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IS THE LABOR DEPARTMENT DOING ENOUGH

TO PROTECT U.S. WORKERS?

HEARING

BEFORE THE

SUBCOMMITTEE ON IMMIGRATION, 

BORDER SECURITY, AND CLAIMS

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES

ONE HUNDRED NINTH CONGRESS

SECOND SESSION

JUNE 22, 2006

Serial No. 109–149

Printed for the use of the Committee on the Judiciary

(

Available via the World Wide Web: http://judiciary.house.gov 

(II)

COMMITTEE ON THE JUDICIARY 

F. JAMES SENSENBRENNER, JR., Wisconsin, Chairman 

HENRY J. HYDE, Illinois 

HOWARD COBLE, North Carolina 

LAMAR SMITH, Texas 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

STEVE CHABOT, Ohio 

DANIEL E. LUNGREN, California 

WILLIAM L. JENKINS, Tennessee 

CHRIS CANNON, Utah 

SPENCER BACHUS, Alabama 

BOB INGLIS, South Carolina 

JOHN N. HOSTETTLER, Indiana 

MARK GREEN, Wisconsin 

RIC KELLER, Florida 

DARRELL ISSA, California 

JEFF FLAKE, Arizona 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TOM FEENEY, Florida 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JOHN CONYERS, JR., Michigan 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

MARTIN T. MEEHAN, Massachusetts 

WILLIAM D. DELAHUNT, Massachusetts 

ROBERT WEXLER, Florida 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

LINDA T. SA ́ NCHEZ, California 

CHRIS VAN HOLLEN, Maryland 

DEBBIE WASSERMAN SCHULTZ, Florida

PHILIP G. KIKO, General Counsel-Chief of Staff 

PERRY H. APELBAUM, Minority Chief Counsel 

SUBCOMMITTEE ON IMMIGRATION, BORDER SECURITY, AND CLAIMS

JOHN N. HOSTETTLER, Indiana, Chairman

STEVE KING, Iowa 

LOUIE GOHMERT, Texas 

LAMAR SMITH, Texas 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

DANIEL E. LUNGREN, California 

JEFF FLAKE, Arizona 

BOB INGLIS, South Carolina 

DARRELL ISSA, California 

SHEILA JACKSON LEE, Texas 

HOWARD L. BERMAN, California 

ZOE LOFGREN, California 

LINDA T. SA ́ NCHEZ, California 

MAXINE WATERS, California 

MARTIN T. MEEHAN, Massachusetts

GEORGE FISHMAN, Chief Counsel 

ART ARTHUR, Counsel 

ALLISON BEACH, Counsel 

CINDY BLACKSTON, Professional Staff 

NOLAN RAPPAPORT, Minority Counsel 

(III)

C O N T E N T S 

JUNE 22, 2006

OPENING STATEMENT 

Page 

The Honorable John N. Hostettler, a Representative in Congress from the 

State of Indiana, and Chairman, Subcommittee on Immigration, Border 

Security, and Claims ............................................................................................ 1

The Honorable Sheila Jackson Lee, a Representative in Congress from the 

State of Texas, and Ranking Member, Subcommittee on Immigration, Border Security, and Claims ..................................................................................... 4

The Honorable Louie Gohmert, a Representative in Congress from the State 

of Texas, and Member, Subcommittee on Immigration, Border Security, 

and Claims ............................................................................................................ 5

The Honorable Darrell Issa, a Representative in Congress from the State 

of California, and Member, Subcommittee on Immigration, Border Security, 

and Claims ............................................................................................................ 6

WITNESSES 

Mr. Sigurd L. Nilsen, Ph.D., Director for Education, Workforce, and Income 

Security Issues, United States Government Accountability Office 

Oral Testimony ..................................................................................................... 7

Prepared Statement ............................................................................................. 9

Mr. Alfred B. Robinson, Jr., Acting Director, Wage and Hour Administration, 

Employment Standards Administration, United States Department of 

Labor, accompanied by Bill Carlson, Administrator, Office of Foreign Labor 

Certification, Employment Training Administration 

Oral Testimony ..................................................................................................... 29

Prepared Statement ............................................................................................. 30

Mr. John M. Miano, Director, Programmers Guild 

Oral Testimony ..................................................................................................... 36

Prepared Statement ............................................................................................. 39

Ms. Ana Avendano, Associate General Counsel and Director, Immigrant 

Worker Program, American Federation of Labor-Congress of Industrial Organizations 

Oral Testimony ..................................................................................................... 54

Prepared Statement ............................................................................................. 55

MATERIAL SUBMITTED FOR THE HEARING RECORD

United States Government Accountability Office Report on ‘‘H-1B Visa Program: Labor Could Improve Its Oversight and Increase Information Sharing 

with Homeland Security,’’ submitted by the Honorable Sheila Jackson Lee, 

a Representative in Congress from the State of Texas, and Ranking Member, Subcommittee on Immigration, Border Security, and Claims .................. 68

Response to Post-Hearing Questions from Alfred B. Robinson, Jr., Acting 

Director, Wage and Hour Administration, Employment Standards Administration, United States Department of Labor ..................................................... 125

‘‘H-1B Violations Report’’ submitted by the U.S. Department of Labor in 

response to request from the Honorable Lamar S. Smith, a Representative 

in Congress from the State of Texas .................................................................. 127

(1)

IS THE LABOR DEPARTMENT DOING ENOUGH 

TO PROTECT U.S. WORKERS? 

THURSDAY, JUNE 22, 2006

HOUSE OF REPRESENTATIVES, 

SUBCOMMITTEE ON IMMIGRATION,

BORDER SECURITY, AND CLAIMS, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC.

The Subcommittee met, pursuant to notice, at 2:05 p.m., in Room 

2141, Rayburn House Office Building, the Honorable John 

Hostettler (Chairman of the Subcommittee) presiding. 

Mr. HOSTETTLER. The Subcommittee will come to order. 

Good afternoon. 

Today we have the opportunity to examine issues raised in a new 

report issued by the Government Accountability Office entitled,’’H1B Visa Program: Labor Could Improve Its Oversight and Increase 

Information Sharing.’’ This report raises serious questions about 

whether the Department of Labor is adequately protecting U.S. 

workers from being harmed by foreign workers on H-1B visas. 

The H-1B visa program exists to allow employers to bring a limited number of highly skilled workers to the United States each 

year. The law requires employers who petition for an H-1B worker 

to first file a labor condition application, or LCA, with the Department of Labor. In the LCA, the employer attests that it will pay 

the worker the prevailing wage in the area, or the same wage it 

pays other workers for a similar job; whatever is greater. The employer also attests that it will offer the same working conditions to 

H-1B workers as it offers to citizens, that no strike or lockout is 

ongoing, and that the employer has notified its other employees 

that it intends to hire an H-1B worker. 

When an employer files such an application with the Department 

of Labor, it is now reviewed electronically. While the process is 

quick, the Department only checks for omissions and obvious inaccuracies on the LCA. Even then, the GAO found that some inaccuracies are not caught by the system. For example, over 3,000 

LCAs were approved despite the fact that the actual wages to be 

paid the H-1B employee were below the prevailing wage. This is 

concerning, because it means that potentially 3,000 jobs were given 

to foreigners who are paid less than Americans for the same job. 

The H-1B program is based on employers making promises, 

promises to pay the prevailing wage and so on. It is up to the 

Labor Department to ensure that the employers are making good 

on their promises. The Department has the authority to investigate 

2

in situations where an employer is believed to have violated the 

terms of the H-1B program. 

Most complaints are filed by aggrieved parties, such as the H-1B 

worker himself, or others with knowledge of a violation. The Department of Labor may also conduct random investigations of employers who have previously violated the program’s requirements. 

According to the GAO, such random investigations were just begun 

several months ago, and were not conducted sooner because of a 

lack of resources due to high caseloads. 

There have been allegations that Labor does not vigorously enforce the H-1B program, that H-1B workers are routinely mistreated, and that this lack of enforcement has resounded to the detriment of American high-tech workers. We will address the truths 

of these allegations at today’s hearing. 

I find it disturbing that the Department of Labor has recently 

asked appropriators to divert money for an H-1B antifraud account 

recently created by this Committee specifically for the purpose of 

funding H-1B enforcement. The account is funded through a new 

$500 antifraud fee which is split between the Labor, State, and the 

Department of Homeland Security. The Department of Labor has 

asked for a redesignation of these funds away from immigration 

enforcement when it appears they don’t have the resources or motivation to do an adequate job as it is. 

I am interested in learning more from the Department of Labor 

on how they are currently using H-1B anti fraud funds. Furthermore, if the Department has difficulty effectively expending all 

available funds on H-1B fraud due to some roadblock in the law. 

I would hope that we can work together to examine those barriers 

and determine if a change in the law is warranted. 

Finally, the GAO report notes that information sharing between 

the Department of Labor and the Department of Homeland Security is a problem. Barriers in current law might prevent commonsense information sharing for the purpose of combating H-1B 

fraud. For example, in processing H-1B renewals, Citizenship and 

Immigration Services occasionally runs across situations in which 

an employee is not being paid the prevailing wage; however, the 

Department of Labor has concluded it cannot use this information 

in an investigation. I hope that we can take a close look at such 

barriers today and evaluate whether changes to the law are needed 

in order to facilitate information sharing. 

I am hopeful that today’s hearing will provide a forum to examine both the current law and the current enforcement structure at 

the Department of Labor. The reason the Department of Labor has 

a role in H-1B visa approvals is to protect American workers and 

their livelihoods. We must ensure that the Department is fulfilling 

its obligations in this regard. If Congress needs to tweak the current law to facilitate aggressive enforcement of the H-1B program, 

then I hope we can examine such changes as well. 

At this time the Chair recognizes the gentleman from Texas for 

the purposes of an opening—to make an introduction. 

