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.

Project: Guestworker Impact on U.S. Computer-related occupations 2000-2005

4/16/2007

revised 4/20/2007

revised 12/3/2008

Background:
After several years of research, I cannot find (H-1B and L-1) guestworker impact studies on my former career in Computer Information Systems. I have never come across a study, or publication that examines the monetary impact of the H-1B, L-1 guestworker, and the subsequent Employment based (EB-2 & EB-3) green card programs have had on Computer-related occupations.

Assumptions:
The H-1B, L-1 (intracompany) guestworker and the EB-2, EB-3, green card programs are similar in the fact that they are all employment based. The various government reporting formats are diverse, direct comparison of the data is difficult; I infer that it is reasonable to assume that statistical averages taken from one category will be relevant to each of these similar categories unless government documents indicate otherwise -- as is the case with the L-1 intracompany visa.

From the H-1B visa data, I found a 6 year average for continuing employment approvals, my assumption is that L-1 continuing employment approvals will mirror the H-1B continuing employment approval rate. This assumption is required because the 2000 - 2005 continuing employment approval data is not readily available for L-1 visa-holders.

The Employment Based Preference (EB) visa data is reported with spouses and children included in the totals; the L-1 (workers) and L-2 (spouses and children) categories are used to determine an average population of spouses and children. The averages of spouses and children are applied to the EB-2 and EB-3 green card LPR data to determine the number of workers in the EB program .

Finally, the duration of the three foreign worker programs are similar. The H-1B visa is a 3 year visa with a single 3 year extension, the L-1B visa (worker) is a 3 year visa with a single 2 year extension and the L-1A (supervisor) is a 3 year visa with two 2 year extensions allowed. The L-1 visa usage is reported to be about 50/50 (See "L-1B overtakes L-1A" in the OIG L-1 report.) so I've averaged the two visas at six years ((7+5)/2)=6 years.

The employment based, EB-2 and EB-3 legal permanent resident programs require a 5 year LPR probation status before granting the green card. Many non-immigrants, who are adjusting status to the EB visa, are granted numerous single year extensions beyond the H-1b and L-1 duration limits while awaiting a "priority date." I've allowed this "fuzzy" sixth year between the non-immigrant and EB visa in the study to maintain parity with the 2000 - 2005 six year sample.

Note: This study separates Employment based EB-2 and EB-3 "new arrivals" from those who are "adjusting status" from another visa category. Published studies demonstrate that employment based non-immigrant visa programs have caused a backlog of 500,000 workers in the EB PERM program; many of the truly "brightest and best" cannot migrate directly into the green card program and will not subject themselves to non-immigrant indenture.

Assertions:

Continuing Employment (H-1B factor): 97.52%

The H-1B continuing employment approvals over actual H-1B visas issued. Visa counts offer a more accurate representation of H-1B guestworkers in the population than H-1B Initial employment approvals.)

(Continuing employment H-1B approvals \ H1-B visas issued)

Non-Continuing Employment (H-1B factor): -2.48%

The percentage of initial H-1B visas which are not renewed.

-1*(1- (Continuing employment H-1B approvals \ H1-B visas issued))

L-2 Spouses/Children factor: -49.07%

The "L-2 Spouses/Children factor:" is used to subtract a proportionate number of spouses/children from other categories where the raw data does not differentiate workers from spouses/children.

(The L visa category is reported as L-1 (Workers) and L-2 (Spouses and children), the six year average of the L category is used to determine the rate (ratio) of immigrating workers to spouses/children.)

-1*(L-2 spouses&children / (L-1 workers+ L-2 spouses&children))

H-1B Computer-related approvals: 46.43%

The six year average (2000-2005) of continuing employment petition approvals for the H-1B, "Computer-related occupations" category.

(Computer-related H-1B approvals \ H-1B approvals)

L-1 Computer-related statistic: 90%

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.

