TO DOL MISSION: The Department of Labor fosters and promotes the welfare of the job seekers, wage earners, and retirees of the United States by improving their working conditions, advancing their opportunities for profitable employment. http: //www. dol. gov/opa/aboutdol/mission. htm

H-1 b salary does not indicate a labor shortage Congresswoman Lofgren’s document acknowledges: p. 13: “Newly arriving H-1 B nonimmigrants in computerrelated occupations had median annual salaries of $50, 000 in FY 2005, down from $55, 000 in FY 2001. ” http: //migration. ucdavis. edu/wcpsew/files/CRS_5=23=07 pdf. pdf Adjusted for inflation, $55, 000 in 2001 = $60, 652 in 2005, thus over a 20% real drop in wages http: //data. bls. gov/cgi-bin/cpicalc. pl

Most H-1 b fill average jobs at below average pay San Francisco Region LCAs granted in FY 2004 www. programmersguild. org/sfh 1 b/

The largest H-1 b users admit to underpaying their H-1 b workers Tata Consultancy Services (TCS) Vice President Phiroz Vandrevala: "Our wage per employee is 20 -25 per cent less than US wages for a similar employee. Typically, for a TCS employee with five years experience, the annual cost to the company is $60, 000 -70, 000, while a local American employee might cost $80, 000 -100, 000. “ http: //programmersguild. blogspot. com/2007/05/india-now-denies-their-prior-admission. html

The Majority of LCAs are filed at DOL SKILL LEVEL ONE DOL LEVEL I Beginning level employees who have a basic understanding of the occupation through education or experience. They perform routine or moderately complex tasks that require limited exercise of judgement… www. flcdatacenter. com/skill. aspx Does that sound like "BEST AND BRIGHTEST”? Detailed info about how prevailing wage is set is here: www. prweb. com/releases/2006/7/prweb 407549. htm

Examples of Level One “Prevailing Wage” Area Code: 41940 Area Title: SAN JOSE-SUNNYVALE-SANTA CLARA, CA OES/SOC Code: 27 -3022 OES/SOC Title: Reporters and Correspondents Level 1 Wage: $14. 34/hour - $29, 827/year www. flcdatacenter. com/Oes. Quick. Results. aspx? area=41940&code=27 -3022. 00&year=8&source=1 Area Code: 40900 Area Title: SACRAMENTO--ARDEN-ARCADE--ROSEVILLE, CA OES/SOC Code: 15 -1031 OES/SOC Title: Computer Software Engineers, Applications Level 1 Wage: $24. 06/hour - $50, 045/year www. flcdatacenter. com/Oes. Quick. Results. aspx? area=40900&code=15 -1031. 00&year=8&source=1

H-1 Bs are hired even when qualified Americans are available My personal observation: In every case of an H-1 b being hired that I've witnessed in the past four years, there were plenty of qualified American applicants available to fill the job. Generally the H-1 b was hired because they had more of some arbitrary skill requirement (e. g. , 3 years of Oracle) or their bill rate was lower.

Americans are being displaced by H-1 b’s lack of U. S. worker recruitment Testimonials collected from www. Hire. Americans. First. org Exult My husband lost his computer programming job when his company imported cheaper programmers from India. Lucent Technologies I was displaced from my contract position in August 2001 while the H 1 B guest workers were retained. PG&E (San Francisco) My company was actively hiring Indian contractors through Tata and Infosys at the time I was let go. Cognizant The company is phasing out American consultants, and later this year, American employees of that company.

Testimonials – page 2 MMO and Snap. On Replaced by H-1 B. Spouse replaced by guest worker too. General Electric Healthcare I am now retired from GE Healtcare, Milwaukee. I was forced into retirement at age 60, and eventually replaced by H-1 B workers. Several American engineers have been replaced at GE by H-1 B and green card workers. AT&T/TATA In October 2001 our office was notified that come Jan 1, 2002 the office would be closed. Within days of the closing, foreign nations were being bused in to the vacated center. The University of Chicago Laid off, lost valuable benefits while H-1 b workers retained. Not interviewed for 81 positions while at same time U. S. Labor Dept. of Labor approved 208 foreign nationals to work at same employer

Testimonials – page 3 Lincoln Financial Applied for an Actuate Developer job at company and was turned down. However, they did hire a colleague of mine for the same position who was an H-1 B worker and who I had trained and mentored at a previous employer. Mastercard In 2001, lost contract as company moved away from Americans to H-1 B contractors Mc. Donalds, Discover, and others The issue I am facing is L-1 s now more than H-1 b visas. L-1 are being used to bring a foreign workers over for training and then the company eliminates higher cost employees and consultants. Phillips Semiconductor In 1998 I was replaced by an H-1 b from India while working at Phillips Semiconductor in Mountain View California.

Testimonials – page 4 Cognizant Technologies Indian Consulting firms set up phony interviews with the objective of gaining salary information. PERM FAKE ADS I applied for many positions listed in ads only to find out that the position listed were mostly ads to justify H-1 B positions of people working for companies whose H-1 B positions were being renewed. IBS US (El Dorado Hills, California) H-1 B workers never complained about working weekends without pay, as they were faced with losing their Visa if they lost their job. Laid off in 2001 while H-1 B holders were retained. IBM After 30 years as an IT professional, I cannot get so much as an interview.

Testimonials – page 5 Anthem Blue Cross California As a programmer at Anthem Blue Cross, I was among many who were coerced into taking early retirement in lieu of losing our retirement benefits. This made room for more H-1 b visa programmers from India. Fiserv Company laid off all American programmers and kept foreigners H-1 Bs and other visa holders. Wi. Pro & Info. Sys I just finished my M. S. Degree in Computer Science. I continue to see U. S. Citizen's jobs outsourced or offshored or both to India and China. My current company employs Wipro & Info. Sys. They are laying off U. S. workers and hiring "contractors" from these two companies to do their job in the U. S. (under visa program) or in India.

