Petition to remove Computer-related occupations from employment based immigration

Problems, are sometimes not resolved to the lowest common denominator. The glaring problem in high-skill temporary immigration, is not the H-1B and L-1 programs, it is the gross over-subscription of H-1B and L-1 nonimmigrants in the "Computer-related occupations." One solution is to decertify Computer-related occupations from the DOJ list of "Specialty occupations."

A National Science foundation report shows that in 2006, 51% of all 113,593 H-1B visas granted were to Computer-related occupations. [57,932 visas]
http://www.nsf.gov/statistics/seind08/c3/fig03-62.htm

Here is what the law says about employment related immigration.

U.S. Code Collection
TITLE 8 > CHAPTER 12 > SUBCHAPTER II
> Part II > § 1182
§ 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. (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.
(iii) Professional athletes
http://www.law.cornell.edu/uscode/uscode08/usc_sec_08_00001182----000-.html

First, we see that employment based immigration is the exception rather than the rule. Immigration "for the purpose of performing skilled or unskilled labor is inadmissible..." the exception is where the Secretary of Labor has certified insufficient workers at the time and place, but "the employment of such alien will not adversely affect the wages and working conditions of workers in the United States similarly employed." The current list of DOL certified occupations in "sciences or the arts" are generally called "Specialty Occupations. " The list of specialty occupations can be found on Form ETA-9035.

The occupational over-subscription is in the DOT defined, "Computer-Related Occupations."

COMPUTER-RELATED OCCUPATIONS
[Dictionary of Occupational Titles (DOT)]
030 OCCUPATIONS IN SYSTEMS ANALYSIS AND PROGRAMMING
031 OCCUPATIONS IN DATA COMMUNICATIONS AND NETWORKS
032 OCCUPATIONS IN COMPUTER SYSTEM USER SUPPORT
033 OCCUPATIONS IN COMPUTER SYSTEM TECHNICAL SUPPORT
039 OTHER COMPUTER-RELATED OCCUPATIONS

Over-subscription data comes the discontinued USCIS "H-1B Characteristics reports" from 2000-2005.[1] H-1B statistics for the (DOT) Computer-related occupations, are synonymous with the BLS - OES, "SOC" 15-1000 Computer Specialists. http://www.bls.gov/soc/soc_c0a0.htm

Guestworker over-subscription in Computer-related occupations.
From 2000-2006, employment growth (BLS-OES) in the (SOC) 15-1000 Computer Specialists, was 326,600. [2]

The National Science Foundation reports that 310,749 B.S. Computer Science degrees were granted to Americans from 2000 - 2006, with an additional 26,533 BS-CS awarded to temporary residents. [3] Domestic BS-CS degree production of 337,282 awards, exceeded "(SOC) 15-1000 Computer Specialist" employment growth of 326,600.

During a shorter period, 2001-2006, reflecting the six year H-1B duration, 328,968 H-1B visas were granted to "initial employment approvals" for Computer related occupations.[1][4] Computer-related occupations, H-1B initial employment approvals, also exceeded employment growth.

Factoid: 2000 to 2005 [1]
Computer related H-1B "Initial employment approvals = 348,691
Computer related H-1B "Continuing employment approvals = 390,506

Narrowing the scope to the 2000-02 recession, [2] the BLS-OES occupational statistics show an employment decline of 134,960 in Computer-related occupations, during 2001 (110,712) and 2002 (25,637) H-1B awards were added to the occupational group. Employment for H-1B is reserved as a condition of entry, therefore, the decline in the occupation and new H-1B are additive, bringing the job losses to 271,309.

The H-1B is only one of the high-skill non-immigrant visa program that has "...adversely affect the wages and working conditions of workers in the United States similarly employed." There are many high-skill nonimmigrant visa categories, the "O", "H-1", "L-1" and "TN" visas are all employment based temporary visas.[5] that can include Computer-related occupations.

