Wednesday, September 29, 2010

Could the H1B work visa be unlawful?

U.S. Code Collection
Inadmissible aliens

(5) Labor certification and qualifications for certain immigrants
(A) Labor certification

(i) In general, any alien who seeks to enter the United States for the purpose of performing skilled or unskilled labor is inadmissible, unless the Secretary of Labor has determined and certified to the Secretary of State and the Attorney General that—

(I) there are not sufficient workers who are able, willing, qualified
(or equally qualified in the case of an alien described in clause (ii)) and available at the time of application for a visa and admission to the United States and at the place where the alien is to perform such skilled or unskilled labor, and

(II) the employment of such alien will not adversely affect the wages and working conditions of workers in the United States similarly employed.
(ii) Certain aliens subject to special rule For purposes of clause (i)

(I), an alien described in this clause is an alien who—
(I) is a member of the teaching profession, or
(II) has exceptional ability in the sciences or the arts.

Worth noting:

1) The exception in 1182 relies on the Specialty Occupations list. (Page 2)

Maybe the DOL needs to reexamine the "shortages" in each occupation with hard data.

2)  1182 has been watered down. The phrase "and at the place where the alien is to perform such skilled or unskilled labor" was added by lobbyists -- 1182 used to cover the entire United States.

3) The exception in 1182 was created specifically for the GATS agreement which is more stringent than the conditions in US law.  Again, under GATS, H-1B is a single term 3 year visa with no dual-intent provisions and no extensions.  Stricter layoff conditions etc.

Maybe, if we had the protections written into GATS, we'd be a bit better off.



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