WHY ARE AMERICANS BEING DISPLACED BY H-1 B AND L-1 WORKERS? BECAUSE IT IS LEGAL There is no requirement to first consider qualified U. S. worker applicants

U. S. companies object to first considering qualified American applicants [Robert Hoffman, VP for government and public affairs at Oracle and spokesman for Compete America] says that a requirement for U. S. companies to try to hire American workers first doesn't make sense. "To focus on that is missing the whole point of the program, " he says. Hoffman says that tech companies face a shortage of skilled workers so they should have the latitude to hire talented employees, wherever they're from. http: //www. businessweek. com/bwdaily/dnflash/content/mar 2007/db 20070326_868213_page_2. htm Business Week 3/27/2007: Immigration Reform: Americans First?

Indian Consulting Firms object to first considering qualified American applicants A requirement to hire Americans first would present particular problems for Indian outsourcing companies that operate in the U. S. Wipro and Infosys Technologies are among the most active users of H-1 B visas, typically to bring Indian employees to work in their U. S. operations. "That kind of proposal may not work, " says Sridhar Ramasubbu, chief financial officer for the Americas and Europe at Wipro. "Companies need to go and get talent wherever it is available. " (NOTE: Only a small fraction of their workforce consists of U. S. workers. ) http: //www. businessweek. com/bwdaily/dnflash/content/mar 2007/db 20070326_868213_page_2. htm Business Week 3/27/2007: Immigration Reform: Americans First?

Industry opposes $1, 200 annual fee to fund $15, 000 scholarships In response to a Senate Bill that would have charged $1, 200 per year for each H-1 b worker - to be used to provide $15, 000 annual scholarships for American college students, Oracle VPCompete. America Robert Hoffman said: "We're open to paying a little more if that's what's needed, " Hoffman said. "But to more than triple the fee is ludicrous. " After pressure from Compete America and others, the Senate killed the fee increase. http: //money. cnn. com/newsfeeds/articles/newstex/IBD-0001 -21601556. htm They claim there is a shortage of Americans studying STEM, but then they kill a nominal fee that would have provided substantial scholarships?

Intel Folsom has unreasonable Job Requirements that exclude U. S. applicants INTEL position 484041 (posted in 2005): Minimum seven years developing web applications? Not many people have been consistently developing web apps in Windows prior to 1998. Perhaps 90% of otherwise qualified applicants are being filtered out by these arbitrary "qualifications": Qualifications: You should possess a Master or a Bachelor of Science degree in Computer Engineering or Computer Science with minimum five to seven years of application development experience in Windows*-based web applications. You must have recent IT-related work experience and familiarity with IT business systems and processes. Additional qualifications include: -Must have experience in. NET* as a core competency as well as web development skills including ASP*, Component Object Model (COM), Extensible Markup Language (XML) and/or XSL, and SQL* server. Advanced scripting skills in Perl, and Windows* Scripting; Good understanding of relational database design principles, data modeling and database programming; Advanced knowledge in developing SQL* databases and of SQL* Enterprise Manager ; Software engineering skills (requirements gathering, analysis, design, programming and/or development, testing, troubleshooting and debugging skills) Strong Project Management skills, process and detail oriented and documentation skills -http: //www. programmersguild. org/docs/intel_hiring_software_engineers_or_not. html

Intel sponsors H-1 b workers while laying off American Employees More cuts at Intel's Folsom Campus Tuesday, September 12, 2006 http: //sacramento. bizjournals. com/sacramento/stories/2006/09/11/daily 13. html Another 61 employees at Intel Corp. 's Folsom campus will receive layoff notices between now and Sept. 24, bringing the total number of jobs cut here this summer to 191. Earlier this summer in Folsom, 53 information-technology and humanresources employees received layoff notices and 77 management jobs were cut. Of the 191 layoffs, only the management jobs were immediately cut. All other employees are being "redeployed, " meaning they get a chance to look for another job within the company. If they don't find one within two months, their jobs will be terminated.

Intel LCAs for Software Engineers FY 2005

Intel Claims that they are “not hiring Software Engineers” in 2005 In May 2005 Intel acknowledges that many U. S. Software Engineers are out of jobs, claims they are not hiring, but then files dozens of LCAs for Software Engineers.

SYSTEM IS BACKWARD: Hire First - Recruit Later While there is no requirement to consider U. S. applicants when hiring an H-1 b, when they convert to green card the position must be advertised to demonstrate that “no qualified Americans are available. ” This is the PERM recruiting of Cohen & Grigsby on You. Tube stating that “Our objective is to NOT find a qualified and interested U. S. worker” and proceeded to explain the means of excluding even highly qualified Americans in order to get the PERM application approved. http: //www. programmersguild. org/docs/youtube_media. html

Programmers Guild H-1 b Reforms • True prevailing wage of at least what average Americans earn within the same job classifications. • H-1 b and L-1 LCAs only approved after the employer has conducted good faith, transparent recruitment, and was unable to find any qualified U. S. candidates, at any price. • H-1 b only granted to U. S. business entities with as direct hires - not to consulting firms (Indian or otherwise) to be re -shopped against American job seekers. • H-1 b to include a $1, 200 annual fee that would be used to fund $15, 000 scholarships for American college students in STEM programs - consistent with legislation that Senator Sanders has introduced twice. www. programmersguild. org