The Most Generous Nation in the World... at Giving Jobs Away

By Rob Sanchez
Published in The Social Contract
Volume 20, Number 2 (Winter 2009-2010)
Issue theme: "Timeout! The case for a moratorium on legal immigration."
http://www.thesocialcontract.com/artman2/publish/tsc_20_2/tsc_20_2_sanchez.shtml




The citizens of the United States are very generous when it comes to sharing their job markets with the rest of the world. America’s corporations enthusiastically offshore entire industries to foreign countries, while its government simultaneously welcomes foreign nationals that compete for jobs in a labor market that has increasing levels of joblessness, under-employment, and declining wages.

There is a cornucopia of visas for almost anyone in the world who wants to work in the U.S. Whether they are skilled, non-skilled, college educated, or craftsmen, the legal immigration system has a program to accommodate them. Approximately 5 million foreign nationals legally enter the U.S. per year that are authorized to work as temporary guest workers and another 500,000 are given employment based permanent resident green cards. In addition, about 1.2 million family members follow them to the U.S.

There are two broad categories of employment based (EB) visas that can be issued for the purpose of allowing aliens into the U.S. with authorization to work.

1. Green cards grant permanent residency status to aliens that enter the U.S. Their purpose is to fill jobs for employers who claim that American citizens can’t be found to do the job. Labor market testing is required to provide evidence that the employers made an effort to hire an American before they decided to sponsor an alien for a green card. Green cards provide a direct path to citizenship.

2. Nonimmigrant visas (NIV) are issued for a limited amount of time for temporary job positions, which is why they are often called “temporary guest workers”. Upon completion of their job the aliens are required to return to their country of origin. Most NIV programs provide a path to citizenship by offering aliens the opportunity to apply for a green card while they are employed in the U.S. NIV programs don’t have labor market tests but employers are expected to make a “good faith effort” to find an American first. Of course “good faith” means different things to different people, and for employers it means that they are not required to show a preference towards Americans — even if a qualified worker is found.

Besides labor market tests, there is another significant difference between a green card and an NIV — nonimmigrants can only stay in the U.S. as long as they hold the job they were hired to do. Effectively the visa is an indentured contract between the employer and the foreign worker. In contrast, green card holders can stay in the U.S. even if they lose their job.

The employment based visa programs are often described as an alphabet soup of options. You will discover why as you read this substantially comprehensive list of immigration programs.


Employment Based Green Cards (EB)

EB green cards are issued to allow foreign nationals to work in the U.S. and receive permanent residency. There are five main categories of these visas:

1. EB-1: Priority Workers. There is practically no delay in acquiring these visas if the alien can show he has extraordinary ability in science, business, arts, education, athletics, or entertainment. EB-1 visas are given top priority so they move to the front of the line for expeditious processing.

2. EB-2: Professionals with advanced degrees or exceptional ability. China and India have priority processing for these visas.

3. EB-3: Skilled and Professional Workers. Workers that have at least two years of training, no more than a bachelor’s degree, or sometimes even unskilled workers can get this one. Anyone can get an EB-3 if they have a job offer in the U.S.

4. EB-4: Religious workers such as ministers, church professionals, monks, and nuns can get this one. These visas can also be used by translators and interpreters that work for the armed forces — even if they have nothing to do with religion!

5. EB-5: Investors who invest $1 million in a new business. Sometimes alien investors can get EB-5 classification with half that amount.

Ostensibly, American workers are protected from unscrupulous employers who want to use foreign labor to undercut them because labor certification is required for visa approval. The regulation requires that employers attest that they looked for qualified U.S. workers (EB-1, EB-4, and EB-5 are exempt) before they decided to sponsor an alien for a green card. There is a huge flaw in the market test — it doesn’t require that employers actually have to hire an American worker if one is found! The labor market test is a charade that is rife with loopholes. The market test ritual begins and ends with the placement of job-ads posted in local newspapers so that the employer can show they made an effort to hire domestically. Immigration lawyer Joel Stewart made it very clear how easy it is to shun Americans in favor of aliens:

When employers feel the need to legalize aliens, it may be due to a shortage of suitable U.S. workers, but even in a depressed economy, Employers who favor aliens have an arsenal of legal means to reject all U.S. workers who apply.