Mr. SMITH. Thank you, Mr. Chairman. I do not have an opening 

statement other than to thank you for having this hearing today. 

What I would like to do, however, is to recognize some friends 

and constituents who traveled all the way to Washington, DC from 

3

Dripping Springs, Texas, and one of the primary reasons they came 

to Washington, DC, Mr. Chairman, is because of a specific interest 

in the subject of immigration. We just had a nice discussion in my 

office, and they are knowledgeable, interested and informed. 

I would like to ask them to stand just so we can express our appreciation for their interest in the subject at hand today. If there 

are more Members here, Mr. Chairman, I would ask our colleagues 

to be on good behavior because of their presence, but since it’s just 

you and me right now, I hope we are in good company. 

Let me ask them to stand and just be recognized. Wonderful. 

Thank you all for being here. 

Thank you, Mr. Chairman. 

Mr. HOSTETTLER. The gentleman yields back his time, and welcome as well from the Chair. 

At this point I would like to introduce our distinguished panel of 

witnesses. 

Dr. Sigurd Nilsen is the Director for Education, Workforce and 

Income Security Issues at the United States Government Accountability Office, where he has served since 1984. He is a national expert on workforce development issues and performance management, who frequently participates in forums where policy alternatives are developed in advance. 

Working for Congress, Dr. Nilsen has been responsible for research on a range of issues related to Federal workforce programs 

and labor policy areas. He is regularly asked to testify before Congress and has appeared before numerous national associations and 

on National Public Radio to discuss these issues. 

Alfred B. Robinson, Jr., was named the Acting Director, Wage 

and Hour Administration, effective June 14, 2004. The Wage and 

Hour Division of the Employment Standards Administration administers and enforces a variety of labor standard statutes that are 

national in scope and enhance the welfare and protects the rights 

of our Nation’s workers. 

Before joining the Department of Labor, Mr. Robinson served in 

the South Carolina House of Representatives and on the board of 

the South Carolina Jobs-Economic, where he focused on job creation and economic development. 

John Miano is the founding chairman of the Programmers Guild 

and currently serves as a director of that organization. He is an expert in computer science, having 18 years in computer software development. Mr. Miano currently operates his own computer consulting firm, Colosseum Builders, Inc., in Summit, New Jersey. 

In December of last year, the Center for Immigration Studies 

published a study authored by Mr. Miano on the wages of H-1B 

workers in the computer programming profession. He has testified 

on the H-1B program before this panel in March of this year. 

Ana Avendano, in her capacity as Associate General Counsel and 

Director of the Immigrant Worker Program at the AFL-CIO, provides legal and technical assistance on matters related to immigration and workers’ rights to labor unions and their members in all 

sectors of the economy, from farm workers to high-tech workers. 

Ms. Avendano served as the United States Worker Representative 

to the International Labor Organization Committee on Migration in 

2004 and on the ILO’s Panel of Experts on Migration in 2005. She 

4

has also served as a consultant to the National Immigration Law 

Center and in the appellate court branch of the National Labor Relations Board. 

I would now ask the witnesses to please stand and raise your 

right hand. 

[Witnesses sworn.] 

Mr. HOSTETTLER. Let the record show that the witnesses have responded in the affirmative. 

At this time, before we turn to our witnesses for opening statements, the Chair recognizes the Ranking Member of the Subcommittee, the gentlewoman from Texas, for purposes of an opening statement. 

Ms. JACKSON LEE. Mr. Chairman, thank you, and I will ask 

unanimous consent that my opening statement in its entirety be 

submitted into the record. 

Mr. HOSTETTLER. Without objection. 

Ms. JACKSON LEE. I will just make a few points. First of all, I 

would like to thank our witnesses for their presence here today, 

and I will acknowledge on the record that the Department of Labor 

is not performing the functions dealing with enforcing labor condition applications under H-1B visas as well as we would like it to 

do so. 

In fact, the GAO study on the H-1B program, which is entitled 

‘‘Labor Could Improve Its Oversight and Increase Information 

Sharing with Homeland Security,’’ speaks to that issue, and I hope 

that this hearing will be enlightened. 

What I will say is that we are in the throes of a dilemma as relates to immigration reform. I would have much preferred that we 

were in the process of a conference to really address the concerns 

of the American people, and that is comprehensive immigration reform that might, in fact, even answer some of these concerns inasmuch as we would have the opportunity to provide legislative teeth 

to enforcement, employer sanctions and enforcement of their responsibilities. 

We would also be able to, if you will, ensure that attestations 

work. We would have the potential of a pathway to citizenship, 

and, yes, of course, we would have another vital aspect of comprehensive immigration reform, and that would be border security. 

But we are here today discussing H-1Bs, which is a limited aspect 

of immigration reform. 

In fact, as I have met with a number of immigrant groups, including, Mr. Chairman, a 60-plus group of stakeholders in Houston, 

Texas, coming from the medical profession, coming from the pros 

and the cons, meaning those against and those for, some sort of immigration reform, advocates, nonadvocates, religious leaders, all 

wanting to get at least a voice on this issue. 

We are here with the H-1B, which certainly has its elements of 

fractures, but it is certainly a legal program, as the J1 visa is, with 

some need for reform. At the same time, if we are going to look at 

the H-1B, and we are not going to have comprehensive immigration 

reform, then we should also be looking at 245(i), the ability to reunite families. 

Then I would say that one of the issues that I would hope would 

come to our attention, and probably additional failures that may 

5

not be spoken about at this particular hearing with the H-1B visas, 

is that it was supposed to create a pool of dollars to assist in training Americans. We thought that the fees utilized by H-1B applicants could then be a partner to Americans who were desirous of 

vital new job training that met the market of today. 

Frankly, I think that we have failed in the utilization of those 

funds. The Department of Labor has failed in educating Americans, 

nonprofits and others about those funds. As we move toward comprehensive immigration reform, I think it is imperative that besides border security and the requisite responsibility and the insight about undocumented individuals who are here in this country 

working and paying taxes, what are we doing for Americans? 

I think it would be very important that as we make our way 

through this process, that we reinstitute the dollars that would be 

used for any pathway to citizenship, any new visas, any new temporary workers that should be invested in job-training dollars for 

Americans. We should say to Americans, when I say that, to citizens who are here—who might be prone to accept the divisive debate that this immigrant system is taking something away from 

them we have an obligation, even in this Committee, Mr. Chairman, to look to utilizing those funds that we might garner from 

any sort of legalization process to invest in our underserved, underutilized urban and rural areas that need investment of job-training 

and job-creation dollars. 

So I will look forward to listening to all of the, if you will, menders of this system, because this is all that I assume these particular witnesses can talk about is mending a system, because the 

overall system of immigration is broken. For that reason I would 

hope that we would expand our reach and begin to look at a comprehensive system. 

By the way, Mr. Chairman, since we worked on a number of 

issues dealing with legal immigration, I think it’s important to note 

that the legal immigration system has its failures. Why does it 

have its failures? Because staff is overworked, underpaid; we are 

losing both documentation and fingerprints. We have people aging 

out, who have been on the list who happen to have been children. 

And so I hope that our voices will be raised for a comprehensive 

response to all of the ills we are looking at before us and will not 

subject ourselves to piecemeal mending, which I believe these witnesses will offer us today. 

With that, I yield back. 

Mr. HOSTETTLER. I thank the gentlewoman. 

The Chair recognizes the gentleman from Texas for purposes of 

an opening statement. 

Mr. GOHMERT. I want to thank the Chairman. I appreciate the 

hearing. These are critical things we are talking about, and I don’t 

want the gentlewoman from Texas to fall out of her chair, but I 

agree with her on so many things she had to say. 

Immigration is broken. It needs some fixing, and these kinds of 

hearings are a step toward doing that. I personally think not only 

should we be looking at H-1B visas and how we need to fix those 

and make them more available as needed, we are hearing from the 

industry more and more, it seems, about the importance of that, 

6

then we hear from the Administration, gee, we need a guest worker 

permit or something of that nature. 

We have things called worker visas, temporary worker visas, and 

it may be that it’s manual labor. We ought to be looking at that 

instead of some additional program, I believe. 

We appreciate your being here, the witnesses today. We appreciate the input that you have given in writing and that you will 

give orally. I would just urge us to keep moving on in this direction, Mr. Chairman, with H-1B visas and also other visas, because 

those of us who believe that the real cure will be securing the borders, and I do say borders, avenues of entry, so we know who is 

coming in, and that we can manage it effectively—because until we 

can secure our borders, we can have all the temporary visas, guest 

worker visas, all those things, it won’t make a hill of beans difference because people are already coming and going, working, 

leaving. The first step is to get the border secure, and then these 

will mean a whole lot more than they do right now. 

Thank you, Mr. Chairman. 

Mr. HOSTETTLER. I thank the gentleman. 

The Chair recognizes the gentleman from California for purposes 

of an opening statement. 

Mr. ISSA. Thank you, Mr. Chairman. I want to thank you for 

holding this important hearing. The H-1B and perhaps the H-2A 

are perhaps the best examples of what we should be doing in theory and what we are not doing in reality. 

I hope today we go a long way toward taking the H-1B and getting it to where it meets our real needs, getting rid of an artificially 

low cap, but, at the same time, finding ways to get rid of the exportation that is going on, the jury-rigging, the very question of 

whether or not an employee is needed, because without reforming 

farm workers, high-tech and other legitimate, needed worker programs to where they function, all the security in the world is still 

going to leave us with no legitimate way to bring in the workers 

that will be an addition to our economy. 

