February 19, 1999 Deputy Administrator Assistant Secretary
Gentlemen: The Institute of Electrical and Electronics Engineers - United States of America (IEEE-USA) submits the following comments on the notice of proposed rulemaking published by the Department of Labor in the January 5, 1999 issue of the Federal Register. The purpose of the notice is to obtain public comment on issues to be addressed in regulations implementing changes in the Immigration and Nationality Act resulting from enactment by the Congress of the American Competitiveness and Workforce Improvement Act (Public Law 105-277) in October 1998. Statement of Interest, Concerns and Prior Recommendations IEEE is a transnational technical and professional society made up of more than 350,000 electrical, electronics and computer engineers in 100 countries throughout the world. IEEE-USA promotes the professional careers and technology policy interests of the 230,000 IEEE members who live and work in the United States. Membership in IEEE-USA is comprised solely of individual professionals who, by virtue of their education, experience and employment, are vitally concerned about laws and regulations affecting opportunities to apply their specialized knowledge to the solution of technological problems in the public and private sectors of the nation’s economy. Electrical, electronics and computer engineers include individuals who qualify for permanent admission to the United States under three of the five current, employment-based immigrant admissions programs: EB-1 (for individuals with extraordinary ability; outstanding professors and researchers and certain multi-national executves); EB-2 (for professionals with advanced degrees or exceptional ability); and EB-3 (for professionals with baccalaureate degrees and skilled workers with at least two years of training or experience). Our members also clearly qualify as members of a specialty occupation as defined in Section 101(a) of the Act for the purpose of establishing qualifications for admission as non-immigrants under the H-1B temporary visa program. Accordingly, the proposed regulations, regulatory approaches, alternatives and issues addressed in the Department’s notice are of considerable interest and concern to IEEE-USA. IEEE-USA is on record in testimony and written statements before the 104th and 105th Congresses as a supporter of the view expressed in the 1995 report of the United States. Commission on Immigration Reform that a properly regulated system of permanent and temporary admissions is needed to enhance the benefits of legal immigration and protect against potential harms. With respect to employment-based admissions, we share the commission’s view that the nation’s interest in helping U.S. employers to succeed in an increasingly competitive global economy must be balanced by an equally compelling national interest in providing appropriate safeguards for job opportunities, wages and working conditions for U.S. workers, including citizens, permanent residents and foreign nationals who have been legally admitted to work temporarily in the United States. During the 104th Congress, IEEE-USA urged the Congress to strengthen existing worker safeguards by imposing modified labor condition application (LCA) requirements on most employment-based admissions, both permanent and temporary. Instead of the individual labor certification procedures that currently condition the permanent admission of professionals with advanced degrees, professionals with baccalaureate degrees and skilled workers, we recommended that a modified labor condition application procedure be used to regulate both permanent and temporary admissions. We argued that employers with a legitimate need for access to foreign workers with skills that are in short supply in the United States would benefit from expedited admissions procedures. U.S. workers, including foreign nationals on temporary visas, would benefit from stronger worker safeguards, more effective enforcement and stiffer penalties for abuses of the admissions requirements. IEEE-USA recommended that all employers who wish to hire foreign professionals be required to apply for authorization to do so with the U.S. Department of Labor. On their applications, petitioning employers should have to show proof of their need for foreign workers and to attest that: 1) they have tried and failed, using industry-wide recuitment procedures, to hire appropriately qualified U.S. workers; 2) that they will pay foreign workers prevailing labor market compensation, including wages and benefits; and 3) that they have not laid off and will not lay-off comparably qualified U.S. workers for 90 days before and 90 days after filing for an authorization to hire foreign workers. To deter abuses involving job contractors or outplacement firms, we recommended that their clients or customers also be required to subscribe to a no-layoff attestation. In addition, we recommended that petitioning employers be required to post copies of their labor condition applications at the location(s) where foreign workers will be employed and pay an appropriate application fee to help pay for improved program administration and enforcement. IEEE-USA also recommended that responsibility for administration and enforcement of all employment-based admissions programs be centralized in the U.S. Department of Labor and that the Department be authorized to conduct routine audits and investigations to verify that petitioning employers comply with their attestations. In addition, the agency should be directed to impose heavy fines on employers for non-compliance and ban those who are found guilty of serious violations from participation in the H-1B program. Key elements in a balanced regulatory framework -- one that would expedite U.S. employer access to foreign workers with skills found to be in short supply in the United States while safeguarding job opportunities, wages and working conditions for U.S. workers -- ought to include active recruitment, prevailing wage, no-layoff and notification requirements for all petitioning employers; appropriate provisions for filing complaints by aggrieved individuals