Legal Rejection of U.S. Workers, by Joel Stewart, Esq., April 24, 2000, ILW.com

Classes and seminars are held by immigration lawyers on how to use the loopholes in regulations such as the market test. The most infamous of those seminars occurred in 2007 when a YouTube video showed immigration attorney Lawrence Lebowitz explaining this goal to an audience:

Our goal is clearly not to find a qualified and interested U.S. worker, and that, in a sense, sounds funny, but it’s what we are trying to do here.

Lawrence Lebowitz, immigration seminar by Cohen & Grigsby, June 2007


B-1/B-2: Business and Tourist Visitors

B-1 visas are used for temporary business trips and typically to enter the U.S. to make investments, to purchase goods, or to conduct other temporary work on behalf of a non-U.S. employer. The visa has a term of one year with six-month extensions.Workers cannot be paid by a source inside the U.S. but they can be compensated by whoever is employing them as long as payments are deposited in banks outside the U.S. B-1 workers can transfer money back into the U.S. under international trade rules called “living allowances”. Since B-1 workers are not paid in the U.S., they don’t have to pay income taxes or FICA.

tsc_20_2_sanchez_table_1.gif


The B-2 visa is for tourists and visitors to the U.S. B-2 visas are granted for 6 months. Tourists from designated countries may enter the U.S. for up to 90 days without a visa. They can work for volunteer agencies or participate in conferences but can’t be paid in the U.S. (same as B-1).

The B visa is numerically the largest category of NIV and one of the least controlled. These two factors make it an easy visa program to defraud, and it has in fact been the subject of many immigration enforcement busts.


E-1/E-2: Investment Treaty

E-1/E-2 visas are for foreign nationals of a country with which the U.S. has a bilateral investment treaty or trade agreement. They come to the U.S. to direct and develop the operations of an enterprise in which they have invested or are in the process of investing substantial amounts of money.


E-3

Specialty occupations reserved for Australians only. Most of these visas are used by management and technical workers.


F-1: Vocational Students

The F-1 visa allows aliens to come to the U.S. as full-time academic or language students if they are enrolled in a program which leads to a degree or to a certificate. They may work in a part-time job on campus. They can also work off campus if they can show that it is economically necessary or if the job provides practical training in the student’s chosen field.

Optional Practical Training (OPT) work authorization can be granted to students on F-1 visas to work in the U.S. while attending our universities and even after they graduate. OPT internships are granted by the U.S. Citizenship and Immigration Service (USCIS) to allow the aliens to work for a university or for private employers. OPTs don’t need approval or review by the Department of Labor even though these students are working in jobs that are, in most cases, identical to the ones sought by American students who have increasing difficulties finding internships. OPTs are granted for 27 months and provide a pathway for H-1B visas in order to stay in the U.S. longer.


M-1: Academic Students

The M-1 visa is for vocational, technical, or nonacademic students such a shealth care technicians, machinists, dental hygienists, etc. They are eligible for OPT authorization.


H-1B: Specialty Workers and Fashion Models

H-1B visas are issued for specialty occupations and fashion models.The definition of specialty occupations is broad enough to include just about any job that requires a college degree or equivalent experience. More than half of the H-1B visas are used for scientists, engineers, computer programmers, and mathematicians. The remainder are mostly used by scientists, K-12 school teachers, nurses, physical therapists, accountants, and physicians.

H-1B visas have a term of three years and can be renewed for another three years. If the alien has applied for a green card he can get an extension on the seventh year, and can get extensions until the green card is approved. Used this way the H-1B provides a direct path to a green card.

The H-1B program limits the number of visas to a yearly maximum cap of 65,000 plus another 20,000 given to college grads with advanced degrees. Effectively the cap is 85,000. Exemptions from the cap are given to those who apply to extend their visa longer than three years, and in addition there are job categories that are exempt — college professors, university and government researchers, nonprofit organizations, and almost anyone working for the federal government.

No labor market test is necessary for H-1B but labor certification is. The two terms are often confused because EB green cards require both, but H-1B only requires certification by filing a Labor Condition Application (LCA). Protecting American workers from direct competition in the labor market is problematic with H-1B. The Department of Labor is rather blunt about worker displacement:

“...H-1B workers may be hired even when a qualified U.S. worker wants the job, and a U.S. worker can be displaced from the job in favor of the foreign worker.”