I would like to associate myself with the gentleman from Texas, 

because, in fact, we do have to secure the border, but we also have 

to make these work. Every potential guest worker program that we 

would ever go into would be modeled substantially on these failed 

programs. If we can’t get the high-tech workers that we need, we 

can’t make sure that we actually need them, then where are we to 

go when we say that we want to explore potentially millions of 

needed jobs in this country, needed slots in this country, presently 

occupied by undocumented workers? In fact, there’s no hope if we 

can’t manage these programs that we will be able to manage a 

much broader program. 

With that, I yield back. 

Mr. HOSTETTLER. I thank the gentleman. 

I would now turn to the witnesses for your testimony. Dr. Nilsen, 

we will begin with you. You will see a series of lights. The lights 

essentially will let you know when the testimony time is up with 

the red light, calling for termination in about 5 minutes. If you 

could sum up your remarks, without objection, your full written 

testimony is made a part of the record. If you can summarize that 

7

as close to 5 minutes as you could, it would be very helpful. Thank 

you very much. 

Dr. Nilsen. 

TESTIMONY OF SIGURD L. NILSEN, Ph.D., DIRECTOR FOR EDUCATION, WORKFORCE, AND INCOME SECURITY ISSUES, 

UNITED STATES GOVERNMENT ACCOUNTABILITY OFFICE 

Mr. NILSEN. Thank you, Mr. Chairman. 

Mr. Chairman and Members of the Subcommittee, I am pleased 

to be here today to assist you in your oversight of the H-1B immigrant visa program. I will discuss the results of a study being 

issued today that you, along with Ranking Member Jackson Lee 

and Representative Smith, requested to first describe how the Department of Labor carries out its H-1B responsibilities and, second, 

to assess how well labor works with other agencies involved in enforcing H-1B program requirements. 

The administrative structure of the program is complex, involving parts of four different agencies. Labor takes the initial application and is also responsible for enforcing the rights of H-1B workers. Homeland Security approves the petition for which the State 

Department then issues a visa, and the Justice Department handles complaints from displaced U.S. workers. 

First, with regard to Labor’s role, we found that Labor’s oversight of the H-1B program is limited, even within the scope of its 

existing authority. By law, Labor’s review of employers’ H-1B applications is limited to identifying omissions and obvious inaccuracies. 

Labor reviews almost all applications electronically by subjecting 

them to data checks and certifies or denies them within minutes. 

Of the more than 960,000 applications that Labor reviewed from 

January of 2002 through September of 2005, 99.5 percent were certified. The Labor system does not consistently identify all obvious 

inaccuracies. For example, as the Chairman noted, we found 3,229 

applications that were certified even though the wage rate on the 

application was lower than the prevailing wage rate listed on that 

application. 

Additionally, Labor only looks at the application’s employer identification number to make sure that it has the correct number of 

digits and the number does not appear on the list of employers who 

are ineligible to participate in the program. However, we found 

nearly 1,000 certified applications with invalid employer identification prefixes. Such errors can be indicative of a fraudulent application. 

Labor enforces H-1B program requirements primarily by investigating complaints filed against employers. H-1B workers or others who believe an employer has violated program requirements 

can file a complaint with Labor’s Wage and Hour Division, which 

received over 1,000 complaints from fiscal year 2000 through 2005. 

Over this period H-1B complaints and violations and corresponding 

employer penalties increased. In 2000, employers paid $1.2 million 

in back wages to 226 workers. By 2005, back-wage penalties quadrupled to $5.2 million to over 600 workers. 

Next, I want to discuss the coordination between Labor and 

Homeland Security. Homeland Security reviews Labor’s certified 

application as part of the adjudication process. However, it lacks 

8

the ability to easily verify whether employers have submitted petitions for more workers than it originally requested on the application because its data system does not include Labor’s application 

number. As a result, employers can potentially use the application 

for more workers than they were certified to hire. 

In addition, during the process of reviewing employers’ petitions, 

Homeland Security may find evidence the employer is not meeting 

the requirements of the H-1B program. But even if Homeland Security forwarded the information to the Department of Labor, current law precludes the Wage and Hour Division from using this information to initiate an investigation of the employer. 

The Department of Justice is responsible for pursuing charges 

filed by U.S. workers who allege that an H-1B worker was hired 

in their place. Most of the 101 investigations started by Justice 

from 2,000 through 2005 were found to be incomplete, withdrawn, 

untimely, dismissed or investigated without finding a violation. Of 

the 97 investigations closed, Justice found discriminatory conduct 

in six cases and assessed $7,200 penalties in three of the six cases, 

all in 2003. In the other three cases, the actions appeared to be inadvertent, and no penalties were assessed. 

In conclusion, we think that Congress should consider eliminating the restriction on using application and petition information 

submitted by employers to initiate an investigation and direct 

Homeland Security and Labor to share information to investigate 

whether an employer is fulfilling its H-1B responsibilities. 

Further, we recommend that Homeland Security include Labor’s 

application case number in its new information system. Homeland 

Security, incidentally, agreed with that recommendation. 

Finally, we recommend that Labor strengthen its oversight of 

employers’ applications by improving its procedures for checking 

obvious inaccuracies, including better procedures for checking for 

wage inaccuracies and invalid employer identification numbers. 

Labor took issue with this recommendation in our report, saying 

the benefit of using more stringent measures was unclear. However, we are concerned that the errors we uncovered by our cursory 

review may be indicative of additional problems. 

Mr. Chairman, this concludes my prepared statement. I would be 

happy to respond to questions you or other Members of the Subcommittee may have at this time. 

Mr. HOSTETTLER. Thank you, Dr. Nilsen. 

[The prepared statement of Mr. Nilsen follows:]

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PREPARED STATEMENT OF SIGURD R. NILSEN


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Mr. HOSTETTLER. Mr. Robinson. 

TESTIMONY OF ALFRED B. ROBINSON, JR., ACTING DIRECTOR, 

WAGE AND HOUR ADMINISTRATION, EMPLOYMENT STANDARDS ADMINISTRATION, UNITED STATES DEPARTMENT OF 

LABOR, ACCOMPANIED BY BILL CARLSON, ADMINISTRATOR, 

OFFICE OF FOREIGN LABOR CERTIFICATION, EMPLOYMENT 

TRAINING ADMINISTRATION 

Mr. ROBINSON. Thank you, Mr. Chairman and Members of the 

Subcommittee. I am pleased to appear before you today to discuss 

the H-1B provisions of the Immigration and Nationality Act. The 

Labor Department is responsible for H-1B—the responsibilities of 

the Labor Department for H-1B is divided between two agencies, 

the Employment Training Administration and the Wage and Hour 

Division of the Employment Standards Administration. Today I am 

joined by Bill Carlson, the Administrator of the Office of Foreign 

Labor Certification within ETA. 

The mission of Wage/Hour is to promote and achieve compliance 

with labor standards to protect and enhance the welfare of the Nation’s workforce. Wage and Hour is responsible for administering 

and enforcing some of our Nation’s most comprehensive labor laws, 

including the H-1B worker protections. 

As noted earlier, the focus of today’s hearing is a recently issued 

report from GAO on the H-1B visa program. In this report, GAO 

highlights the effective work that Labor performs in this program 

and outlines the respective responsibilities of the Departments of 

Labor, Homeland Security and State. While GAO made no formal 

recommendations for Wage and Hour, it raised two issues for Congress to consider that would affect Wage and Hour. 

If Congress implements GAO’s recommendations, the result 

would be an increase in H-1B enforcement by Wage and Hour. We 

fully support this outcome and agree with GAO’s recommendations. 

Moreover, we believe consideration should be given to additional 

changes to the program to further enhance Wage and Hour’s ability 

to ensure the integrity of the H-1B program, enforce employers’ obligations and to protect U.S. workers and H-1B workers. 

As noted by the Chairman, Wage and Hour currently initiates an 

H-1B investigation under four different authorities, aggrieved 

party, specific credible source, willful violator and secretarial certification. As you are aware, our written statement provides more 

details on each one of these limited authorities enabling Wage and 

Hour to initiate an investigation. 

As part of the application process, an H-1B employer is assessed 

a $500 fraud fee that is divided equally between the Departments 

of Labor, Homeland Security and State. Wage and Hour’s portion 

of this fee totals approximately $30 million annually. However, the 

statute limits DOL’s use of this money only to the enforcement of 

the H-1B program. 

Given the statutory restrictions on its investigative authority, 

the Department of Labor estimates that it will continue to spend 

approximately $4 to $5 million annually for H-1B enforcement and 

education. If Congress were to change the statute to include broader H-1B investigative authority, Wage and Hour could significantly 

increase its enforcement activities. 

30

Wage and Hour has taken additional steps to improve enforcement of the H-1B program and its ability to detect fraud. For example, we have updated the H-1B chapter of our investigators’ 

manual to encompass recent changes to the statute and to the regulations. Also, Wage and Hour is conducting nationwide training 

for its investigators and managers as well as attorneys from the 

Office of the Solicitor. 

As part of its compliance assistance and educational efforts, we 

have implemented a number of activities including releasing 26 H1B fact sheets that are available on our Website and distributing 

H-1B worker rights cards. The updated procedures, investigator 

training and new educational tools will protect domestic and foreign workers against fraud and enhance the integrity of the program. 

Finally, assuming Congress were to expand H-1B enforcement 

authority of Wage and Hour, as the GAO recommends, we would 

still expect there to be a surplus of H-1B fraud fee funds because 

of the current statutory language that limits its use solely to H-1B 

enforcement. 

The Department believes a modification to the statute would provide greater flexibility to fully utilize the antifraud money. Such a 

change in the statutory language would supplement overall enforcement activity to further combat fraud and protect American 

workers. 

The effect of a change in the statutory language would permit 

Wage and Hour to maintain a strong and viable H-1B enforcement 

and compliance assistance program, and simultaneously to 

strengthen enforcement programs and activities that focus on lowwage industries likely to employ foreign workers. 