and interested parties; enhanced investigative authority for the Department of Labor and stiffer penalties for non-compliance and abuse of employment-based admissions programs. During the 105th Congress, IEEE-USA challenged industry’s contention that the nation faces shortages of skilled professionals that threaten to undermine the remarkable growth that has taken place in the information technology sector and the entire U.S. economy in recent years. Although demand for information technology workers, including engineers and computer scientists, systems analysts, data base administrators and programmers, is strong and is likely to continue to grow in the years immediately ahead, we disagreed that admissions ceilings should be raised without additional safeguards for U.S. workers. We were extremely disappointed, therefore, when the Congressional leadership and the Clinton Administration elected to disregard a bipartisan vote by the House Judiciary Committee to condition a temporary increase in H-1B admissions ceilings on enactment of worker recruitment and retention requirements for most employers of H-1B workers. As enacted, the American Competitiveness and Workforce Improvement Act authorizes a substantial three year increase in the annual admission of H-1B visa holders but limits the applicability of new recruitment and retention (non-displacement) attestations to a handful of "H-1B dependent" employers and others found to have made willful misrepresentations of material facts on their labor condition applications or willfully violated other provisions of the law within a five year period. On a more positive note, ACWIA includes new no-benching, same wage and benefits and whistleblower protection provisions that add needed safeguards for employees, former employees and applicants for employment who disclose information about potential violations or cooperate in the investigation or adjudication of such violations. By establishing a new $500 per application fee on petitioning employers from business and industry, ACWIA also helps to ensure that at least part of the cost of administering and enforcing the law will be borne by major beneficiaries of the H-1B program. Another positive feature and one that will contribute to the development of U.S. workers is that part of the new application fee will be used to fund scholarships in math, engineering and computer science for low-income students and retraining for displaced workers. Unfortunately, institutions of higher education, related or affiliated non-profit entities and non-profit and governmental research organizations, many of whom are increasingly dependent on non-citizens to perform teaching and/or research functions, will not have to pay this fee or the same prevailing wage as the one paid by businesses and other private sector employers. We are also pleased that ACWIA augments the investigative authority of the Department of Labor and increases civil and monetary penalties on employers for failure to meet attestation requirements, misrepresentations of material facts on labor condition applications and willful violations of other provisions of the H-1B law. Regulatory Issues of Primary Concern More specific concerns about the new law and related aspects of the proposed rulemaking fall into eight major categories. These include: 1) identification of H-1B dependent employers, 2) the applicability of non-displacement attestations to secondary employers, 3) evidence of good faith efforts to recruit and hire U.S. workers, 4) treatment of U.S. and H-1B workers with respect to compensation and benefits, 5) worker notification requirements, 6) investigations in the absence of complaints, 7) fragmentation of responsibility for administration and enforcement and 8) related studies of age discrimination in the information technology sector and future labor market needs for workers with high technology skills. 1. Identification of H-1B Dependent Employers Although the law is quite specific about what constitutes an H-1B dependent employer and the proposed regulations go into considerable detail about related evidentiary requirements, the law does not require employers who wish to hire H-1B workers to affirmatively declare that they are or are not H-1B dependent or that they have or have not previously been found to have committed a willful failure or misrepresentation with respect to any H-1B requirement. To assist in the initial identification of H-1B dependent employers and willful violators, and to facilitate program administration and enforcement, IEEE-USA recommends that the prototype labor condition application (ETA Form 9035) be amended to provide boxes to enable all applicants to affirmatively declare that they are or are not H-1B dependent and that they have or have not previously been found to have committed a willful violation or misrepresentation with respect to any H-1B requirement. Spokespersons representing individual employers as well as employer organizations have said in public discussions of the law and the subject regulations that they would have no objection to such a regulatory requirement. 2. Applicability of Non-Displacement Attestations to Secondary Employers ACWIA requires H-1B dependent employers and willful violators who wish to hire H-1B workers to attest that they have not displaced and will not displaces U.S. workers (from jobs that are essentially the equivalent of the jobs for which H-1B workers are sought) 90 days before or after filing an H-1B visa application. The applicability of these non-displacement attestations to so-called secondary employers is particularly important in view of documented abuses of the H-1B program in the early 1990’s in which American companies were found to have laid off U.S. workers before or after contracting with outplacement firms to supply them with cheaper H-1B workers. ACWIA’s secondary displacement prohibition requires that H-1B dependent employers and willful violators not place H-1B workers at another employer’s work-site unless the H-1B employer has inquired if the other (secondary) employer has displaced or intends to displace similarly qualified U.S. workers before or after