In a message dated 6/14/08 3:51:31 A.M. Central Daylight Time, News@JobDestruction.info writes:

<<<<< JOB DESTRUCTION NEWSLETTER  No. 1878 -- 6/14/2008 >>>>>

Thibodeau's article is excellent, and it allows comments. I was very
surprised to see that the AFL-CIO publicly opposes the Optional Practical
Training (OPT) extension.

To find out more about the courageous attorneys who filed the lawsuit
against the DHS click this link. If you want to help them go to the web
page that lets you make a tax-deductible donation.

Immigration Reform Law Institute (IRLI)
http://www.irli.org/


A total of 839 public comments were received before the deadline. Most
comments were in support of the extension (booo!) and there were many who
thought the extension was too restrictive (booo*10!). For reasons that are
tough to explain, American workers and immigration organizations were, for
the most part, silent (booo*1000!).

You can read the comments by going to this link:

http://www.regulations.gov/fdmspublic/component/main?main=DocketDetail&d
=ICEB-2008-0002

If that doesn't work, go to their primary link and put "ICEB-2008-0002"
without quotes in the search engine. Then click the link to
ICEB-2008-0002-0001.

http://www.regulations.gov


The AFL-CIO comment is #726 and can be read by clicking this link:
http://www.regulations.gov/fdmspublic/component/main?main=DocumentDetail&o
=090000648061ac23

For a formatted version of the document click the WORD attachment. The
entire document is worthy of reading but these are my two favorite
passages.

This one describes why the OPT extension is a de facto H-1B increase.

   By extending the OPT period and work authorization period, the
   interim final rule turns a student visa program into a labor market
   program, and essentially lifts the cap that Congress has placed on
   the H1-B program. The DHS has no legal authority to do that.



H-1B protections are a joke. OPT is far worse and this is why.

   In addition, the interim final rule allows employers to completely
   bypass the protections for workers (both domestic workers and
   foreign workers) that Congress built into the H-1B program. 

The AFL-CIO exaggerated the protections that American workers have against
discrimination, but their main point is the most important. Bottom line is
this -- if you think H-1B is bad, just wait until you lose your job to an
OPT!


+++++++++++++++++++++++++++++++++++++++++++++++++++

http://www.computerworld.com/action/article.do?command=viewArticleBasic&ar
ticleId=9098018

AFL-CIO says student visa extension hurts tech wages

Patrick Thibodeau
June 13, 2008 (Computerworld) WASHINGTON -- The Bush administration's
decision to allow foreign students to work in the U.S. for up to 29 months
before getting an H-1B visa faces opposition from the AFL-CIO. The largest
labor organization in the U.S. labeled the move a backdoor H-1B cap
increase that could lower wages for U.S. tech workers, according to
comments about the rule change made available this week by the government.

The U.S. Department of Homeland Security (DHS) made the "emergency" rule
change earlier this year to deal with the limits imposed by the 85,000 slot
H-1B cap. The government received 163,000 applications this year for those
visas. What the DHS did was extend the Optional Practical Training (OPT)
provision that previously allowed students to work after graduation for one
year on their student visa. Although the change is a done deal under the
agency's "emergency" rule-making provisions, the federal government still
had to seek comments.

Ana Avendano, director of the AFL-CIO's immigrant worker program, wrote, in
comments posted Thursday on Regulations.gov, that "by extending the OPT
period and work authorization period, the interim final rule turns a
student visa program into a labor market program, and essentially lifts the
cap that Congress has placed on the H-1B program."

Moreover, Avendano said the rule change "allows employers to completely
bypass" any of the protections in the H-1B program that prevent employers,
for instance, from using foreign workers to break a strike. Moreover,
students working on OPT won't have to be paid the prevailing wage as
required under the H-1B program. An OPT employee could, theoretically, work
for minimum wage, she wrote.

"Given that DHS's own estimates are that tens of thousands of OPT workers
will soon be in the market, this is certain to exert downward pressure on
wages and other working conditions," wrote Avendano.

Opposition groups, including the Programmers Guild, are seeking a temporary
injunction in U.S. District Court in Newark, N.J., against the rule change.
They are also arguing that the decision to extend the OPT time period
encourages some employers to advertise specifically for recent graduates,
helping to skew the market against U.S. tech workers. In court papers, they
included ads from online job sites Dice and Monster from employers
encouraging OPT workers to apply.

By contrast, groups and institutions backing the OPT extension said that
the rule change is too restrictive because it limits the degrees it applies
to and excludes some IT training programs. In particular, they cited its
requirement that U.S. employers participate in E-Verify, the government's
electronic verification program for immigrants.

Mark Hallett, director of international student and scholar services at
Colorado State University, called the E-Verify requirement a "deal killer"
because most employers aren't participating in the verification program.