Mr. Chairman, this concludes my statement, and I, along with 

Mr. Carlson, would be pleased to respond to any questions from 

Members of the Subcommittee. Thank you. 

Mr. HOSTETTLER. Thank you, Mr. Robinson. 

[The prepared statement of Mr. Robinson follows:]

PREPARED STATEMENT OF ALFRED B. ROBINSON, JR. 

I. INTRODUCTION

Mr. Chairman and Members of the Subcommittee: 

I am pleased to appear before you today to discuss the H-1B labor provisions of 

the Immigration and Nationality Act (INA). Responsibilities for H-1B within the Department of Labor are divided between two agencies, the Employment Training Administration (ETA) and the Wage and Hour Division (WHD) of the Employment 

Standards Administration (ESA). I am joined today at this hearing by Mr. Bill Carlson, who is Administrator of the Office of Foreign Labor Certification within ETA. 

The mission of the WHD is to promote and achieve compliance with labor standards to protect and enhance the welfare of the Nation’s workforce. WHD is responsible for administering and enforcing some of our nation’s most comprehensive labor 

laws, including the minimum wage, overtime, and child labor provisions of the Fair 

Labor Standards Act (FLSA); the Family and Medical Leave Act; the Migrant and 

Seasonal Agricultural Worker Protection Act; the prevailing wage requirements of 

the Davis-Bacon Act and the Service Contract Act; and the worker protections provided in several temporary visa programs. 

The Government Accountability Office (GAO) recently issued a report outlining 

WHD’s responsibilities under the H-1B statute. GAO made no formal recommendations for WHD, however, GAO raised two issues for Congress to consider that would 

have a direct effect on WHD. GAO recommended that Congress consider (1) eliminating the restriction on using application and petition information submitted by 

employers as the basis for initiating an investigation, and (2) directing Homeland 

31

Security to provide Labor with information received during its adjudication process 

that may indicate an employer is not fulfilling its H-1B responsibilities. If Congress 

implements GAO’s recommendations, the result will be an increase in H-1B enforcement for WHD. We fully support this outcome and therefore agree with GAO’s recommendations. Moreover, we believe consideration should be given to additional 

changes to the program to further enhance WHD’s ability to reduce fraud, enforce 

employer’s obligations, and protect H-1B and U.S. workers. 

The H-1B statutory provision that we will discuss today appears in Section 212(n) 

of the INA (8 U.S.C. 1182(n)). This section outlines the H-1B Labor Condition Application process and the related labor enforcement requirements. The program was 

initiated in 1990 and the statute has been amended a number of times. The first 

major revision was pursuant to the American Competitiveness and Workforce Improvement Act of 1998 (ACWIA) and the most recent was pursuant to the H-1B Reform Act of 2004, which re-enacted a number of provisions that had sunset and 

made other changes to the law. 

II. OVERVIEW

The H-1B statute establishes an annual ceiling on the number of workers issued 

H-1B visas. This ceiling is currently set at 65,000. As you know, the FY 2007 cap 

has already been reached. The INA defines the scope of eligible occupations, specifies the qualifications for H-1B status, requires an employer to file a Labor Condition Application (LCA), which establishes conditions of employment, and establishes 

an enforcement system to determine compliance with the LCA requirement. 

The H-1B program requires the coordination of multiple federal agencies. The Department of Labor’s ETA approves the LCA, the Department of Homeland Security 

(DHS) approves the H-1B visa classification, and the Department of State (DOS) 

issues the visa. WHD enforces the worker protection provisions. In addition, the Department’s Office of the Inspector General (OIG), has investigative authority with 

respect to certain types of fraud within the H-1B program, such as false statements. 

The OIG issued audit reports on H-1B in 1996 and 2003. 

WHD recognizes that its enforcement of the H-1B program is important to not 

only protect the integrity of the program, but also to ensure that similarly employed 

U.S. workers are not adversely affected by the H-1B workers’ presence. 

A filing fee, in addition to the base fee for a petition to classify an alien as an 

H1-B, is charged to most employers. Qualifying educational establishments and research organizations are excluded. This fee is $750 for employers with 25 or fewer 

full time equivalent workers and $1,500 for employers with more than 25 workers. 

An additional $500 anti-fraud fee is assessed on most H-1B employers. Restrictions 

on the use of the proceeds from the anti-fraud fee will be discussed later in this testimony. 

III. THE APPLICATION PROCESS

Every employer is required to submit a completed LCA to ETA. The LCA outlines 

the wages, duties, and working conditions of the job. The employer must sign the 

LCA. By signing the LCA the employer attests that the ‘‘facts’’ specified on the LCA 

are true and accurate. The employer must accurately specify the following information:

• Employer Information (firm name, employer identification number (EIN), address, phone);

• Rate of Pay (amount, salary/hourly, full/part time);

• Period of employment;

• Occupation information (number of H-1Bs sought, their occupation code, and 

job titles);

• Work locations (including additional or subsequent locations); and

• Prevailing Wage (amount, source, date of rate) for all work locations listed.

The statutory language mandates that ETA limit its review of LCAs to ensure 

that they are complete, not obviously inaccurate, and that the employer has not 

been debarred. In accordance with those requirements, ETA does not determine the 

validity of the information submitted on the LCA. ETA is mandated by the statute 

to complete the processing of an LCA within seven (7) days. 

The WHD enforces the provisions of the LCA. Some of the provisions, such as the 

employer information, wages, period of employment, job classification, work locations, and prevailing wage data, represent ‘‘material facts.’’ An employer that knowingly provides incorrect information on the LCA or shows reckless disregard for the 

truth of the information has committed a willful misrepresentation. For purposes of 

32

H-1B enforcement, WHD considers a willful misrepresentation as fraud and will cite 

a violation and will assess penalties. 

On the LCA the employer must agree to abide by (or ‘‘comply with’’) the following 

Labor Condition Statements:

• Wages: The employer will pay the higher of the actual or prevailing rate, 

which includes offering benefits on the same basis as offered to U.S. workers. 

The actual wage is based on the employer’s own pay scale or system. The prevailing wage rate must be no less than the minimum wage required by Federal, State, or local law. The prevailing wage is typically the weighted average 

of wages paid to similarly employed individuals in the area of intended employment.

• Working Conditions: The employer will provide working conditions (including 

hours, shifts, vacations, and seniority based benefits) which will not adversely 

affect similarly employed U.S. workers.

• Strike, Lockout or Work Stoppage: There is no strike or lockout in the same 

occupational classification on the LCA at the place of employment. These provisions also require that:

• ETA will be notified if a strike/lockout occurs; and

• No H-1B will be placed at a site with a strike/lockout.

• Notification of the LCA filing to the union or workers by:

• Posting a copy of the LCA for 10 days at 2 conspicuous locations at the 

place of employment; or

• Posting a copy of the LCA electronically.

In addition to the above Labor Condition Statements, an H-1B Dependent Employer or Willful Violator must agree to the following recruitment and non-displacement of U.S. workers provisions:

• An employer will make good faith efforts to recruit U.S. workers;

• An employer will offer the job to an equally or better qualified U.S. applicant 

(enforced by Department of Justice);

• An employer will not displace a similarly employed U.S. worker within 90 

days before or after an H-1B visa petition is filed; and

• An employer must inquire of a secondary employer whether an H-1B worker 

placed with the secondary employer will displace a similarly employed U.S. 

worker.

An H-1B Dependent Employer is defined under the statute by a specific formula. 

As a general matter, an employer that has 15% or more of its workforce employed 

as H-1B workers is an H-1B Dependent Employer. 

An H-1B Willful Violator is defined as an employer who, in a final agency action, 

was determined to have committed a willful failure or a willful misrepresentation 

of a material fact after October 21, 1998, and within 5 years of the filing of the LCA. 

IV. Compliance 

Compliance with the H-1B provisions requires an employer to abide by the provisions of the LCA. One of the most basic provisions is an employer’s responsibility 

to pay the H-1B worker properly. 

An employer’s obligation to pay an H-1B worker commences on the earliest of the 

following events:

• The H-1B worker ‘‘enters into employment’’ with the sponsoring employer, 

which occurs when the worker first makes him/herself available for work or 

otherwise comes under the control of the employer, such as reporting for orientation or studying for a licensing exam;

• No later than thirty (30) days after the H-1B worker is first admitted into 

the U.S. pursuant to the H-1B petition, whether or not the H-1B worker has 

‘‘entered into employment’’;

• No later than sixty (60) days after the date the H-1B worker becomes eligible 

to work for the employer (the approval date found on the United States Citizenship and Immigration Service (USCIS) Notice of Action, Form I-797), 

whether or not the H-1B worker has ‘‘entered into employment’’; or

• For an H-1B worker already in the United States, on the date of the filing 

of the Petition for a Nonimmigrant Worker (including the Forms I-129, the 

H Classification Supplement, and the H1-B Data Collection and Filing Fee 

Exemption Supplement) by the sponsoring employer under the H-1B portability provisions.

33

The employer is obligated to pay the required wage rate for all non-productive 

time caused by:

• conditions related to employment;

• lack of work;

• lack of permit;

• studying for licensing exam; or

• employer-required training.

If the non-productive time is the result of a decision by the employer, the full required wage rate must be paid. A worker cannot be ‘‘benched’’ by the employer without receiving the required wage rate. 

If the H-1B worker is not available to work for reasons unrelated to employment, 

such as voluntary absence for pleasure or an absence due to illness, then the employer is not required to pay. If the non-productive time is the result of a decision, 

made freely by the worker and without coercion by the employer, the required wage 

rate need not be paid unless it is payment under a required benefit plan—for example, paid vacation or sick leave. 

Full-time workers must be paid the full amount of the required wage rate and 

part-time workers must be paid for at least the number of hours indicated on the 

petition for a nonimmigrant worker filed with USCIS (I-129) and referenced on the 

LCA. If the I-129 indicates a range of hours, the worker must be paid for the average number of hours normally worked. 