U.S. Department of Labor, Strategic Plan, Fiscal Years 2006–2011, p. 36


H-1B1

On July 31, 2003, the Senate approved the Singapore and Chile Free Trade Agreement. The FTA followed precedents set by NAFTA that include “embedded visas”. The SCFTA has a visa specific to those two countries called the H-1B1. It has a limit of 6,800 visas per year that are counted against the H-1B visa cap.


H-1A: Registered Nurse

H-1A visas are for aliens coming to perform services as a registered professional nurse. This category isn’t used much anymore because H-1B visas are favored more often for nurses and other types of medical professionals.


H-2A: Temporary Agricultural Workers

The H-2A visa is for persons who come to the U.S. to perform agricultural labor or services on a temporary or a seasonal basis.

The H-2A is a program with strict requirements to ensure laborers are treated humanely. It sets the wages that must be paid and it also requires that free and approved housing be provided. It even specifies the size of the windows and the density of the screens. Transportation is also reimbursed. Farms and ranches usually prefer illegal alien laborers for these jobs so that they don’t have to hassle with requirements that cost them money. H-2A has an unlimited yearly cap so it’s as close to the ideal of limitless cheap labor as an employer can get. The low rate of participation in the H-2A program (see table, page 102) suggests that the so-called shortage of farm laborers has more to do with cutting costs than a lack of foreign workers.


H-2B

The H-2B is used for skilled workers who are usually considered “blue collar”. The term “skilled workers” is loosely defined, which allows H-2B to be used for jobs such as hotel maids and lawn mower operators.


H-3: Temporary Trainees

H-3 visas are for aliens that come to the U.S. for on-the-job training provided by a U.S. employer. The purpose of the training should be to advance their career in their home country where they plan to return, and where similar training opportunities are unavailable.


I: Press and Media

The I visa is for foreign press, radio, film, or other foreign information media personnel. There is no yearly cap.


J-1: Exchange Visitors

The J-1 visa is used to come to the U.S. to participate in an approved exchange visitor program. Visitor programs can be sponsored by businesses, schools, and various organizations and institutions. Persons eligible include scholars, students, professors, research assistants, job trainees, au pairs, international visitors on cultural missions, and others.The J-1 visa can be used by students who choose to participate in degree and non-degree programs. The number of visas issued is unlimited.

Foreign students who come to the U.S. with J-1 nonimmigrant visas can be authorized to work if they are in the “Student and Exchange Visitor Program (SEVP)”, which means they are attending a school in the U.S. for education or vocational training.

Post-secondary students at colleges or universities with J-1 visas can get work authorization for jobs on-campus. They can also be employed at almost any kind of off-campus job if they claim that they are having an economic hardship. Of course being short of money probably describes about 99 percent of the student population, so it’s not difficult for them to get permission to work off-campus.

The term “student” is somewhat of a misnomer because it implies that they are attending a school in the United States. That’s not always the case however because “student” can be used as a global term for a person who attends a school located anywhere in the world. A program under the SEVP umbrella called “Summer Work/Travel (SWT)” allows foreigners who are attending schools in other countries to work in the U.S. for up to four months, which coincides with the amount of time students in other nations get for summer vacations.

All that is required for a foreign national to qualify for SWT is to show up at a U.S. consulate, fill out a few forms, and pay $35 for a J-1 visa. The odds of qualifying are very good for foreign applicants because the average interview is just 3 to 5 minutes, which is hardly enough time to thoroughly check backgrounds.

J-1 visas have several categories that can be used by aliens who are medical graduate students at U.S. schools and who want to stay in the U.S. for their residency, which can be for several years. The following subcategories give the medical students a waiver so that they don’t have to return to their home country in order to apply for an H-1B visa or a green card. The categories are:

Conrad 30 — up to 30 foreign doctors per state per year can get a waiver. The doctors are supposed to practice medicine in rural areas where shortages of doctors ostensibly exist; but in practice hospitals in the middle of Phoenix, Arizona and New York, N.Y. qualify as well as many others in urban areas.