High-skill temporary visas (H-1B, L-1,H-3, O-1, O-2, TN) [5]
1998 = 136,000
1999 = 165,930
2000 = 197,520
2001 = 230,400
2002 = 184,770
2003 = 165,430
2004 = 213,020
2005 = 203,320
2006= 224,060

Again, 271,309 workers were permanently displaced by the glut in computer-related H-1B awards, another 310,749 American BS-CS graduates entered the workforce. As a condition of employment, H-1B must have an employment offer, so 582,058 high skill workers were shut out of the Computer-related occupations. Additionally, 430,084 L-1 Intracompany visas were issued during the 2000-2006 period.[6] There are no statistics available to prove the L-1 subscription levels for Computer-related, but the OIG made the following statement:

"From 1999 to 2004, nine of the ten firms that petitioned for the most L-1 workers were computer and IT related outsourcing service firms that specialize in labor from India." [7]

Fraud estimate in Computer-related immigration:
The USCIS recently found a 31% violation/fraud rate in H-1Bs with Bachelor's degrees as the highest level of education.[8] Bachelor's degreed H-1B recipients are higly concentrated in Computer-related occupations. The NSF reports that roughly 47,300 of all new H-1Bs in 2006 did not have advanced degrees, in Computer-related occupations, 35,904 did not have advanced degrees (postgrad). 75.9% of all H-1Bs withless than a postgraduate degree were granted to Computer-related occupations in 2006.[9]

The most popular H-1B occupation also experienced the fourth highest rate of fraudulent conduct - computer-related occupations accounted for 42% (104 cases) of the sample. Among this sample, 27% (28 cases) were associated with some type of fraud or technical violation(s).[8]

Additionally, due to the AC21, H-1B and L-1 portability provisions,[10] it is reasonable to assume that similar violation/fraud rates exist in the Employment based green card PERM system, which is currently experiencing a backlog 500,000 applicants.

Overall, we estimate that the number of employment based principals (in the three main employment visa categories—EB1, EB2, and EB3) waiting for legalpermanent residence in the United States in 2006 was 500,040.
http://www.cggc.duke.edu/documents/IntellectualProperty_theImmigrationBacklog_andaReverseBrainDrain_003.pdf

America's high skill immigration policy has been completely insensitive to changing market conditions, even when employment creation has gone negative, America continues to import skilled workers without regard to available data. Other countries, such as Australia adjust their immigration intake by occupation.

"The economic circumstances in Australia have changed as a result of the global financial crisis," Senator Evans said. "It is prudent to reduce this year's migration intake accordingly."

The cuts will be coupled with deletions to the critical skills list,which specifies which jobs are open to migrants.

Senator Evans said Australia needs a more targeted list "so that migrant workers are meeting skills shortages and not competing with locals for jobs".
Government to cut immigration intake, 16 March 2009

Fortunately, Elaine Chao is no longer the Secretary of Labor, Hilda Solis has been sworn in, she has publicly stated that she is interested in reviewing the H-1B and other non-immigrant employment programs. http://www.dol.gov/_sec/welcome.htm

I suggest that we call the DOL (Telephone: 1-866-4-USA-DOL (1-866-487-2365)) or email ExecutiveSecretariat@dol.gov and ask that Ms. Solis decertify "Computer-related Occupations" from the H-1B, L-1 OPT and EB-3 employment based visa programs.

The definition of Computer-related Occupations would include:
(DOT) "Computer Related Occupations"
(SOC) "15-1000 Computer Specialists"
(NCES - CIP) COMPUTER AND INFORMATION SCIENCES AND SUPPORT SERVICES

And the occupations listed under the following NAICS Industries:
54151 Computer Systems Design and Related Services
541511 Custom Computer Programming Services
541512 Computer Systems Design Services
541513 Computer Facilities Management Services
541519 Other Computer Related Services

References:
[1] Source: USCIS
Report on Characteristics of Specialty Occupation Workers (H-1B): Fiscal Year 2000
Report on Characteristics of Specialty Occupation Workers (H-1B): Fiscal Year 2001
Characteristics of Specialty Occupation Workers (H-1B): Fiscal Year 2002
Characteristics of Specialty Occupation Workers (H-1B): Fiscal Year 2003
Characteristics of Specialty Occupation Workers (H-1B): Fiscal Year 2004
Characteristics of Specialty Occupation Workers (H-1B): Fiscal Year 2005

[2] Source: Occupational Employment Statistics
15-1000 Computer Specialists Employment May 2000 = 2,642,910
15-1000 Computer Specialists Employment May 2006 = 2,969,510
Employment growth = 326,600

[3] Source: National Science Foundation
Division of Science Resources Statistics, special tabulations of U.S. Department of Education, National Center for Education Statistics, Integrated Postsecondary Education Data System, Completions Survey, 1997–2006.

[4] Source: National Science Foundation
"Chapter 3. Science and Engineering Labor Force"

An estimate (avg. of prior years) was used for 2006 computer-related H-1B awards 54,828, new data from the NSF indicates that 51% of 110,000 visas (over 56,100 H-1B visas) were computer related.

