Monday, June 18, 2007

Preference in Hiring? (updated)

click on image to expand


When I posted this graph, I really thought that the data said everything about the employment picture for American wage earners. That was until the Programmer's Guild discovered a YouTube presentation called, "Cohen & Grigsby's Seventh Annual Immigration Law Update - Hot Topics in Immigration Law"

Programmer's Guild presentation here:

Apparently, this was a video (removed) of a lecture concerning the difficulties in obtaining H-1B visas, alternative Non Immigrant work-visas are discussed, and then we get to the process of transitioning current employees to PERM greencard status. In the labor certification portion of the PERM lecture, the various requirements are discussed including domestic worker protections.

Various guestworker visas require that the positon be offered to "Qualified and Interested" candidates via advertising. In a dialog between the speaker and the host, we get off-hand, bombshell commentary...

Lawrence M. Lebowitz - Vice President of Marketing - Cohen & Grigsby (Bio).

"Our goal is clearly NOT to find a qualified U.S. worker ... our objective is to get this person a green card ... so certainly we are not going to try to find a place where applicants would be most numerous."

The lecture continues for a moment, explaining how important it is to use the, Cohen & Grigsby checklist, of skills and requirements, to ensure that minimal time is consumed eliminating similarly qualified American candidates, while documenting the elimination process.

Later on, Mr. Lebowitz then interjects another bombshell...

"If someone looks like they are very qualified, if necessary schedule an interview, go through the whole process to find a legal basis to disqualify them."

Wow, I'm feeling a thousand percent better about my (chronically unemployed) self, this must be why employers keep repeating that there is a shortage of technically proficient Americans; they (employers) may have perjured themselves to the Department of Labor! These poor misguided employers have become addicted to labor-arbitrage and their attorneys are advising them to submit dubious DOL attestations to continue the addiction.

But wait... there's more, when we get to the prevailing wage portion of the lecture, free prevailing wage advice is offered on how to "deal with that issue."

Lawrence M. Lebowitz:

"Alright, prevailing wage, that was mentioned in Matt's presentation about H-1B visas, the same requirement applies in labor certification context, we need to make sure, that the person is being paid at or above, Uh-Hem, excuse me, the prevailing wage rate." "So Jen, what, how do we deal with that issue and where does it appear on the application form?"

Jen Pack (AKA Jennifer R. Pack?) responds:

Um' we submit a prevailing wage request to the State Department of Labor office, they will evaluate the job title, work location, job requirements and even supervisory duties and come back to us with a prevailing wage rate. We will then compare that wage rate to the employees salary, if the actual salary is higher that the prevailing wage, then we have no issues at all and we continue with the PERM process.

What do we do if the prevailing wage comes back and it is higher than the employees actual salary? Well, there are several things we can do. First, we have to remember that the wage offered to the employee is the wage that the employee will be earning when he gets, he or her gets his, he she get his greencard. Not the salary that they are making now. So if the prevailing wage comes back three, or four thousand dollars higher than the employee's actual salary, and we can estimate that it will probably be three, or four years, until he get his greencard, then if it's reasonable for that employee's salary to be increased by that amount at the time he gets his greencard, then we have no issues, we can proceed with the Perm application.

Um, Another, another option here is we can consider trying to locate an alternate wage survey, that meets the Department of Labor specific criteria, we can submit that to the Department of Labor and ask that they use that to interpret prevailing wage in place of their own prevailing wage survey.

If we still have not been able to meet the prevailing wage, um, let's say it is ten, fifteen thousand dollars higher than what the employee is going to be making, what can we do then? Well we may want to consider reworking our minimum requirements, maybe scaling them back our requirements from Master's degree to Bachelor's degree, or going from five years experience to two, and then asking the Department of Labor to evaluate that and they should come back with a lower prevailing wage.

This is one of the reasons why we normally like to get the prevailing wage survey before we even start any of the recruitment, in the event that we have to make these changes to the job PERM recruiting text, the job requirements, then we can do the recruitment afterwards.

End of Jen Pack quote.

On the one hand, the requirements are very rigid for the American candidates, then if you don't like the salary that the DOL requires, the requirements are adjusted for the foreign candidate to fit the employer's desired salary range. This in an entirely new paradigm in the recruiting process has me perplexed.

  • First, find a foreign candidate for a job where the qualifications and salary have not yet been defined.
  • Next, apply for a visa -- any visa will do -- reserving the candidate's services with an application fee/performance deposit, making sure to keep pressure on the H-1B annual cap(s).
  • Then, if the guestworker is able to sustain himself in America on his meager salary, enlist the help of an "honorable" attorney to help apply for a greencard.
  • In many cases, the greencard results in a five year Legal Permanent Status where the guestworker is required to sustain the relationship with his employing sponsor for those five additional years.

When I was in business, I must have been doing it all wrong. I had it all backwards, I didn't understand that you've got to hire someone with a compliant salary-requirement first -- and then find something for them to do.

By the way, the quotations above are true and correct, even though the law-firm in question has disabled the video on YouTube, the content of the lecture is cached (as required by Adobe Flash) in my browser's Internet Cache directory and I do regular backups.

Press coverage links of the Cohen & Grigsby's controversy:

YouTube Video On Avoiding U.S. Job Applicants Angers Programmers
By Mary Hayes Weier InformationWeek Jun 18, 2007 05:55 PM

Lou Dobbs commentary video link (hosted by

Fox News Video link

Associated Press:

Pittsburgh lawyers' immigration talk ignites controversy Associated Press

San Francisco Chronical:

Video raises concern about firms' H-1B abuses
2 lawmakers urge labor secretary to probe 'blatant disregard for American workers'
Tom Abate, Chronicle Staff Writer Friday, June 22, 2007

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