The employer’s wage obligation ceases only after a bona fide termination of employment. Once such termination takes place, the employer is required to notify 

USCIS that the employment relationship is canceled. A worker may not be terminated and then re-hired under the same petition. The employer is liable for the reasonable costs of the return transportation for the H-1B worker if the employer prematurely terminates the employment. 

‘‘Wages’’ are specifically defined in the regulations. The required wage must be 

paid to the worker, cash in hand, free and clear, when due, and no less often than 

monthly. Deductions which reduce the worker’s wage to below the required wage 

rate may be taken only if they are required by law (i.e. taxes), are reasonable/customary (i.e. insurance, savings, or retirement) or are authorized by a collective bargaining agreement. The deductions must be voluntarily authorized in writing by the 

worker, and be principally for the benefit of the worker. They may not exceed the 

fair market value or actual cost of a provided benefit (lodging, transportation, goods, 

for example) or the garnishment limits. Deductions may not be taken to recoup an 

employer’s business expense, as a penalty for early cessation of employment, to recover the USCIS petition filing fees, to cover any additional costs incurred in the 

petition process or to recover the $500 Anti-Fraud Fee. 

An H-1B worker may not be assessed a penalty if he or she ceases employment 

with the employer before the contract period ends. The employer may, however, seek 

liquidated damages from the H-1B worker to recoup damages caused by the worker’s early departure. The employer may not withhold the last paycheck of the H1B worker to recover the liquidated damages. 

H-1B Dependent or Willful Violator employers are prohibited from terminating a 

U.S. worker in an equivalent position 90 days before and after the filing of the H1B petition. In addition, if an H-1B Dependent or Willful Violator employer intends 

to place the H-1B worker with a secondary employer, then the H-1B employer must 

inquire from the secondary employer whether the secondary employer has terminated, or intends to terminate, a U.S. worker from an essentially equivalent job 90 

days before or after the placement of the H-1B worker. 

As I have noted, an H-1B Dependent or Willful Violator employer has additional 

responsibilities dealing with recruitment and hiring. The H-1B Dependent or Willful 

Violator employer must take good faith steps to recruit U.S. workers before an LCA 

or petition is filed. The recruitment must be done using ‘‘industry wide’’ standards; 

i.e. recruitment standards common or prevailing in the industry. An employer’s recruitment methods must include, at a minimum, internal and external recruitment 

and at least some active recruitment. If a better or equally qualified U.S. worker 

applies for the job, then the employer must offer the job to the U.S. worker. 

The additional provisions for H-1B Dependent or Willful Violator employers do not 

apply to ‘‘exempt’’ H-1B workers. An H-1B worker may be considered an ‘‘exempt’’ 

worker if he or she makes at least $60,000 a year; or has the equivalent of a master’s degree or higher in a specialty related to the H-1B employment. 

Finally, no employer may retaliate against any current, former, or prospective 

worker for asserting H-1B rights or cooperating in H-1B enforcement. This anti-disVerDate 0ct 09 2002 14:07 Nov 30, 2006 Jkt 000000 PO 00000 Frm 00037 Fmt 6633 Sfmt 6621 G:\WORK\IMMIG\062206\28386.000 HJUD1 PsN: 28386
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crimination requirement includes intimidation, threats, restraint, coercion, blacklisting, discharge or any other form of discrimination. 

V. RECORDS

The employer must make the LCA and supporting documentation available to the 

public within one working day of the filing. A public access file must be available 

to anyone who requests it. It must be maintained at the employer’s principal place 

of business in the U.S., or at the place of employment. The access file must include, 

for example, the LCA, wage rate documentation, actual wage system, and the summary of employee benefits. 

In addition to the information which must be available in the public access file, 

during a WHD investigation the agency may require for inspection a complete petition package, payroll and basic records, such as name, address, social security number, occupation of workers, benefit plans, and a record of dependency determination. 

VI. ENFORCEMENT

WHD has the following four types of H-1B enforcement authority (the latter two 

were added to the INA in 2005 and were similar to authority that had sunset in 

2003): 

Aggrieved Party 

The WHD may conduct an investigation pursuant to a complaint received from 

an aggrieved party, if there is reasonable cause to believe a violation occurred. An 

aggrieved party is a person or entity whose operations or interests are adversely affected by the employer’s alleged non-compliance with the LCA. Also, the WHD has 

consistently defined an aggrieved party to include the State Department. In order 

for WHD to accept the complaint, the aggrieved party must allege a violation of the 

H-1B program that occurred within 12 months of the complaint. When WHD receives a complaint from an aggrieved party indicating a violation of the H-1B program, which occurred within 12 months of the alleged violation, an investigation 

must be conducted and a determination issued. All investigations prior to April 2006 

were conducted pursuant to this enforcement authority. 

Willful Violator 

The WHD may reinvestigate an employer that previously has been determined by 

the Labor Department to have committed a willful failure to meet a condition specified on the LCA or willfully misrepresented a material fact in the LCA within the 

last five years. WHD maintains a list of these willful violators, available on the 

WHD Web page located at http://www.dol.gov/esa/regs/compliance/whd/

FactSheet62/whdfs62S.htm. In FY2006, WHD will conduct investigations under this 

authority for the first time. It is important to note that most employers that have 

committed a willful violation were subject to a civil monetary penalty (CMP) and 

debarment. It has been WHD’s experience that in many instances these employers 

are no longer in business, making it difficult to utilize this authority. 

Credible Source 

The WHD may conduct an investigation based on credible information from a 

known source, if the information provides reasonable cause to believe that the employer has willfully failed to meet certain LCA conditions, has engaged in a pattern 

or practice of failures to meet such conditions, or has committed a substantial failure to meet such conditions that affects multiple workers. This information must 

be received within 12 months after the date of the alleged violation. This use of this 

authority, however, has two explicit statutory limitations; specifically the information:

(1) Must originate from a source other than an employee of the Department of 

Labor or be ‘‘lawfully obtained by the Secretary of Labor in the course of 

lawfully conducting another Department of Labor investigation under this 

Act (INA) or any other Act;’’ and

(2) May not include information submitted by the employer to DOL or DHS as 

part of the H-1B process.

Secretary’s Certification 

The WHD may initiate an investigation if the Secretary of Labor personally certifies that there is reasonable cause to believe that a violation has occurred and personally approves commencement of an investigation. This authority may be exercised only for reasons other than completeness of the LCA and obvious inaccuracies 

by the employer. 

35

VII. DETERMINATION OF FINDINGS

When the investigation is complete, WHD issues a determination letter offering 

the employer and interested parties an opportunity to appeal the findings. The employer or interested party has 15 days from the date of the letter to appeal the determination and request an administrative hearing. The violations cited may include 

a misrepresentation of a material fact, a failure to meet an LCA condition, or a failure to comply with the regulations. There are 16 separate violations listed in the 

regulations at 20 CFR 655.805(a), which are classified by the WHD as a simple failure, a substantial failure, or a willful failure. The level of gravity of the violation 

affects whether CMPs will be assessed and their amount, and whether the employer 

may be debarred and for how long. 

The H-1B Visa Reform Act of 2004 amended the law to preclude the WHD from 

finding a violation for a ‘‘technical’’ or ‘‘procedural’’ failure, if there was a good faith 

attempt to comply, the employer corrects the failure within 10 business days after 

DOL or another enforcement agency has explained the failure, and there is no pattern or practice of willful violations. WHD will carefully evaluate the employer’s intent to comply when making decisions concerning this defense. It is important that 

an employer realize that immediate correction of the violation is the most important 

factor to this defense. 

The H-1B Visa Reform Act of 2004 also provided that an employer found to have 

violated the prevailing wage requirements during the course of an investigation will 

not be assessed fines or penalties if the employer can establish that the manner in 

which the wage was calculated was consistent with industry standards and practices. 

If a violation is found by WHD, then the employer will be required to remedy the 

violation. Remedies may include the payment of back wages or fringe benefits, the 

assessment of CMPs, a recommendation to USCIS that the employer be debarred, 

and other actions deemed appropriate to achieve compliance with the H-1B program 

requirements. 

The determination letter issued by WHD will list both the specific violations and 

the remedies for those violations. Employers must abide by the determined remedy 

and comply with H-1B provisions in the future. 

VIII. DIRECTED ENFORCEMENT AUTHORITY

As mentioned above, WHD has four distinct and limited enforcement authorities: 

aggrieved party, willful violator, credible source, and the Secretary’s certification. 

This is the only program WHD administers and enforces that has such restrictions 

on its enforcement authority. 

Prior to April 2006, WHD’s H-1B enforcement was essentially a complaint-based 

program. Previously, WHD did not have a specific program to reinvestigate past 

willful violators. Our experience showed that, of the few employers that were found 

to be willful violators, many chose to go out of business subsequent to their debarment (approximately 50% in FY 2006), and thus, could not be reinvestigated. The 

current list of willful violators is approximately 50 employers nationwide. In April 

2006, as acknowledged by the GAO report, WHD began the process of randomly reinvestigating willful violators. 

As noted above, the credible information source investigation (added to the INA 

in 2005) relies on someone other than a DOL/ETA or DHS employee coming forward 

with information suggesting that an employer has committed a willful failure, a pattern or practice of failures, or has substantially failed to meet a condition of the 

LCA which affects multiple workers. To date, no person has been able to present 

enough information to warrant opening an investigation under this authority. 

Finally, the Secretary’s authority (added to the INA in 2005) requires the Secretary to personally certify that she believes reasonable cause exists for an investigation. Again, the authority is limited to cases that involve violations other than 

incompleteness or obvious inaccuracies by the employer. This authority has never 

been exercised. 