"In 2006, 51% of new H-1B recipients were in computer-related occupations..."

"Over two-thirds of the slightly more than 110,000 recipients of H-1B visas in 2006 are in S&T occupations..."

[5] Source: Immigrant Visa Control and Reporting Division administrative data, special tabulations.

[6] Source: Classes of Nonimmigrants Issued Visas (Detailed Breakdown), (Including Crewlist Visas and Border Crossing Cards), Fiscal Years 1989 - 2008*

[7] Source: DHS, Office of Inspector General, "Review of Vulnerabilities and Potential Abuses of the L-1 Visa Program"

[8] Source: U.S. CITIZENSHIP AND IMMIGRATION SERVICES, "H-1B Benefit Fraud & Compliance Assessment"

[9] Source: National Science Foundation, "Chapter 3. Science and Engineering Labor Force"

[10] Source: TITLE I—AMERICAN COMPETITIVENESS IN THE TWENTY-FIRST CENTURY

Appendix A.

COMPUTER-RELATED OCCUPATIONS DEFINED:

Dictionary of Occupational Titles (DOT)
030 OCCUPATIONS IN SYSTEMS ANALYSIS AND PROGRAMMING
031 OCCUPATIONS IN DATA COMMUNICATIONS AND NETWORKS
032 OCCUPATIONS IN COMPUTER SYSTEM USER SUPPORT
033 OCCUPATIONS IN COMPUTER SYSTEM TECHNICAL SUPPORT
039 OTHER COMPUTER-RELATED OCCUPATIONS

North American Industry Classification System (NAICS)
54151 Computer Systems Design and Related Services
541511 Custom Computer Programming Services
541512 Computer Systems Design Services
541513 Computer Facilities Management Services
541519 Other Computer Related Services

Standard Occupational Classifications (SOC)
15-1011 Computer and Information Scientists, Research
15-1021 Computer Programmers
15-1031 Computer Software Engineers, Applications
15-1032 Computer Software Engineers, Systems Software
15-1041 Computer Support Specialists
15-1051 Computer Systems Analysts
15-1061 Database Administrators
15-1071 Network and Computer Systems Administrators
15-1081 Network Systems and Data Communications Analysts
15-1099 Computer Specialists, All Other

Classification of Instructional Programs (NCES-CIP)
11.0101 Computer and Information Sciences, General.
11.0102 Artificial Intelligence and Robotics.
11.0103 Information Technology.
11.0201 Computer Programming/Programmer, General.
11.0202 Computer Programming, Specific Applications.
11.0203 Computer Programming, Vendor/Product Certification.
11.0301 Data Processing and Data Processing Technology/Technician.
11.0401 Information Science/Studies.
11.0501 Computer Systems Analysis/Analyst.
11.0701 Computer Science.
11.0801 Web Page, Digital/Multimedia and Information Resources Design.
11.0802 Data Modeling/Warehousing and Database Administration.
11.0803 Computer Graphics.
11.0901 Computer Systems Networking and Telecommunications.
11.1001 System Administration/Administrator.
11.1002 System, Networking, and LAN/WAN Management/Manager.
11.1003 Computer and Information Systems Security.
11.1004 Web/Multimedia Management and Webmaster.

What is a Union?

Now that you've read the title of this blog, clear your mind of everything that has comes to mind about Labor Unions. Some Labor Unions have become too powerful because they have been granted too much power by the membership.

The "bargaining scope" of a labor organization can be very limited, in fact, if you elected one "bargaining representative" to negotiate your health benefits and another "bargaining representative" to negotiate your salary, you would effectively belong to two Unions.

This blog-post asks the reader to consider an IT Professional Association (Union) with an extremely limited bargaining scope -- employment based immigration.

The term "Union" has become associated with entitlement, but other definitions are constructive.

Union:
Three piece fitting that joins two sections of pipe, but allows them to be disconnected without cutting the pipe.
www.thedrainsurgeon.com/terms.html

In computer science, a union is a data structure that stores one of several types of data at a single location. There are only two safe ways of accessing a union object. One is to always read the field of a union most recently assigned; tagged unions enforce this restriction.
en.wikipedia.org/wiki/Union_(computer_science)

Unions - A trade union or labour union is an organisation of workers who have banded together to achieve common goals in key areas such as wages, hours.
en.wikipedia.org/wiki/Unions

The true problem, which should be addressed in the with the H-1B & L-1 nonimmigrant visas is that "5415 Computer Systems Design and Related Services" is oversubscirbed with nonimmigrant workers . One hundred percent of OES employment growth has been reserved to H-1B workers in this decade.