Veterans Administration — there is no limit on foreign residency doctors.

Delta Region Authority — this area covers 252 counties and parishes in parts of eight southern states. There is no visa cap for foreign medical students who will do their residency in these areas.

Appalachian Region — this area follows the spine of the Appalachian Mountains from southern New York to northern Mississippi. There is no visa cap for foreign medical students who will do their residency in these areas.

The J-1 program is plagued by fraud and abuse. Its size, scope, and complexity make it a ripe target for defrauding the immigration system.


TN: Trade NAFTA

The North American Free Trade Agreement (NAFTA) visa, is available to Canadian and Mexican nationals who are engaged in professional level work. The Trade NAFTA (TN) visa is granted for one year and allows for one year extensions as long as the alien has employment. TN visas are usually approved as the alien crosses the border. The visa application is reviewed and approved by a border patrol agent who has received training as a labor specialist. The speedy review raises questions about efficacy of the process if someone wants to cheat the system. TN visas have no yearly cap.


L-1: Intra-company Transfers

L-1visas are used to transfer aliens to the U.S. to work for international firms which already employ the aliens outside of the U.S. There are two kinds of L-1 Visas. The L-1A Visa is intended for managerial level aliens to reside and work in the United States, and the L-1B is intended for technical workers such as engineers, computer programmers, etc. Spouses and children of L-1’s may enter the U.S. with L-2 visas.

It is important that the distinction between L-1As and L-1Bs be highlighted. L-1A applicants are considered priority workers that may apply for permanent residency green cards without a labor market test. As a priority worker, the L-1A employee can leap-frog the approval processes, which saves lots of time and money for the employer and reduces the odds that unqualified workers will be denied visas. L-1A becomes a very attractive option for those working for multinational corporations who wish to permanently reside in the U.S.


O-1: Extraordinary Ability

The O-1 visa is used for aliens who have extraordinary ability in the sciences,education, arts and entertainment, or business.A panel reviews O-1 applications in a process that is far more rigorous than for other visas. Evidence must be provided that the alien has received a major internationally recognized award such as a Nobel Prizeor that the alien has extraordinary ability. The O-1 visa is probably the only one of the nonimmigrant visas that is not used for cheap labor because it’s so tough to get approval, and it’s the only one that truly admits the “best and the brightest” into the U.S. An O-2 can be given to someone who accompanies the alien, for example, the coach of an athlete or the writer for a movie producer.


P: Athletes and Entertainers

P visas are used for aliens who perform as artists or entertainers. P-1 is used for internationally recognized performers, P-2 for entertainers in performance groups, and P-3 for coaches and teachers.


Q-1: International Cultural Exchange Program

The Q-1 visa is used for cultural exchange programs which have been designated for the purpose of providing practical training, employment, and the sharing of the history, culture and traditions of the country of the alien’s nationality.It’s very similar to the J-1 SEVP. Visas are for 15 months.


R-1: Religious Vocation or Occupation

R-1 visas are for aliens who have been members of a legitimate religious denomination for at least two years. They must have a job offer in the U.S. to work for an affiliate of that same religious organization. All manner of organized religions use them — they are particularly popular for members of the Catholic, Jewish, and Muslim faiths.

tsc_20_2_sanchez_table_2.gif


F-2, J-2, H-4, L-2, O-3, P-4, R-2: Family Visas

Spouses, parents, and unmarried children under 21 years of age can accompany F, J, H, L, M, O, P, and R visa holders to the U.S. Only the L-2 can get work authorization, but in some cases it’s possible to convert J-2 or H-4 visas into L-2 so the spouse can work. All of them are entitled to government services offered to citizens. If the married couple or one of their daughters births a child while they are in the U.S. that child becomes a jackpot baby that enables chain migration.