"This requirement will virtually extinguish all hope for students wishing
to avail themselves of the OPT extension benefit because most employers do
not plan to voluntarily join E-Verify," wrote Hallett in a letter, one of
dozens posted Thursday.

The Securities Industry and Financial Markets Association voiced a similar
concern. "Less than 1% of U.S. employers are currently enrolled in
E-Verify, so the vast majority of employers wishing to retain or hire" an
OTP graduate "will not already be enrolled in the program," wrote David
Strongin, managing director of the association.

E-Verify remains voluntary, but there are concerns about the accuracy of
the verification process, the potential for error and the system's ability
to handle large numbers of employers.

Although the AFL-CIO opposes the rule, the largest business group in the
U.S., the Chamber of Commerce, does not. Although it had issues with some
of the provisions of the rule, including the E-Verify requirement, Randel
K. Johnson, vice president of labor immigration and employee benefits, and
several others who signed the letter, wrote: "The Chamber believes that
attracting the world's most talented people to our colleges and
universities, and then allowing them to stay for some time to work and be
trained by U.S. employers, is paramount to our nation's competitiveness in
the global economy."

+++++++++++++++++++++++++++++++++++++++++++++++++++

http://www.regulations.gov/fdmspublic/component/main?main=DocumentDetail&o
=090000648061ac23


Office of Policy
U.S. Immigration and Customs Enforcement
Department of Homeland Security
425 I Street, N.W.
Room 7257
Washington, DC 20536

June 9, 2008

By electronic submission: http://www.regulations.gov

Re: Comments on Interim Final Rule,
       DHS No. ICEB-2008-0002; ICE No. 2124-08
       RIN 1653-AA56   

Dear Sir or Madam:

The American Federation of Labor and Congress of Industrial Organizations
("AFL-CIO"), a voluntary federation of 56 national and international labor
organizations representing some 10.5 million working men and women,
respectfully submits these comments to the Department of Homeland Security
("DHS") on the Proposed Rule published at 73 Fed.Reg. 18944 (April 8,
2008).

The AFL-CIO opposes extending the maximum period of optional practical
training (OPT) from 12 months to 29 months for F-1 students who have
completed a science, technology, engineering, or mathematics (STEM) degree.
We also oppose extending work authorization for students with pending H-1B
Petitions. 

Congress created the F-1 visa classification to allow individuals who wish
to enter the United States solely and temporarily to pursue a full course
of study in an academic program.  The visa category is not an employment
category, and Congress did not intend it to be an employment visa.

By extending the OPT period and work authorization period, the interim
final rule turns a student visa program into a labor market program, and
essentially lifts the cap that Congress has placed on the H1-B program.
The DHS has no legal authority to do that.

In addition, the interim final rule allows employers to completely bypass
the protections for workers (both domestic workers and foreign workers)
that Congress built into the H-1B program.  Employers who hire students in
OPT are not subject to any of the requirements to which H-1B employers are
subject.  An employer who wishes to employ an H-1B worker must first file a
Labor Condition Application ("LCA") with the United States Department of
Labor (DOL), which contains certain information concerning wages to be paid
and other matters. See section 212(n) of the Act, 8 U.S.C. § 1182(n)
(2000 & Supp. IV 2004) (describing the LCA that is filed with the
Department of Labor); United States v. Ramirez, supra; Venkatraman v. REI
Systems, Inc., supra; 8 C F.R. § 214.2(h)(1)(ii)(B)(1) (2007); 20 C.F.R.
§ 655.700 (2007) (Department of Labor regulation describing provisions
governing H-1B visas and requirements for obtaining a certified LCA).

An employer who files an H-1B petition for a computer programmer, for
example, must file an LCA with the DOL, and must attest, among other
things, that the foreign worker is being hired in the absence of a strike
or lockout.  Congress included this provision to prevent employers from
using foreign workers to break a strike.  An employer who hires an F-1
student into the very same job is not required to file an LCA, nor is it
required to make any attestations.  Thus, the rule permits an employer  to
hire a temporary foreign STEM worker during a strike or lock-out, which
contravenes Congressional intent. 

Importantly, OPT employers are not required to pay a prevailing wage.  Thus
an employer will be have the ability to hire a STEM temporary foreign
worker to whom the employer would have to pay the prevailing wage if it
hired the worker under the H1B program, for minimum wage!   Given that DHS'
own estimates are that tens of thousands of OPT workers will soon be in the
market, this is certain to exert downward pressure on wages and other
working conditions.