GAO suggests that Congress consider (1) eliminating the restriction on using application and petition information submitted by employers as the basis for initiating 

an investigation, and (2) directing Homeland Security to provide Labor with information received during its adjudication process that may indicate an employer is not 

fulfilling its H-1B responsibilities. We believe that these changes would increase 

WHD’s enforcement ability, but we defer to DHS as to whether it is necessary or 

appropriate statutorily to direct DHS to provide this information to DOL. Although 

we support GAO’s recommendations, it should be recognized that GAO’s suggestions 

would maintain the current four distinct, yet limited, enforcement authority provisions. Congress may want to consider instead, replacing this complex mixture of enVerDate 0ct 09 2002 14:07 Nov 30, 2006 Jkt 000000 PO 00000 Frm 00039 Fmt 6633 Sfmt 6621 G:\WORK\IMMIG\062206\28386.000 HJUD1 PsN: 28386
36

forcement authorities with a broad grant of authority similar to that found in the 

FLSA. The FLSA authorizes the WHD to ‘‘investigate such facts, conditions, practices or matters as . . . necessary or appropriate to determine whether’’ a violation 

has occurred. 

IX. ANTI-FRAUD FEE

As previously mentioned, the anti-fraud fee is $500 per petition. The $500 is divided equally between DOL, DHS, and DOS. WHD’s portion of this fee totals approximately $30 million annually. However, the statute limits DOL use of this 

money only to enforcement of INA Section 212(n) (describing H-1B). Without unrestricted investigative authority, the Department estimates that it will continue to 

spend approximately $4.0 million annually for H-1B enforcement. If Congress 

changes the statute to include broader H-1B investigative authority, it would be reasonable to expect WHD to significantly increase current H-1B enforcement activities. 

WHD takes very seriously its responsibility to enforce the H-1B program’s requirements. Over the last three years, WHD averaged between 130 and 170 completed H-1B cases per year. Approximately 75 percent of all complaints resulted in 

a violation. In FY 2005 alone, WHD collected over $3.3 million for more than 500 

workers. Among the violations found in FY2005, there were 20 in which the agency 

determined that an employer misrepresented a material fact. 

As for how WHD spends these funds, WHD determines the amount to offset with 

H-1B funds each quarter based on the percentage of H-1B enforcement time compared to total enforcement time. For example, if 2 percent of enforcement time is 

H-1B related during the first quarter, then WHD offsets 2 percent of our obligations 

from the first quarter with H-1B funds. 

Recently, WHD increased its H-1B compliance assistance and educational activities. It currently is conducting a nationwide H-1B training program for WHD investigators and managers, as well as attorneys in the Office of the Solicitor. The training will result in greater enforcement, heightened awareness of fraud and an increase in H-1B compliance assistance activity, all of which should result in additional complaints for WHD to investigate and incidences of fraud to report to other 

authorities. In preparation for this training, WHD recently released on its Website 

26 H-1B Fact Sheets, which are part of the larger compliance assistance program. 

The program includes the recently issued H-1B chapter for WHD’s Field Operations 

Handbook, H-1B worker rights cards, a PowerPoint presentation, seminars to the 

public, and a series of H-1B press releases. In addition, WHD is an active member 

of the Immigration Benefit Fraud Working Group, which includes other Federal departments, such as the DOS and DHS. 

Even if Congress were to expand WHD’s H-1B enforcement authority as GAO recommends, given current statutory language limiting the use of the funds solely to 

H-1B enforcement, we would expect a surplus of H-1B fee money. The Department 

believes a modification in INA Section 286(v)(2)(C) would provide greater flexibility 

to fully utilize the anti-fraud money. Such a change in the statutory language would 

help to supplement overall enforcement activity to further combat fraud and protect 

American workers. The effect of the language that the Department proposes, along 

with similar improvements to the fraud fee provision proposed by DOS and DHS 

with respect to their shares of the fraud fee, would maintain a strong and viable 

H-1B enforcement and compliance assistance program while, at the same time, 

strengthening enforcement programs and activities that focus on low-wage industries likely to employ foreign workers. 

Mr. Chairman, that concludes my statement and I will be pleased to respond to 

questions from the Members of the Subcommittee.

Mr. HOSTETTLER. Mr. Miano, am I pronouncing that correctly? 

Mr. MIANO. Yes, you are. 

TESTIMONY OF JOHN M. MIANO, DIRECTOR,

PROGRAMMERS GUILD 

Mr. MIANO. Thank you, Mr. Chairman and Members of the Committee. 

I have been following the H-1B visa program closely for 12 years 

now, and what has struck me the most over these years is how little protection is given to U.S. workers and how little has been done 

to fix the problems. 

37

The only real protection for U.S. workers in the H-1B program 

is the annual quota. The quota serves the important function of 

limiting the amount of damage the H-1B program can cause U.S. 

workers. 

These are some of the problems that I see with the H-1B visa 

program. The most odious of these is the use of H-1B workers to 

directly replace U.S. workers, often with employers requiring U.S. 

workers to train their foreign replacements to collect severance. 

This Committee passed a bill in 1978 to ban this practice. Unfortunately, the provision appeared before it came to the floor for a vote. 

Employers replacing third parties have no liability whatsoever 

under the law, so the practice continues. The prevailing wage requirements in the H-1B program is simply ineffective. There is no 

way the prevailing wage requirements can protect U.S. workers 

when employers are allowed to use wage claims that do not reflect 

the actual prevailing wage in the industry. 

There is poor data collection, sharing and reporting. We have no 

idea how many H-1B workers are in the country, what they are 

doing or even how many H-1B visas are being approved each year. 

There is no active monitoring of the H-1B program. There is no 

mechanism of auditing or following up on suspicious activity, and 

there is no limit to the number of H-1B visas a single employer 

may have. In the computer industry the majority of H-1B visas are 

going to contract labor companies or body shops. Instead of filling 

jobs where Americans cannot be found, these workers are in direct 

competition with U.S. workers for actual employment. 

However, the biggest problem with the H-1B program is that it 

has been designed to inhibit enforcement the bizarre restrictions 

imposed upon the Department of Labor that I have noted in my 

written statement, ensure the law cannot be enforced. Quite simply, the Department of Labor has an impossible task. 

However, even where the Department of Labor has the power to 

investigate, they do not seem to be eager to do so. Recently I submitted a complaint against one of the largest users of H-1B visas, 

alleging that it was not complying with a requirement to recruit 

U.S. workers in good faith. As evidence of this, I submitted 130 job 

postings from the company that stated only H-1B workers could 

apply or that they preferred H-1B workers. 

Department of Labor’s response to this complaint was that they 

could not investigate, because this was insufficient evidence of a 

violation. If 130 job postings telling U.S. workers not to apply is insufficient evidence to investigate whether a company is not meeting 

the good faith recruitment requirement, what is? 

For a number of the largest H-1B-dependent employers, I can 

find no evidence of them recruiting in the U.S. whatever. I cannot 

even imagine what kind of evidence the Department of Labor 

would require in order to investigate one of these companies. 

Over the past year, I have seen a dramatic change in the way 

employers approach the H-1B program. Abuse that used to go on 

behind the scenes now takes place out in the open. Apparently 

word has gotten out that there is no H-1B enforcement. 

For example, people in the computer industry have always 

known that there are companies that simply do not hire Americans 

for technical positions, and that these companies rely entirely on 

38

visa programs for staffing. However, this practice used to take 

place mainly under the table. 

In previous years I never found more than a small number of ads 

asking only for H-1B workers where the employers slipped up and 

documented their illicit recruiting practices. In the past 6 weeks, 

I have found over 1,500 ads requesting H-1B workers only from 

350 employers. 

There are now Web sites that are virtually visa bazaars; companies don’t advertise jobs, they advertise visas. The H-1B program 

allows people to start a company in their basement and import H1B workers. The 2003 LCA data contains a few of these cottage industry H-1B operations, while the 2005 data shows many of them 

up and running. 

In addition, this year I have found a large number of H-1B employers that have never filed an LCA before, so the practice clearly 

is growing. I suspect that many of these basement visa operations 

are simply selling visas, and that the H-1B workers disappear once 

they arrive in the U.S. 

Having examined the available data on the H-1B visa program 

very closely, and seeing the absurdities that it contains, I am not 

surprised at all that the annual quota is being consumed before the 

start of the fiscal year. With the current state of enforcement, the 

quota is all that stands between the H-1B program and total chaos. 

I have included a number of recommendations in my written 

statement, and I would be happy to answer any questions. Thank 

you. 

Mr. HOSTETTLER. Thank you, Mr. Miano. 

[The prepared statement of Mr. Miano follows:]

39

PREPARED STATEMENT OF JOHN MIANO


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Mr. HOSTETTLER. Ms. Avendano. 

TESTIMONY OF ANA AVENDANO, ASSOCIATE GENERAL COUNSEL AND DIRECTOR, IMMIGRANT WORKER PROGRAM, 

AMERICAN FEDERATION OF LABOR-CONGRESS OF INDUSTRIAL ORGANIZATIONS 

Ms. AVENDANO. Thank you, Mr. Chairman, Members of the Committee. On behalf of the 9 million working men and women who 

are members of AFL-CIO-affiliated unions, I would like to thank 

you for the opportunity to speak with you about this critically important question: Is the Labor Department doing enough to protect 

U.S. workers? 

As is set out in more detail in my statement, the answer is, unfortunately, a resounding no. We are deeply concerned about the 

DOL’s failure to adequately enforce workplace laws. That failure 

harms all workers in the Nation, and continues to cause downward 

pressure on workplace standards across the country and across the 

economy. 

It is very telling that we heard this morning that the Department of Labor’s failure to enforce the H-1B protections have allowed employers to pay less than otherwise required by law in at 

least 3,200 jobs in the high-tech industry. 