The U.S. invites enormous numbers of foreign workers into the country for a wide variety of jobs requiring almost all skill levels. In this age of globalism EB visas are being used to displace every type of American worker imaginable. The number of EB visas is somewhat disputed because government statistical data on immigration are confusing and contradictory. The following table gives a rough idea about how many employment based visas are granted per year. The data the government supplies are fragmented and unorganized, and to make things more difficult, various agencies gather and analyze the statistics in different ways. The following table pulls several databases together in an attempt to coherently compare visa programs.

tsc_20_2_sanchez_table_3.gif


Guest worker visas aren’t only a U.S. phenomenon, although other countries have far more restrictive policies. Listed below are a few notable examples from other countries. The similarities of visa programs in these different nations are no coincidence because world trade conferences and seminars are held to standardize visas and to harmonize immigration policies worldwide. These are examples of globalism in action as required by the WTO and GATS in Mode 4, a section of an international agreement which requires members to provide for the free movement of “natural persons” across borders.

tsc_20_2_sanchez_table_4.gif


India: India has an “employment visa (EV)” that is similar to our combined H visa program. The country issues very few of these visas in comparison to the large numbers of Indians that are allowed to come to the U.S. Most foreign workers that get EVs are specialists assisting in technology transfer and offshoring. The EV is initially issued for one year terms and can be extended every year as long as the job contract continues. Spouses and children can get coterminous visas. 


India also has a business visa (BV) which closely resembles our B-1. It’s valid for 6 months to one year. Long term business visas are allowed for selected countries that are offshoring industries to India or setting up joint ventures. U.S. citizens can qualify for a ten year visa and a select group of other nations can get five year visas. Business visa fraud is endemic in India. In 2009 violence erupted when an angry mob of jobless Indian nationalists in a village near Bokaro, Jharkhand attacked Chinese workers at a steel factory. Mobs in several other cities besieged local government offices to demand the deportation of the Chinese workers. The Chinese workers came immigrated illegally in complete violation of Indian visa guidelines. The Chinese should have applied for employment visas but they didn’t because most of them would have been denied. The Chinese knew they were not qualified for employment visas so they gamed the system by obtaining the much easier to get business visa. This is not unlike some of the B visa scandals that have occurred in the U.S. For example in 2003, Alabama auto workers and welders from Poland were found to be using B-1 visas instead of H-2B. The Chinese were able to get away with visa fraud because India was very lax in enforcing the rules (sound familiar?). In order to fix the problem India took the very draconian step of ordering every foreigner on business visas to go back to their home country to reapply for employer visas. Even Americans and Russians had to leave the country and reapply for visas. The Indian nationalists managed to boot the Chinese out of India because the government was afraid that violence would escalate. In the U.S. the Polish workers were awarded with asylum, jobs, and permanent residency.

China: Foreign workers can be employed on a temporary basis with the “Z visa” which is similar to our L-1. Most of the visas are limited to foreigners who are involved with joint ventures or in the offshoring of industries to China. The Z visa specifies that the foreigners must be part of the senior management or executive staff (exceptions can be made). China also has an investment visa similar to our E-1/E-2 program that allows immigration for anyone who invests at least $3 million in a Chinese business.

Australia: “Subclass 457” is that country’s equivalent to our H-1B visa but there is no yearly cap, and the rules on the types of workers that can qualify for visas are much looser. Subclass 457 is used by programmers, engineers, truck drivers, welders, and anyone else that claims they have a skill. Families can also get visas.

United Kingdom: The “Highly Skilled Migrant Program” (HSMP) is being phased out in favor of the new “Tier” visa program. Tier 1 has five different sub categories that are very similar to the U.S. EB green card system. The “Tier 2” visa program hasn’t been around long but it is causing a furor among British workers who feel they have been stiffed by cheap foreign labor. The Tier 2 is equivalent to the U.S. L-1 visa, which is also called an intra-company transfer. Both visas are almost identical in name, purpose, and the harmful consequences for its citizens. Almost 30,000 non-EU technology workers entered Britain in 2009 and the overwhelming majority coming from India.

Germany, Netherlands, Ireland, Sweden, France, Spain, Canada, New Zealand: These countries have significant guest worker visa programs to admit high tech workers. Most of their programs are temporary guest worker visas that resemble our H-1B.

European Union: At this moment in time there is not a common visa among European nations. The E.U. has been pushing the idea of a “Blue Card” which would function like a standardized universal H-1B visa and would provide a path to citizenship. So far the Blue Card is floundering because of vociferous opposition from organized labor and immigration control groups. Another sticking point is the unwillingness of the governments to standardize wages.


