September 13, 2004

Dear Senator, 

We understand that the Senate Judiciary Committee may shortly mark-up a substitute bill for S. 1635. The 25 national unions of our organization, representing some 4 million professional and technical workers, strongly oppose this legislation. We view this bill as a proposal that will displace even more American workers with an even larger influx of foreign guest workers. Its secondary impact will be to facilitate even greater off-shore outsourcing of U.S. jobs. In short, it is an anti-worker, pro-offshoring piece of legislation that should be rejected.  

This legislation began as a nominal effort to reform abuses within the L-1 visa program but has morphed into a bill that will blow a huge hole in the current 65,000 H-1B visa cap. While purporting to “reform” these visa programs, it camouflages the real underlying purpose: To usher into the U. S. tens of thousands of new foreign guest workers at a time when hundreds of thousands of our professional and technical workers are already unemployed, many victimized by the consequences of off-shore outsourcing.  

This would be accomplished by adding still another open ended, permanent H-1B exemption—this one for foreign graduates of U.S. institutions with masters or PhD degrees. As you may be aware, any foreign guest worker applying for a visa who will be employed in higher education or by non-profit and government research institutions is already exempted from the H-1B cap. From 2000 through 2004 over 110,000 foreign guest workers came in under this loophole—an average of about 27,500 per year.  

Committee staff has estimated that the likely impact of the newest exemption--which has not been the subject of any Senate hearings--will be 30,000 to 40,000 new guest workers coming in per year. This then would be on top of the 27,500 already exempted, those coming in under the 65,000 cap and the 115,000 H-1Bs (average per year from 2000-03) who have been renewing their three year H-1B visa for a second three year term. In other words, when all is said and done, nearly 250,000 foreign guest workers annually would be allowed in. And this doesn’t include the tens of thousands of other guest workers that gain work status through L-1, TN and other trade visas, O, P and other specialized visas as well as foreign students on E visas who can work for up to a year after graduation. 

We believe, however, that the staff estimates drastically understate the likely effect of the proposed new exemption. Given the number of foreign graduate students currently in country--267,876 for 2003-03, current foreign undergraduates who would now be encouraged to seek graduate degrees-- 586,323 for 2002-03--as an access point to obtaining a work visa as well as to the hundreds of thousands of those foreign workers who have advanced degrees, its impact will be severe. In effect, we believe that this exemption has the potential to render the 65,000 cap absolutely meaningless. 

The new iteration of S. 1635 also purports to enhance enforcement against visa fraud. We see the bill going in the exact opposite direction. Apparently the proposal will allow employers to be classified as “in compliance” if so-called “technical” or “procedural” violations are “corrected” within in 10 days.  In other words this provision gives employers a free pass to break the law until they are caught—then allows them to “make good” once they are detected.  The provision does not define “technical” or “procedural” violations.  Considering how few violations have ever been found under the law and the volumes of government reports about ineffective and lax enforcement regarding the H-1B program, there is no rational need for a new enforcement escape hatch. 

Finally, we offer our perspective of how programs like H-1B and L-1 directly contribute to the off-shore outsourcing of U.S. jobs which, in the last year, has hit the American economy and its professional- technical workers with hurricane force.  

Under L-1 as well as H-1B, corporations are allowed to bring in tens of thousands of foreign workers to work in the U.S at bargain basement rates for periods of five, six, seven years or longer. Once these so-called “temporary” workers gain the technical skills and core competencies, any or all of the work that is technically feasible to off-shore is then exported. In short, the L-1 and H-1B provisions of U.S. immigration policy have created a tech transfer pipeline that is exporting U.S. jobs, capital and technology abroad. Compounding this outrage is that often, qualified American workers searching for work are ignored as companies instead hire lower paid foreign professionals. In a number of cases, U.S. workers have actually been are fired, replaced by foreign workers who they have been forced to train to take their jobs!  

We also feel compelled to observe that, from the perspective of the millions professional and technical workers that we represent, an overlooked issue in this debate over guest worker visa policies is that there is in fact no coherent national policy regarding professional guest workers. Whether it is L-1, H-1B, TN or the new Singapore/Chile visas or other such programs, each operates under different standards, limitations and rules of accountability where they exist. Given the adverse impact that these programs are having on U.S professionals--many of whom are either unemployed or underemployed--as well as the non-immigrant workers themselves, it is high time for Congress to develop a more comprehensive, coordinated federal policy in this regard.  

What is particularly baffling about these programs is that none of them connect to the realities of current U.S. labor market conditions. There is no nexus between the unusually high current rate of unemployment among professional and technical workers and the fact that the guest worker population now numbers close to 1 million according to some estimates.  As a result, these guest worker programs in effect force well qualified, American professionals to compete against foreign workers here in the U.S. for domestic jobs.  In our opinion, there is something seriously wrong with that picture.  

Congress failure to address both comprehensive immigration and guest worker reform--including implementation of a green card system that works to protect the rights of U.S. and foreign workers alike--has resulted in multiple aberrations and systemic malfunctions in this critical policy area. In addition to the displacement of American workers, L-1 and H-1B guest workers are often--as you know--underpaid and exploited. Without sufficient worker protections and government oversight, we believe that these abuses will now extend to an even larger population of foreign students and workers under the proposed H-1B exemption that is before you.  

This legislation fails to address these critical issues. It fails to enact the necessary reforms in the L-1 and H-1B programs and instead makes a bad situation worse by expanding the H-1B debacle to the detriment of both U.S. and foreign workers. Professional and technical workers in this nation have made enormous personal sacrifices to gain the education and training necessary to compete for the knowledge jobs in the so-called new American economy. They deserve better than to be victimized by programs like L-1 and H-1B. At a time when so many American professionals are out of work, Congress should be about the business of reforming not expanding them. The legislation before you fails that test too and it should be defeated.                                                                                      

Sincerely,

                                                                                                Paul E. Almeida

                                                                                                President

Unions Affiliated with the Department for Professional Employees,

AFL-CIO

 SEQ CHAPTER \h \r 1Actors’ Equity Association, American Federation of Government Employees, American Federation of Musicians, American Federation of School Administrators, American Federation of State, County and Municipal Employees, American Federation of Teachers, American Federation of Television and Radio Artists, American Guild of  Musical Artists, Communications Workers of America (including The Newspaper Guild, National Association of Broadcast Employees and Technicians, International Union of Electrical Workers), Federation of Professional Athletes, International Association of Fire Fighters, International Association of Machinists & Aerospace Workers, International Alliance of Theatrical and Stage Employees, International Brotherhood of Electrical Workers,  International Federation of Professional and Technical Engineers, Office and Professional Employees International Union, Plate Printers, Die Stampers and Engravers Union of N. America, Screen Actors Guild, Seafarers International Union, Service Employees International Union, United American Nurses, United Food & Commercial Workers International Union (including the Retail, Wholesale and Department Store Union), United Steelworkers of America, Writers Guild of America, East