"In 2006, 51% of new H-1B recipients were in computer-related occupations, including 48% in the United States Citizenship and Immigration Services occupational category of "occupations in systems analysis and programming," which includes many S&E occupations, such as computer scientist, and technician occupations, such as programmer." National Science Foundation: "Science and Engineering Indicators 2008"

American Industry Classification System (NAICS)
54151 Computer Systems Design and Related Services
541511 Custom Computer Programming Services
541512 Computer Systems Design Services
541513 Computer Facilities Management Services
541519 Other Computer Related Services

Consider a Professional Association, that is instructed to become the "bargaining representative" to the for SOC Computer related occupations within the NAICS "Computer Systems Design and Related Services" Industry. The bargaining scope of this Professional Association would be the adherence to employment-based immigration law.

The benefit of having an immigration related bargaining unit is twofold, one the employer must notify the bargaining unit of its intention to hire an H-1B, and two there cannot be a strike or lockout when an LCA is filed.

20 CFR 655.733 - What is the third LCA requirement, regarding strikes and lockouts?

An employer seeking to employ H-1B nonimmigrants shall state on Form ETA 9035 or 9035 E that there is not at that time a strike or lockout in the course of a labor dispute in the occupational classification at the place of employment. A strike or lockout which occurs after the labor condition application is filed by the employer with DOL is covered by INS regulations at 8 CFR 214.2(h)(17).

(b) Documentation of the third labor condition statement. The employer need not develop nor maintain documentation to substantiate the statement referenced in paragraph (a) of this section. In the case of an investigation, however, the employer has the burden of proof to show that there was no strike or lockout in the course of a labor dispute for the occupational classification in which an H-1B nonimmigrant is employed, either at the time the application was filed or during the validity period of the LCA.

20 CFR 655.734 - What is the fourth LCA requirement, regarding notice

An employer seeking to employ H-1B nonimmigrants shall state on Form ETA 9035 or 9035E that the employer has provided notice of the filing of the labor condition application to the bargaining representative of the employer's employees in the occupational classification in which the H-1B nonimmigrants will be employed or are intended to be employed in the area of intended employment, or, if there is no such bargaining representative, has posted notice of filing in conspicuous locations in the employer's establishment(s) in the area of intended employment, in the manner described in this section.

Strikes, Lockouts & Picketing
When a trade union is unable to negotiate a collective agreement, they sometimes choose to strike an employer. A strike includes (1) a cessation of work, (2) a refusal to work, or (3) a refusal to continue to work, by two or more employees for the purpose of compelling their employer to agree to terms or conditions of employment.

Similarly, employers may choose to lockout their workers. A lockout includes (1) the closing of a place of employment by an employer, (2) the suspension of work by an employer, or (3) a refusal by an employer to continue to employ employees for the purpose of compelling employees to agree to terms of conditions of employment.

When the Professional Association has obtained legal status to represent the bulk of workers within the NAICS "Computer Systems Design and Related Services" Industry and SOC "COMPUTER-RELATED OCCUPATIONS", we can petition the DOL and USCIS for H-1B occupational data and prove the visa oversubscription. The next step is to petition the government to remove the occupational Computer related occupations group from the list of H-1B occupations.


Appendix 2
THREE-DIGIT OCCUPATIONAL GROUPS
PROFESSIONAL, TECHNICAL, AND MANAGERIAL OCCUPATIONS
AND FASHION MODELS


COMPUTER-RELATED OCCUPATIONS
030 OCCUPATIONS IN SYSTEMS ANALYSIS AND PROGRAMMING
031 OCCUPATIONS IN DATA COMMUNICATIONS AND NETWORKS
032 OCCUPATIONS IN COMPUTER SYSTEM USER SUPPORT
033 OCCUPATIONS IN COMPUTER SYSTEM TECHNICAL SUPPORT
039 OTHER COMPUTER-RELATED OCCUPATIONS

http://www.doleta.gov/regions/REG05/Documents/eta-9035.pdf

The power (and funding) for an American IT Professional Association, would come from injecting itself into the recruiting process. Providing information services to American IT Professionals and creating lists of preferred recruiters that support our positions. These recruiters would fund and profit from the Association.

The out of pocket costs to the American IT Professional, would simply be to use the Associations resources as exclusively as is prudent -- and contribute intellectually to the promotion of the profession. More on this later.