US Department of Labor's Strategic Plan for 2006 through 2011, on page 35 states:
"H-1B workers may be hired even when a qualified U.S. worker wants the job, and a U.S. worker can be displaced from the job in favor of the foreign worker."
FY2006-2011 strategic plan main web page
DoL strategic plan pdf
2007: Programmers Guild
contrast with DoL strategic plan for FY2011-2016
The Federal Register 2006-06-30, Sec. 2, paragraph 4: "the statute does not require employers... to demonstrate that there are no available US workers or to test the labor market for US workers as required under the permanent labor certification program." (from Donna Conroy of http://www.brightfuturejobs.com/)
2000-04-24: Joel Stewart _Immigration Daily_ Legal Rejection of US Workers: "even in a depressed economy, Employers who favor aliens have an arsenal of legal means to reject all U.S. workers who apply."
2007 June: Cohen & Grigsby's 7th annual employment and immigration law seminar taught how to avoid US candidates and how to spuriously declare them "unqualified" or "unwilling". Immigration lawyer association spokes-person acknowledged that PERM process is a charade. (You'll have to scroll down that page and follow the links to get the whole story.)
20 CFR 655 Part H
The are only four requirements/attestations for hiring H-1B workers:
655.731 state the employer will pay a "prevailing wage"
655.732 working conditions
655.733 no strikes and lockouts
655.734 provide notice - post the LCA at the workplace
There is no requirement to advertise, recruit, hire, or claim that no qualified USA workers are available. The "notice" provision of 655.734 is a due process sham, since adversely impacted USA workers have no remedy.
The 1996-05-22 report of the DoL Inspector General.
"A small number of H-1B employers are required to make additional attestations concerning the non-displacement and recruitment of USA workers... All employers are also required to make four attestations on the application as to: 1. Wages: The employer will pay non-immigrants at least the local prevailing wage or the employer's actual wage, whichever is higher, and pay for non-productive time caused by a decision made by the employer; and offer non-immigrants benefits on the same basis as USA workers. 2. Working conditions: The employment of H-1B non-immigrants will not adversely affect the working conditions of USA workers similarly employed. 3. Strike, lock-out, or work stoppage: No strike or lockout exists in the occupational classification at the place of employment. 4. Notification: The employer has notified employees at the place of employment of the intent to employ H-1B workers... Certain employers are required to make 3 additional attestations on their application. These additional attestations apply to H-1B employers who: (1) are H-1B dependent, that is, generally those whose workforce is comprised of 15 percent or more H-1B non-immigrant employees; or (2) are found by [the Department of Labor] to have committed either a willful failure to meet H-1B program requirements or misrepresented a material fact in an application during the previous 5 years. These employers are required to additionally attest that: (1) they did not displace a USA worker [citizen or green card holder] within the period of 90 days before and 90 days after filing a petition for an H-1B worker; (2) they took good faith steps prior to filing the H-1B application to recruit USA workers and that they offered the job to a USA applicant who was equally or better qualified than an H-1B worker; and (3) prior to placing the H-1B worker with another employer, they inquired and have no knowledge as to that employer's action or intent to displace a USA worker within the 90 days before and 90 days after the placement of the H-1B worker with that employer... These additional requirements first applied from 2001 January 19 - 2003 September 30. However, the provision requiring these attestations sun-setted, or expired, and was not reinstituted until 2005 March 8. Consequently, from 2003 October 1 to 2005 March 7, H-1B dependent employers and willful violator employers were not required to make the additional attestations, and, in effect, were able to hire H-1B workers even if they displaced U.S. workers and did not make efforts to recruit U.S. workers." --- Sigurd R. Nilson 2006-06-22 GAO "H-1B Visa Program: More Oversight by Labor Can Improve Compliance with Program Requirements" (pdf)
H-1B Dependent Employer Attestation language is:
A. Displacement: The employer will not displace any similarly employed USA worker within the period beginning 90 days before and ending 90 days after the date of filing a petition for an H-1B non-immigrant supported by the application.
B. Secondary Displacement: The employer will not place any H-1B non-immigrant employed pursuant to this application with any other employer or at another employer's worksite UNLESS the employer applicant first makes a bona fide inquiry as to whether the other employer has displaced or intends to displace a similarly employed USA worker within the period beginning 90 days before and ending 90 days after the placement, and the employer applicant has no contrary knowledge.
C. Recruitment and Hiring: Prior to filing any petition for an H-1B non-immigrant pursuant to this application, the employer took or will take good faith steps meeting industry-wide standards to recruit USA workers for the job for which the non-immigrant is sought, offering compensation at least as great as required to be offered to the H-1B non-immigrant. The employer will (has) offer(ed) the job to any USA worker who (has) applied and is equally or better "qualified" than the H-1B non-immigrant.
2019-01-15 (5779 Shebet 09)
Ron Hira & Bharath Gopalaswamy _Atlantic Council_
reforming USA H-1B guest-worker program (for which there is no skill level requirement)
There was no shortage of talented US citizen STEM workers.
There is no shortage of talented US citizen STEM workers.
No credible evidence of impending shortage of talented US citizen STEM workers has been produced.
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