Congress has also established a mechanism through the DOL to enforce the
LCA conditions, including a mechanism for workers to file complaints
against an H-1B employer who may be violating the provisions of the H-1B
program.  See  8 U.S.C. § 1182(n)(2)(G)(ii).  Thus, a worker employed as
a computer programmer with an H-1B visa, for example, has the ability to
file a complaint with the DOL if the employer violates the H-1B program by,
for example, supplying incorrect or false information in the LCA; failing
to pay the worker the higher of the prevailing wage or actual wage; making
illegal deductions from wages (for petition processing, etc.); failing to
comply with "no strike/lockout" requirement, or retaliating or
discriminating against the worker for filing a complaint or cooperating
with an investigation.  If  that very same worker is employed in the OPT,
she has no recourse if she suffers an illegal deduction in wages, or is the
victim of retaliation or discrimination.  The interim final rule denies the
same workers that Cngress sought to protect, these vital protections.

The H-1B program has had an extremely negative impact on the wages and
benefits of workers in the high tech industry and badly is in need of
repair and reform.  See U.S. Government Accountability Office, Report to
Congressional Requesters, "H-1B Visa Program: Labor Could Improve Its
Oversight and Increase Information Sharing with Homeland Security." June
2006.  Substantially growing the number of temporary foreign workers-in a
much more vulnerable position than H1B workers-in STEM occupations is
clearly not the answer.     

The DHS has provided no reasonable explanation for this rule.  It cites
repeatedly to concerns about the US ability to compete in the global
economy.  Those concerns are outside the purview of the DHS whose mission
is to:  "(A) prevent terrorist attacks within the United States; (B) reduce
the vulnerability of the United States to terrorism; and (C) minimize the
damage, and assist in the recovery, from terrorist attacks that do occur
within the United States."  Homeland Security Act of 2002. 

Finally, the agency unlawfully invoked the "good cause" exemption to the
notice and comment requirement of Administrative Procedure Act (APA) 5
U.S.C. § 553(b).  The "good cause" exception, which allows an agency to
dispense with notice  and comment when it finds that those procedures are
"impracticable, unnecessary, or contrary to the public interest,"  See 5
U.S.C. § 553(b)(B), is to be "narrowly construed and only reluctantly
countenanced." Tennessee Gas Pipeline Co. v. FERC, 297 U.S. App. D.C. 141,
969 F.2d 1141, 1144 (D.C. Cir. 1992) (quoting New Jersey v. EPA, 200 U.S.
App. D.C. 174, 626 F.2d 1038, 1045 (D.C. Cir. 1980)). The exception is not
an "escape clause"; its use "should be limited to emergency situations."
American Fed'n of Gov't Employees v. Block, 210 U.S. App. D.C. 336, 655
F.2d 1153, 1156 (D.C. Cir. 1981). 

     
"Impracticable" means a situation in which the due and required execution
of the agency functions would be unavoidably prevented by its undertaking
public rule-making proceedings. "Unnecessary" means unnecessary so far as
the public is concerned, as would be the case if a minor or merely
technical amendment in which the public is not particularly interested were
involved. "Public interest" supplements the terms "impracticable" or
"unnecessary"; it requires that public rule-making procedures shall not
prevent an agency from operating and that, on the other hand, lack of
public interest in rule-making warrants an agency to dispense with public
procedure.


S. Rep. No. 752, 79th Cong., 1st Sess. 14 (1945), reprinted in Senate
Judiciary Committee, 79th Cong., 2d Sess., Administrative Procedure Act
Legislative History 185, 200 (1946), quoted in Kollett, 619 F.2d at 145.

It cannot be said in this case that notice and comment were "unnecessary"
or "contrary to the public interest,"  or "impracticable" as these terms
are defined.  The final interim rule is clearly not a minor or technical
amendment: it will allow employers to hire tens of thousands of workers in
the high tech field under conditions that undermine labor standards for all
workers.  Nor would  public rule-making proceedings here prevent execution
of the DHS functions.  The agency is well able to continue to protect the
nations' security while giving the public the opportunity to comment on the
impact that this rule would have on labor standards.  The public interest
in rule making is strong.  "The purpose of prior notice and comment is to
afford persons an opportunity to influence agency action in the formative
stage, before implementation, when the agency is more likely to be
receptive to argument." Kollett v. Harris, 619 F.2d 134, 145 (1st Cir.
1980).  What's at stake here are the wages and other working conditions for
an entire industry.  The public deserved the opportunity to comment and
attempt to influence agency action when it still mattered-that is, before
the agency implemented the rule. 

For these reasons, the AFL-CIO urges DHS to withdraw the interim final
rule.  

Sincerely,



Ana Avendaño
Director, Immigrant Worker Program

- - - - - - - - - - - - - - - - - - - - - - - - - - -
Newsletter Homepage:
http://www.JobDestruction.com/shameh1b/JobDestructionNews.htm

Support this Newsletter and www.JobDestruction.com by donating:
www.zazona.com/Donations.htm

To Be removed from this mailing list, reply to this
email with UNSUbSCRIBE in the subject window
- - - - - - - - - - - - - - - - - - - - - - - - - - - -