H-1B Class Action
Citizen Worker Protections in Temporary Employment Visas
It is inconceivable that everyone else is protected, and we are not.
"If it's displacement of American workers, it's against the law."
Sen. Bill Nelson - WKMG Orlando, "H-1B and L1 Visa Abuse", 02/18/2003
"Is it O.K. to use L-1s for outsourcing to other firms? The answer is no,"
says State Dept. spokesman Stuart Patt.
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Scroll to the bottom of the LCA (H-1B Labor Condition Application) form
and you will see (in small print) the following statement:
US DOL LCA Form 9035 (pdf)
Complaints alleging failure to offer employment
to an equally or better qualified U.S. worker,
or an employer's misrepresentation regarding
such offer(s) of employment, may be filed with:
U.S. Dept. of Justice
Office of the Special Counsel
10th and Constitution Ave. NW
Washington, DC 20530
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USC 8 Section 1182
United States Code
TITLE 8 - ALIENS AND NATIONALITY
CHAPTER 12 - IMMIGRATION AND NATIONALITY
SUBCHAPTER II - IMMIGRATION
PART II - ADMISSION QUALIFICATIONS FOR ALIENS; TRAVEL CONTROL OF CITIZENS AND ALIENS
Section 1182. 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.
[We need to hammer the Secretary of Labor.]
These H-1B definitions assume a skill shortage, so the protections are
assumed not necessary. Non-immigrant Ag worker provisions protect citizens.
8 U.S.C. 1101
IMMIGRATION AND NATIONALITY ACT/INA: ACT 101 - DEFINITIONS
Sec. 101. [8 U.S.C. 1101] (a)(15)
(H-1B definitions)
(H) an alien (i) 3a/ 3b/ (b) subject to section 212(j)(2) [graduate of a
medical school], who is coming temporarily to the United States to perform
services (other than services described in subclause (a) during the period
in which such subclause applies and other than services described in subclause
(ii)(a) or in subparagraph (O) or (P)) in a specialty occupation described
in section 214(i)(1) [highly specialized knowledge] or as a fashion model,
who meets the requirements for the occupation specified in section 214(i)(2)
[licensure] or, in the case of a fashion model, is of distinguished merit and
ability, and with respect to whom the Secretary of Labor determines and
certifies to the Attorney General that the intending employer has filed
with the Secretary an application under section 212(n)(1), 3b/ or (c) who is
coming temporarily to the United States to perform services as a registered
nurse, who meets the qualifications described in section 212(m)(1), and
with respect to whom the Secretary of Labor determines and certifies to the
Attorney General that an unexpired attestation is on file and in effect under
section 212(m)(2) for the facility (as defined in section 212(m)(6)) for which
the alien will perform the services; or
(non-immigrant ag worker definition)
(ii)(a) having a residence in a foreign country which he has no intention
of abandoning who is coming temporarily to the United States to perform
agricultural labor or services, as defined by the Secretary of Labor in
regulations and including agricultural labor defined in section 3121(g) of the
Internal Revenue Code of 1954 and agriculture as defined in section 3(f) of the
Fair Labor Standards Act of 1938 (29 U.S.C. 203(f)), of a temporary or seasonal
nature, or (b) having a residence in a foreign country which he has no intention
of abandoning who is coming temporarily to the United States to perform other
temporary service or labor if unemployed persons capable of performing such
service or labor cannot be found in this country, but this clause shall not
apply to graduates of medical schools coming to the United States to perform
services as members of the medical profession; or
20 CFR 655.3
Labor Certification Process for Temporary Employment in Occupations
Other Than Agriculture, Logging, or Registered Nursing in the United States
(H-2B Workers)
(b) In making this finding, such matter as the employer's attempts
to recruit workers and the appropriateness of the wages and working
conditions offered, will be considered. The policies of the United
States Employment Service set forth in part 652 of this chapter and
subparts B and C of this part shall be followed in making the findings.
20 CFR 655.101
(H2-A) Temporary alien agricultural labor certification applications.
(a) General--(1) Filing of application. An employer who anticipates
a shortage of U.S. workers needed to perform agricultural labor or
services of a temporary or seasonal nature may apply to the RA in whose
region the area of intended employment is located, for a temporary alien
agricultural labor certification for temporary foreign workers (H-2A workers).
20 CFR 655.206
Labor Certification Process for Logging Employment and Non-H-2A Agricultural Employment
Determinations of U.S. worker availability and adverse effect on U.S. workers.
(a) If the RA, in accordance with Sec. 655.205 has determined that
the employer has complied with the recruitment assurances, the RA, by
60th day of the recruitment period, or 20 days before the date of need
specified in the application, whichever is later, shall grant the
temporary labor certification for enough aliens to fill the employer's
job opportunities for which U.S. workers are not available. In making
this determination the RA shall consider as available for a job
opportunity any U.S. worker who has made a firm commitment to work for
the employer, including those workers committed by other authorized
persons such as farm labor contractors and family heads; such a firm
commitment shall be considered to have been made not only by workers who have
signed work contracts with the employer, but also by those whom the RA
determines are very likely to sign such a work contract. The RA shall also
count as available any U.S. worker who has applied to the employer (or on whose
behalf an application has been made), but who was rejected by the employer for
other than lawful job-related related reasons unless the RA determines that:
(1) Enough qualified U.S. workers have been found to fill all the
employer's job opportunities; or
(2) The employer, since the time of the initial determination under
Sec. 655.204, has adversely affected U.S. workers by offering to, or
agreeing to provide to, alien workers better wages, working conditions, or
benefits (or by offering or agreeing to impose on alien workers less obligations
and restrictions) than that offered to U.S. workers.
(d) (1) After a temporary labor certification has been granted, the
employer shall continue its efforts to actively recruit U.S. workers
until the foreign workers have departed for the employer's place of
employment. The employer, however, must keep an active job order on file
until the assurance at Sec. 655.203(e) is met.
(2) The ES system shall continue to actively recruit and refer U.S.
workers as long as there is an active job order on file.
20 CFR 655.310
(H-1A) Attestations by Facilities Using Nonimmigrant Aliens as Registered Nurses
i(B) The employment of the aliens will not adversely affect the wages
and working conditions of registered nurses similarly employed.
(C) The aliens employed by the facility will be paid the wage rate
for registered nurses similarly employed by the facility.
(D) Either--(1) The facility has taken and is taking timely and
significant steps designed to recruit and retain sufficient registered
nurses who are United States citizens or immigrants who are authorized
to perform nursing services, in order to remove as quickly as reasonably
possible the dependence of the facility on nonimmigrant registered nurses, or
20 CFR 655.1110
What Requirements Must a Facility Meet to Employ
H-1C Nonimmigrant Workers as Registered Nurses?
d(2) That employment of H-1C nurses will not adversely affect the
wages or working conditions of similarly employed nurses (See
Sec. 655.1112);
(3) That the facility will pay the H-1C nurse the facility wage
rate (See Sec. 655.1113);
(4) That the facility has taken, and is taking, timely and
significant steps to recruit and retain U.S. nurses (See
Sec. 655.1114);
(5) That there is not a strike or lockout at the facility, that the
employment of H-1C nurses is not intended or designed to influence an election
for a bargaining representative for RNs at the facility, and that the facility
did not lay off and will not lay off a registered nurse employed by the facility
90 days before and after the date of filing a visa petition (See Sec. 655.1115);
(6) That the facility will notify its workers and give a copy of
the Attestation to every nurse employed at the facility (See Sec. 655.1116);
(7) That no more than 33% of nurses employed by the facility will
be H-1C nonimmigrants (See Sec. 655.1117);