H-1B workers are placed at the secondary employer’s work-site(s). In order to assure that the purposes of the statute are achieved, the Department of Labor proposes to develop regulatory language to require that covered H-1B employers exercise due diligence by making proactive efforts to inquire about prohibited displacements by secondary employers. The Department suggests that an H-1B employers may demonstrate compliance in one or more ways. It may secure a written assurance from a secondary employer that it has not and does not intend to displace a similarly-employed U.S. worker 90 days before and 90 days after the placement of an H-1B worker. It may prepare a written note upon receipt of an oral assurance from a secondary employer. Or it may include a secondary displacement clause in a contract between the covered H-1B employer and a secondary employer. Unfortunately, the new law states that if a secondary employer has displaced a qualified U.S. worker from an equivalent position during the applicable time period, the attesting employer will be held liable and subject to penalty as if it had violated the attestation. IEEE-USA believes that the secondary employment provisions of the law and attendant regulatory proposals place unfair burdens of responsibility for discovery and liability on covered employers, many of whom may be small business staffing or outplacement firms that supply technical and health services workers to client employers under contract, employee leasing and other temporary help arrangements. We think that it is patently unfair to hold an attesting H-1B dependent employer solely liable and subject to penalty if a secondary employer has implemented a prohibited layoff if the attesting employer has made a good faith effort to determine if a prospective client has engaged or intends to engage in such an activity. We recommend that covered employers include an appropriate non-displacement clause in contracts for services they execute with secondary employers and that both parties be held jointly and severably liable for non-compliance. 3. Recruitment Attestations: Active Solicitation and Screening Requirements ACWIA requires that H-1B dependent employers (and employers found by DoL to have committed willful H-1B violations) take good faith steps to recruit U.S. workers, using procedures that meet industry-wide standards and offering compensation that is at least as great as that required to be offered to H-1B workers, for the jobs for which H-1B workers are being sought. IEEE-USA agrees with the Department of Labor that this new recruitment attestation "must be read, interpreted and applied to mean that covered employers promise – and agree to be held accountable – that they have recruited for any job for which they file a labor condition application. Such a requirement allows employers to use normal recruiting practices which are common among similar employers in their industry and which other employers have used to successfully recruit U.S. workers. We agree with the Department that good faith recruitment efforts should ordinarily involve one or more recognized recruitment options including: 1) advertising in national or regional editions of national newspapers or in national professional journals or trade publications; 2) Internet or Intranet-based job posting services; 3) public or private employment or job referral agencies; 4) outreach or recruiting at educational institutions; 5) job fairs sponsored by public and private organizations at the national, state, and local levels; and 6) solicitation of U.S. workers within an employer’s own organization. We also agree that good faith steps must involve some combination of active and passive postings of information, for reasonable periods of time, in forums and formats that are readily accessible to the types of workers being recruited and commonly used by employers who ordinarily compete for such workers. IEEE-USA recommends that covered employers be specifically directed to use internet and intranet-based electronic communications technologies as an alternative to posting "hard copy" notices of job openings at conspicuous locations at work-sites and other places of employment. With respect to other requirements for good-faith recruiting as mandated by ACWIA, IEEE-USA agrees with the Department that employers must maintain a fair and level playing field for all job applicants and be able to demonstrate that they have not skewed their recruitment and selection processes in ways that disadvantage U.S. workers. 4. Non-discriminatory Wage and Benefit Requirements Current law (prior to enactment of ACWIA) requires that all employers who wish to hire H-1B workers must attest that they will pay H-1B workers prevailing wages or actual wages, whichever is greater, and that they will provide working conditions that will not adversely affect the working conditions of similarly employed U.S. workers. ACWIA adds an important new requirement that all employers of H-1B workers must also offer benefits to H-1B workers on the same basis and under the same terms as the benefits offered to similarly employed U.S. workers. IEEE-USA agrees with the proposed Labor Department interpretation that the new "same basis/same terms" requirement is intended to ensure that employers do not discriminate against U.S. or H-1B workers with respect to eligibility for conventional benefits (ie., health, life, disability and other insurance plans or retirement and other savings programs) or for performance incentives, such as cash bonuses and non-cash compensation, such as profit sharing and stock options. Such an interpretation will help to implement the letter and the spirit of the law that the wages and working conditions of U.S. workers not be adversely affected through employment of H-1B workers at wages and fringe benefit levels less than those provided to U.S. workers. At the same time, it will help to reduce the likelihood that employers will discriminate against H-1B workers by offering them less generous benefits than their U.S. workers. 