Conclusion

One of the most obvious ways to stop job erosion in the U.S. is to stop illegal immigration and to put severe limits on employment based visas. Beware of politicians that ask us to accept the Faustian bargain of Comprehensive Immigration Reform. Their claim is fallacious that CIR will solve the illegal immigration problem, but only if we expand guest worker visa programs. The following statement by Sen. McCain is not unique as many variations of it have been repeated throughout the years by political elitists who care more about increasing the supply of cheap labor than preserving the viability of the American middle class:

I believe we can pursue the security programs and at the same time set up a system where people can come here and work on a temporary basis. I think we can set up a program where amnesty is extended to a certain number of people who are eligible and at the same time make sure that we have some control over people who come in and out of this country.

Sen. John McCain (R-AZ), news conference, 2003

We must be careful not to be fooled by the Morton’s Fork (false choice) offered by McCain and other promoters of CIR, who ask us to accept more immigration by increasing the number of employment based worker visas and by giving amnesty to illegal aliens — in trade for a promise of more border enforcement. It’s not a fair deal because American workers lose jobs any time there are increases in immigration — it really doesn’t matter if the increase is due to legal or illegal immigration. The only thing that matters is how much our total population is allowed to grow by flooding the labor market with more immigrants. Increased immigration means the supply of workers goes up, demand goes down, labor arbitration forces wages to go down, and job opportunities for Americans dwindle. It’s a lose-lose deal for American wage earners.

There are two very obvious means to improve the employment situation in the United States: first we must stop illegal immigration, and second most of our employment based visa programs should either be severely restricted or abolished. Until both of these happen all proposals for Comprehensive Immigration Reform should be rejected — especially if they allow any type of amnesty or the expansion of guest worker visa programs. If unemployment ever reaches zero, and we are sure our borders are secure, then it might make sense to have a public dialogue about the merits of liberalizing the immigration system. 


Notes about data

The J-1 category shows the number of visas given. This number could be an overcount of how many are actually employed - not all J-1 students work.

The number of H-1B visas shown in the table is a severe undercount because it doesn't include all petitions approved - the count is only for new visas issued. Most of these are called "non-exempt" because they are subject to the yearly cap. To confuse matters, some of the "initial employment" petitions can be exempt from the cap, and others are considered changes of status instead of new visas by the State Department so they aren't counted. Differing approaches can radically skew data that shows how many aliens actually get approved for H-1B visas. For instance, consider 2003: 107,000 visas were approved towards the cap of 195,000, but a total of 217,340 petitions were issued. The large discrepancy is caused when a new petition (counted by the USCIS) may not require a new visa (counted by State Department). It's worth noting that in 2006 the yearly cap was reduced to 85,000 but the number of new visas actually increased from 107,000 to 135,000.

All the visa programs shown in the table have their own unique quirks so pinning down exact statistics is somewhat futile. In almost all cases but H-2B the number of aliens in the U.S. is additive as the yearly cap is reset at the beginning of the fiscal year.


References

Dept. of State: Non-immigrant visa issuances by visa class and by nationality

Dept. of State: Immigration Visa Statistics

Indian Consulate in San Francisco

Chinese Ministry

USCIS: H-1B Petitions Received and Approved in FY 2003

USCIS: Report on H-1B petitions

DHS: Persons Obtaining Legal Permanent Resident Status by Type and Major Class of Admission: Fiscal Years 1999 to 2008, Table 6

The Long March, With Chinese contracts come illegal Chinese workers, swamping the worksites, OutlookIndia, Nov 09, 2009

Cohen & Grigsby Seminar, Programmer’s Guild Video, 6/16/2007

The Blue Card Scare, By Rob Sanchez, December 2007

Legal Rejection of U.S. Workers, by Joel Stewart, Esq., April 24, 2000


About the author

Rob Sanchez keeps track of non-immigrant visa and offshoring developments at his website, www.ZaZona.com. He also publishes the Job Destruction Newsletter. To get on the free mailing list, send an e-mail to H1Bnews followed by @ ZaZona dot com.

Copyright 2007 The Social Contract Press, 445 E Mitchell Street, Petoskey, MI 49770; ISSN 1055-145X
(Article copyrights extend to the first date the article was published in The Social Contract)