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The
LCA certifies that the employer will offer the foreign worker the actual
wage or the prevailing
wage, whichever is greater, and that the employment of the foreign
worker will not adversely affect the working conditions of the
employer's U.S. employees. The employer must certify that there is
no strike or lockout taking place, and that the collective bargaining
representative has been notified. The INA also requires that foreign
workers receive the same benefits as the other workers and establishes a
complaint policy for LCA violations and the requisite penalties.
Finally, H-1B dependent employers must certify that they have taken good
faith steps to recruit American workers for the job, and that they have
offered the job to any United States worker who applies and is equally
or better qualified than the foreign worker.
When the LCA is approved by the DOL, the employer then files the
H-1B petition with the Immigration and Naturalization Service
(INS) with the required $500 fee
for each petition. Since the actual and prevailing wages are based
upon the particular job title or position and geographic area of
employment, the wages may vary if the foreign worker changes
positions or work sites. If a change like this or any other material
change in employment occurs, the employer has the burden of filing
another LCA with the DOL and a new or amended H-1B petition with the
INS. If the foreign worker wishes to change employers, the prospective
employer must file a new LCA and H-1B petition and have it approved
before the foreign worker may begin working for the new employer.
Thus, the employer ends up dealing with two federal agencies and a
myriad of complex rules in this process. C.
Cataloguing The Pervasive Ills Of The H-1B Visa Program
Past Congressional responses to the adverse cries of industry on
one side and unions on the other have left a pockmarked landscape in the
H-1B law and led to numerous implementation and feasibility
difficulties. Basically, the H-1B petition process is "a Byzantine
rule that is hamstringing employers and keeping them from conducting
business in the way companies normally do in this day and age."
Some free market economists suggest that American immigration
policy should take on a more laissez faire flavor with the goal of
reducing discretionary government intervention and encouraging outcomes
caused by invisible market forces.
In this flexible system, a country would admit workers based on human
capital endowments. The likely losers in this system would be the
unskilled and poorly educated, who, under protectionism, could
secure more highly paid positions. Although this paints a picture
of seamless flows of intellectual capital, an unfettered immigration
policy, especially for temporary workers, is an unlikely scenario.
Instead, American immigration policies, such as the H-1B visa
program, undoubtedly spawned from realist theory, which suggests that
countries allow the influx of foreigners to the extent it advances
economic, national and political interests. "[P]olitical
and economic interests of the state, including military security,
foreign relations, territorial integrity, and national integration,
drive the regulation of international migration." With these
realist interests in mind, Congress created an incredibly complex H-1B
law, spurning talent-hungry employers and opportunistic foreign workers
alike. The H-1B law generates many problems, including ambiguous,
time-consuming procedures; quota restrictions; troubles in allocating
scholarship and training funds; and difficulties in adjusting status to
permanent residency.
The first major problems with the H-1B visa procedure are
its ambiguous nature and its complicated and restrictive process.
Immigration attorneys, employers, and anxious foreign workers have aired
their frustrations about dealing with the capacious and dubious terms in
both the DOL and INS regulations. The terms in the regulations are often
either undefined (e.g. "material change") or defined
differently in several places (e.g. "employer"); thus,
employers and their attorneys find themselves scrutinizing DOL and INS
policy guidelines and advisory opinions from agency officials in an
attempt to understand the terms.
Further, deciding whom the "employer" is, and whether a new
LCA or H-1B petition needs to be filed, becomes especially problematic
in the age of increased mergers and acquisitions.
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