End Assertions:

Excel Workbook Rollup worksheet:

2005 BLS Computer Related Payroll Jobs = 2,855,320

H-1B Guestworkers & continuances:

H-1B 2000-2005 initial approval visas issued = 783,546
Non-Continuing Employment (H-1B factor): = (-19,432 )
H-1B 2000-2005 Continuing Employment Approvals = 764,084
Total H-1B visa 6 year accumulation = 1,528,198

L-1 (Intracompany) visas & continuances:

L-1 2000-2005 Visas Issued = 356,471
The Non-Continuing Employment (H-1B factor): = (-8,854)
Continuing Employment (H-1B factor): = 347,617
Total L-1 visa 6 year accumulation = 695,234

Employment Based Preference EB-2 & EB-3 new arrivals:

Total visas issued 2000 - 2005 = 131,875
L-2 Spouses/Children factor: (49.07%) = (-64,704)
Total EB-2 & EB-3 visa 6 year accumulation (new arrivals) = 67,171

Legal Permanent Residence EB-2 & EB-3:

Total LPR granted EB-2 & EB-3 (2000-2005) = 682,550
Subtract EB-2 & EB3 visas new arrivals (2000-2005) = (-131,875)
EB category LPRs granted to other than EB entrance visas = 550,675
L-2 Spouses/Children factor: (49.07%) = (-270,216)

Total EB-2 & EB-3 visa 6 year accumulation (non entrance visa) = 280,459

Computer-related immigrant workers in Workforce:

H-1B approvals 2000-2005 (46.43% of 1,528,198) = 709,527
OIG report L-1 petitions Computer related (90% of 695,234) = 625,710
Employment Based Preference new arrivals (46.43% of 67,171) = 31,187
Adjusted status EB-2 & EB-3 - LPR (46.43% of 280,459) = 130,217
Total Computer-related immigrant workers = 1,496,641

Percentage of Computer-related Payroll labor force:
H-1B = 24.85%
L-1 = 21.91%
EB-2 & EB-3 using E visas = 1.09%
Non E entrance visa on EB-2 & EB-3 LPR = 4.56%

2005 Percentage of Computer Related non-citizen workers: = 52.416%
Salaries @ $55,000.00 (H-1B 2005 median): = $ 82,315,252,278.80 per yr.

Resources:

H-1B Visa:
http://www.uscis.gov/files/nativedocuments/H1B_FY05_Characteristics.pdf
http://www.uscis.gov/files/article/FY2001Charact.pdf
http://www.travel.state.gov/pdf/FY05tableXVIb.pdf
http://www.travel.state.gov/pdf/FY04tableXVIb.pdf

L-1 & L-2 Visa:
http://www.dhs.gov/xoig/assets/katovrsght/OIG_06-22_Jan06.pdf
http://www.travel.state.gov/pdf/FY05tableXVIb.pdf
http://www.travel.state.gov/pdf/FY04tableXVIb.pdf

Non E visa vs Legal Permanent Resident EB-2 & EB-3:
http://www.dhs.gov/xlibrary/assets/statistics/yearbook/2005/OIS_2005_Yearbook.pdf

There are various classifications for entrance visas in the Employment based preference. This report separates Employment based, new arrivals and LPRs granted to display that the EB visa is no longer primarily used as the entrance visa -- the majority of EB visas are adjustments of status from non-immigrant categories.

BLS Computer Related Payroll report: (May 2005)
Occupation (SOC code)
Computer and Information Scientists, Research(151011)
Computer Programmers(151021)
Computer Software Engineers, Applications(151031)
Computer Software Engineers, Systems Software(151032)
Computer Support Specialists(151041)
Computer Systems Analysts(151051)
Database Administrators(151061)
Network and Computer Systems Administrators(151071)
Network Systems and Data Communications Analysts(151081)
Computer Specialists, All Other(151099)

Additional H-1B program information:
USCIS Approval of H-1B Petitions Exceeded 65,000 Cap in Fiscal Year 2005
www.dhs.gov/xoig/assets/mgmtrpts/OIG_05-49_Sep05.pdf

Additional Employment Based Preference: http://travel.state.gov/visa/immigrants/types/types_1323.html
http://www.travel.state.gov/pdf/FY05tableII.pdf
http://www.travel.state.gov/pdf/FY04tableII.pdf