The Federal Government’s ruling and enforcement of worker protections is particularly important in the context of guest worker 

programs; that is, programs that allow employers to import foreign 

workers in temporary status into certain jobs into the economy, 

like the H-1B program and its unskilled worker counterpart, the H2B program. Workers who are imported into our economy under 

those programs are at a great disadvantage, because, by the very 

nature of the programs, those workers rely on their employers not 

only for their jobs, but also for their own immigration status. Exploitation of workers in temporary worker programs like the H-1B 

and H-2B and L visa programs is thus made that much more easier because if workers complain that they are not being paid what 

the law requires, or they are not being paid at all, as is the case 

in many H-1B instances, they not only risk losing their jobs, but 

they also risk either having to leave the country or remain here unlawfully. 

Now, that kind of exploitation harms all workers in our Nation, 

because workers in the industry, H-1, that are covered by the H1B program and the other guest worker programs don’t labor in 

isolation. Temporary foreign workers work alongside their U.S.-

born counterparts in high-tech industries, and as teachers and engineers and nurses under H-1B visas, and alongside U.S.-born 

hotel workers, landscapers, service workers under H-2B visas. 

When employers have a system, a legitimatized system, to import workers, exploitable workers, and thus lower working conditions for those workers, they are essentially lowering standards for 

all workers in those very important and critical sectors of our economy. 

It seems clear that the Federal Government is moving in exactly 

the wrong direction in protecting U.S. workers in this context. Instead of reinforcing mechanisms that would ensure employers don’t 

import foreign workers in order to depress wages and other labor 

55

standards, the Government is moving toward a simple attestation 

program, essentially that DOL wants to abandon the small, or at 

least the way it’s exercising it, insignificant role that it has today. 

The labor certification process, flawed as it is, is the last remaining protection that U.S. workers have for two important reasons. 

One, it’s designed to make sure that the Government agencies that 

most understand local labor markets actually are the ones that are 

doing the application, so there is technical expertise that again provides protection for U.S. workers. 

Most importantly, labor certification, the process acts as a gatekeeper to make sure that there are no violations of the system before the workers are even imported. That is critical, because there 

are very few remedies after the fact both for the U.S. workers that 

are potentially displaced by the employers who are importing foreign workers to replace those workers and for the foreign workers 

themselves. 

Now, the issue of guarding against abuses in guest worker programs is particularly important right now, given that the Senate 

has adopted an immigration reform proposal that significantly increases the number of foreign visas available to employers and 

abandons the long-standing national policy of only allowing workers to fulfill seasonal or temporary labor shortages. Indeed the Senate bill creates a whole new class of temporary workers, the H-2C 

workers, and significantly increases the number of H-1B visas to 

employers. 

Whatever concerns we now have about the lack of enforcement 

of labor standards in temporary worker programs are sure to be 

magnified when the new hundreds of thousands of temporary workers are imported into our economy. 

In conclusion, Mr. Chairman, in response to the Ranking Member’s question of what should we do, what are we to do for American workers, the best thing we can do is to protect U.S. working 

standards so that workers can earn a decent wage, work in dignity 

and under decent conditions, and not continue to foster systems 

like the H-1B program that simply provide employers with a steady 

supply of exploitable workers. Thank you. 

Mr. HOSTETTLER. Thank you, Ms. Avendano. 

[The prepared statement of Ms. Avendano follows:]

PREPARED STATEMENT OF ANA AVENDANO

Chairman Hostettler, Ranking Member Jackson Lee and Members of the Committee, thank you for the opportunity to address the critically important question: 

is the Labor Department Doing Enough to Protect U.S Workers? As I will explain 

in more detail shortly, the answer is a resounding, NO. 

The AFL-CIO is a voluntary federation of 53 national and international labor 

unions. Our affiliates represent more than nine million working men and women 

of every race and ethnicity and from every walk of life. We are teachers and truck 

drivers, musicians and miners, engineers, landscapers, nurses, electricians, and 

more. We are deeply concerned about the Department of Labor’s (DOL) failures to adequately enforce workplace laws, including the protections afforded under the H1-B 

and other temporary foreign worker programs. I understand that the focus of this 

hearing is on the way that the DOL reviews and enforces Labor Condition Applications for H1-B visas, and I will address that issue specifically later in my testimony. 

The DOL’s failures go well beyond that specific issue. In fact, the failures are systematic, to the detriment of all workers in our nation, and have caused—and continue to cause—downward pressure on workplace standards across the country and 

across the economy. 

56

When the DOL fails to enforce any of the statutes under its jurisdiction, all workers suffer. Nowhere is that more evident today than in the Gulf region, where workers involved in the post Katrina reconstruction—both foreign born and US—are 

being cheated out of their wages by major US companies and forced to work in substandard, unhealthy and unsafe conditions. 

In February, a group of worker advocates, including the AFL-CIO met with DOL 

representatives here in Washington, DC to raise concerns about the ongoing labor 

and employment violations occurring in the Gulf region. The worker advocates 

painted a clear picture of unscrupulous contractors, rampant labor violations and 

sheer lawlessness in the Gulf region. Prior to the meeting, the advocates provided 

DOL a list of very basic questions including how many wage claims arising from 

the post-Katrina reconstruction effort had been filed, the processing time for claims, 

and various questions concerning DOL outreach efforts to workers. The DOL was 

unable to respond to any of those questions. The DOL’s lack of concern for working 

conditions in the Gulf was, frankly, appalling. 

The DOL’s failure to take seriously its law enforcement function in the Gulf region has left workers with no alternative but to rely on private enforcement that 

is through lawsuits. The Southern Poverty Law Center has filed two class action 

suits on behalf of thousands of workers in the Gulf who have not been paid at all, 

or not paid the minimum wage or overtime. But as the Center itself recognizes, 

‘‘lawsuits alone will not stop the widespread exploitation of workers that is going 

on in New Orleans. . . . The people working in New Orleans to rebuild its schools, 

hospitals and university buildings need and deserve the protection of the federal 

government.’’

The federal government’s involvement is particularly important in the enforcement of protections in the context of foreign temporary worker programs, like the 

H1B program and its unskilled worker counterpart, the H2B program. Workers who 

are imported into our economy under those programs are at a great disadvantage 

because, by the very nature of the programs, those workers rely on their employers 

not only for their jobs, but also for their immigration status. Exploitation of workers 

in the H1B and H2B programs is thus easier, because if workers complain that they 

are not being paid what the law requires, or expose other employer violations of law, 

they not only risk losing their job, but also risk either having to leave the country 

or remain here unlawfully. 

That kind of exploitation harms all workers, including US workers. The temporary foreign workers who are being cheated of their wages do not labor in isolation. They work along side their US-born counterparts in the high technology industry and as teachers and engineers (under H1B visas), and along-side US-born hotel 

workers, landscapers and service workers (under H2B visas). When employers are 

able to exploit one class of workers, that exploitation lowers the floor for all workers. 

The poultry industry provides a perfect example. Roughly half of poultry workers 

today are African American, and the others Latino, mostly immigrant. In 2000, the 

DOL conducted an industry-wide survey of compliance with wage and hour laws. 

That survey concluded that the industry as a whole was one hundred percent out 

of compliance with wage and hour laws. Clearly, the African American poultry 

workers suffered as much as their immigrant counterparts. 

That type of government compliance effort—that is, industry-wide investigations 

that do not rely on individual worker complaints—is a key part of a robust and 

meaningful monitoring system. And it is one that is of particular importance in the 

context of foreign temporary worker programs. Unfortunately, it is not one from 

which US workers can currently benefit because the DOL has essentially abandoned 

that key tool. We have been unable to locate any industry-wide targeted compliance 

efforts under the current Administration. 

It seems clear that the federal government is moving in exactly the wrong direction. Instead of reinforcing mechanisms that would ensure that employers do not 

import foreign workers in order to depress wages and other labor standards, the 

government is moving toward simple attestation programs, where the DOL has no 

significant role, if any at all. 

The labor certification process—as flawed as is it—is the last remaining protection 

that US workers have. That process is designed to ensure that the government 

agencies with the most expertise on local labor markets and with the greatest ability to find available US workers and determine how employers could recruit job applicants—the State Workforce Agencies—act as the gatekeepers for the temporary 

foreign worker programs. The certification process is also designed to prevent various harms before the fact, rather than after-the-fact, since there are few, if any 

adequate remedies available after the fact for those who bear the harm caused by 

abuses of temporary foreign worker programs. In addition, the inadequacy of afterthe-fact enforcement mechanisms mean that there are few disincentives for employVerDate 0ct 09 2002 14:07 Nov 30, 2006 Jkt 000000 PO 00000 Frm 00060 Fmt 6633 Sfmt 6621 G:\WORK\IMMIG\062206\28386.000 HJUD1 PsN: 28386
57

1See U.S. Commission on Immigration Reform, Becoming an American: Immigration and Immigration Policy, U.S. Commission on Immigration Reform, 1997. An earlier well known Commission—the Select Commission on Immigration and Refugee Policy (SCIRP)—chaired by Rev. 

Theodore Hesburgh had reached the same conclusions. See, National Commission on Immigration and Refugee Policy, U.S. Immigration Policy and the National Interest: Final Report. National Commission on Immigration and Refugee Policy, 1981. 

ers to violate their labor law obligations. An attestation process completely removes 

the DOL or the SWAs as the independent gatekeeper, thus opening up the foreign 

temporary workers programs for further employer abuse, subjecting the foreign temporary workers to further exploitation, depriving US workers of gainful employment, 

and degrading wages and working conditions within the domestic labor market. 

We fully agree with Congresswoman Sheila Jackson Lee’s concerns that the current requirements may not be enough to protect US workers, even if enforced adequately. We believe that more attestations are not the answer. The attestation 

structure—in and of itself—fails to meet the essential gatekeeper function. 