5. Workplace Notification Provisions: Hard Copy and Electronic Postings When Congress established the H-1B program in 1990, it intended that the regulatory framework for investigations of possible violations be complaint driven. Absolutely critical to such a regulatory framework is the IMNACT requirement that employers who intend to hire H-1B workers post hard-copy notices of their intent in conspicuous locations at work-sites where H-1B workers will be employed. Current regulations require employers to inform U.S. workers who could be adversely affected by their employer’s decision to hire H-1B workers in one of two ways: 1) by notifying the bargaining representative of workers in occupations in which H-1B workers will be employed, or 2) by physically posting copies of their labor condition applications 30 days before such applications are filed in conspicuous locations at work-sites where H-1B workers will be employed. In addition, a petitioning employer must also provide a copy of the applicable labor condition application to each H-1B worker it employs. Without access to information contained on the labor condition application (job title, proposed rate of pay, period of intended employment, intended work locations, etc.), U.S. and H-1B workers would be unaware of their employer’s attestations and would be unable to file complaints in situations that might warrant such action. IEEE-USA has no objection to the Department’s proposal to use electronic communications as an alternative to posting hard copy notices at work-sites where H-1B workers will be employed as long as such communications are readily available and accessible to all affected U.S. and foreign workers. 6. Investigations in the Absence of Complaints ACWIA adds to the Department’s investigative authority by 1) specifically authorizing the Department to conduct "random" investigations of employers found to have willfully violated their obligations under the H-1B program and 2) providing for the investigation of possible violations based on information from sources other than aggrieved parties. ACWIA stipulates that the Department may investigate an employer without a complaint if it receives "specific, credible information" from a source likely to have knowledge of the employer’s employment practices and conditions or it’s compliance with the attestations on its labor condition application. Such information must provide "reasonable cause" to believe that a violation of the employer’s labor condition application requirements (except the posting requirement) has been committed. The focus of such investigations will be on whether an employer has willfully failed to meet its statutory obligations, has engaged in a pattern or practice of such failure or where its failure is "substantial" and affects multiple employees. Although these statutory provisions are time limited (they will expire on September 30, 2001) and restrictively constructed, IEEE-USA views them as an important enhancement of the Department’s authority that should significantly improve its ability to investigate alleged violations of the H-1B program. We look forward to review and comment on separate regulations on these matters in the very near future. We would recommend that the subject regulations not be written or interpreted so restrictively as to effectively prevent the Department from exercising its new investigative authority. 7. Fragmentation of Responsibility for Program Administration and Enforcement Rather than centralizing responsibility for H-1B program administration and enforcement in the Department of Labor, as IEEE-USA would have preferred, ACWIA contributes to further fragmentation of such responsibilities among various agencies of government, including the Departments of Labor, Justice and State. While we recognize the need for some separation of managerial, investigative and adjudicative functions, we are concerned that the degree of separation mandated by the new law will significantly reduce the collective ability of the responsible agencies to administer and enforce its provisions in a timely and effective manner. In its determination to protect employers from unwarranted interference by the Department of Labor in personnel recruitment, hiring and utilization decisions, we fear that Congress has enacted legislation that may effectively deprive U.S. workers of needed safeguards for jobs, compensation and working conditions by scattering administrative and enforcement responsibilities among too many agencies. While our concerns relate more to the statutory language of ACWIA than to the subject rulemaking IEEE-USA requests that its comments on these matters be included in the official rulemaking record. 8. Studies of Age Discrimination and Future Labor Market Needs Significantly, ACWIA also provides for the conduct of two important studies that are intended to provide empirical evidence of a kind that was seriously lacking in the recent Congressional debate over the need to increase H-1B visa ceilings. Section 417 of the new law instructs the Director of the National Science Foundation to contract with the National Academy of Sciences to assess the status of older workers in the information technology field. Section 418 directs the National Science Foundation to conduct a study to assess the labor market needs for workers with high technology skills during the next ten years. The results of both studies are to be reported to the Congress by October 1, 2000. In the absence of any requirement that the National Science Foundation issue a formal request for proposals to conduct these studies or to publish any information about the data collection and analysis methods to be used, IEEE-USA wishes to formally recommend that provisions be made to ensure that representatives from interested parties, including organizations representing employees as well as employers, are able to participate in the research design, analysis of data and formulation of findings and recommendations in both of these critically important studies. IEEE-USA appreciates the opportunity to submit these comments and recommendations on the notice of proposed rulemaking. Sincerely, Paul J. Kostek The Institute of Electrical and Electronics
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