The DOL has the statutory responsibility for ensuring that employers do not 

abuse guestworker programs. Because of the exploitative nature of those programs, 

the DOL should be using every tool available and seeking to make current tools—

like the labor certification process—stronger, not weakening it by abandoning its 

role to an employer attestation process. 

The issue of guarding against abuses in guestworker programs is of particular importance now, given that the Senate has adopted an immigration reform proposal 

that significantly increases the number of foreign visas available to employers, and 

abandons the long standing national policy of only allowing employers to import 

workers to fill seasonal or temporary labor shortages. Indeed, the Senate bill creates 

a whole new class of temporary foreign workers, the H2C workers, in addition to 

increasing the number of H1B workers that employers are able to import. Whatever 

concerns we have now about the lack of enforcement of labor standards in temporary worker programs are sure to be magnified when the new hundreds of thousands of temporary workers are imported into our economy. 

These concerns are real and long-standing. The United States has spent years 

studying and experimenting with guestworker programs, and the resounding conclusion is that guestworker programs are bad public policy. The ‘‘Jordan Commission,’’ 

for example, which was created by the 1986 Immigration Reform and Control Act 

to study the nation’s immigration system squarely rejected the notion that 

guestworker programs should be expanded. In its 1997 final report, that Commission specifically warned that such an expansion would be a ‘‘grievous mistake,’’ because such programs have depressed wages, because the guestworkers ‘‘often are 

more exploitable than a lawful U.S. worker, particularly when an employer threatens deportation if workers complain about wages or working conditions,’’ and because ‘‘guestworker programs also fail to reduce unauthorized migration’’ [in that] 

‘‘they tend to encourage and exacerbate illegal movements that persist long after the 

guest programs end.’’ 1

In conclusion, we fully agree that we must significantly increase the mechanism 

for ensuring compliance with labor standards. Increased attestations alone are not 

the answer. We must also ensure that the DOL does not abandon its traditional 

oversight role and the gatekeeper role that it has exercised through the labor certification process. 

Targeted wage and hour investigations in the high technology industry, which is 

known to hire the most H1B workers, are essential and should be conducted immediately. The data from these investigations will allow Congress to meaningfully assess whether the H1B labor inspection mechanism is adequate to protect both US 

workers and the foreign workers who labor in those programs. 

Thank you and I look forward to your questions.

Mr. HOSTETTLER. At this time we will turn to questions from 

Members of the Subcommittee. First of all, Dr. Nilsen, you note in 

your testimony that the Labor Department probably certified even 

more LCAs erroneously, but because your review was narrow—I 

think you refer to it as cursory in your oral statement—only a 

small portion were uncovered. 

Can you elaborate on the scope and nature of the other potential 

problems and errors in the LCA process? 

Mr. NILSEN. In particular, I was referring to the review of the 

employer identification number where an error in that field is not 

58

seen by Labor as an obvious inaccuracy. So they just make sure all 

the fields are filled in with the number. We just took a look, there’s 

a two-number prefix, and we know there are only certain numbers 

that are valid. So many of those were, in fact, valid. 

There are many other checks that could be done, and while I 

don’t know the extent to which they would reveal erroneous numbers, but certainly they are in the permanent Labor certification 

program. Labor takes the employer’s identification number and 

checks it against a database to make sure it’s a valid employer. 

There’s a relatively low-cost exercise that they can do, but because they see this as a verification process, they feel it goes beyond the scope of their current authority. So there are many other 

checks like this that they can do, likewise looking at the programming and finding out why the prevailing wage information on those 

3,200 applications got through their data checks. 

Mr. HOSTETTLER. Can you just elaborate quickly on the difference between the verification, why the verification process is not 

necessarily a grounds for investigation? 

Mr. NILSEN. Labor, in its view of what it has the authority to do, 

is just to make sure that the information is completely filled in, but 

that it’s beyond the scope of their responsibility to actually make 

sure that the information is accurate. 

Mr. HOSTETTLER. Would there be——

Mr. NILSEN. I believe that would be a legislative change that 

would have to occur. 

Mr. HOSTETTLER. Is there a reason why that is—is there a statute as to why they cannot use that? Or is it just their regulation, 

that they don’t need to do that, they don’t have to do that? 

Mr. NILSEN. As I understand it, it’s a legislative requirement. 

But perhaps Labor could elaborate on that. 

Mr. HOSTETTLER. How about that? Is there specific preclusion 

from using that? 

Mr. ROBINSON. Yes, Mr. Chairman, there is. The statute, as we 

talked about four mechanisms to initiate an investigation, we refer 

to one of those as a credible source rule, but the statute explicitly 

prohibits us from getting information from ETA, in this instance, 

or the Homeland Security. So we cannot use that information as 

the basis to initiate an investigation. 

Mr. HOSTETTLER. Very good, that is helpful. Go ahead. 

Mr. ROBINSON. Excuse me, Mr. Chairman. As to your earlier 

point, and Mr. Carlson could give you some more information, and 

we would be glad to put that in writing if you would like, or if you 

wanted to hear from him, but as far as ETA’s responsibility under 

the certifying or checking the accuracy, they do not have, under the 

statute, the authority to go beyond, as Dr. Nilsen mentioned, go beyond what is presented on the information to actually do some 

verification. So they don’t have that statutory authority to do that. 

The statute is, again, sort of very explicit in that area. 

We would be glad to, if you wish, get you some additional information in writing. 

Mr. HOSTETTLER. Thank you, sir. That is very helpful. 

Mr. Robinson, when a complaint is filed, how is it investigated, 

and has the Labor Department done outreach to H-1B and American high-tech workers to let them know how to file complaints? 

59

Mr. ROBINSON. Yes, sir. The complaint process is just like any 

other process. We would take a complaint. We have a procedure 

where we investigate, do fact-finding, do interviews. So we do have 

a process take we would go through. 

We follow that, and I think it’s table 4 in the GAO report shows 

we have an increasing track record of increasing complaints and 

processing and recovery of back wages, as well as helping employees. 

We do educational events, if you will, outreach, with employers 

and employee groups, so we do try to educate the H-1B community 

as to the requirements as well as follow up with our enforcement 

activities, yes, sir. 

Mr. HOSTETTLER. One more thing. What about Americans, hightech—American citizens, high-tech workers that are American citizens? 

Mr. ROBINSON. I can—I can’t give you any examples. If you like, 

I could maybe try to do that and perhaps put something in writing 

for you to give you some information there. 

Mr. HOSTETTLER. That would be helpful. 

Mr. ROBINSON. The type of outreach that we have done in that 

area. 

Thank you. My time at this point has expired. 

The Chair now recognizes the gentleman from Texas Mr. Smith 

for questions. 

Mr. SMITH. Thank you, Mr. Chairman. 

Dr. Nilsen, as I recall reading in some of your materials, the proportion of H-1B visas that go to individuals who we might call 

high-tech workers, those connected to the computer industry, really 

is only about a third of the total number. Is that roughly accurate? 

Mr. NILSEN. Yes, I believe that’s correct. It certainly is the largest component. It’s probably closer to 40 percent. 

Mr. SMITH. Let’s assume that it is 40 percent of the H-1B visas 

go to the high-tech workers. I just have to say, and I know this is 

outside the purview of our hearing today, but I am looking at some 

of the other occupations and individuals who receive the H-1B 

visas, and they include accountants, chefs, dieticians, hotel management and interior designers. 

I am not sure I am convinced, nor am I convinced that the other 

individuals in America who might be working in those occupations 

are convinced, that we need more people in those particular areas. 

That is something I realize is a policy question for Congress to decide. But, at the same time, I am not convinced that a case has 

been made in those areas. 

Mr. Robinson, I wanted to direct a couple of questions to you, 

particularly in regard to H-1B-dependent companies. 

Mr. ROBINSON. Yes. 

Mr. SMITH. When the original legislation was written, I was involved in a compromise that ended up focusing on those H-1B-dependent companies. I am just wondering how many investigations 

the Department of Labor has conducted in regard to the H-1B-dependent organizations. 

Mr. ROBINSON. Congressman, I can’t answer that question. I can 

check our database and see how many of our investigations have 

focused on H-1B-dependent——

60

Mr. SMITH. Do you know whether it’s a significant number or 

not? Can you just give me an idea? 

Mr. ROBINSON. I am afraid I am unable to do that. I just don’t 

know, but I can get you that information. Sorry. 

Mr. SMITH. In that case let me ask you if H-1B companies were 

advertising for H-1B-only job applicants, would that be a possible 

violation of the two attestations that the employers have to make? 

The two attestations, of course, being that you have to advertise for 

an American worker first, and that if you can’t find an American 

worker, that you can replace that worker with a foreign worker. 

So my question is if someone were advertising for an H-1B-only 

applicant, wouldn’t that imply it had to be a foreign worker as opposed to being an American worker? 

Mr. ROBINSON. Congressman, you are correct about the two additional attestations that the H-1B-dependent employer must satisfy. 

There is an exception, and I think this might go a little bit toward testimony as well. For an H-1B employee who is earning 

$60,000 or more in annual wages or has a master’s degree or higher, that attestation of recruiting and hiring does not apply. So it 

is quite possible in the instance that was mentioned earlier in 

checking the LCAs, we found that these people were exempt H-1B 

workers from that recruit and hire. 

Mr. SMITH. That’s correct. So we are talking about individuals 

who earn less than that. Do you still feel if you were advertising——

Mr. ROBINSON. Oh, if they were earning less than that? That 

would probably be something we want to pursue and do some factfinding. 

Mr. SMITH. If you would, within a week, if you could get back to 

me on the number of H-1B investigations you have conducted and 

what the results of those investigations were; and also whether any 

of the attestations were violated, and, if so, which ones. That would 

be good. 

Mr. ROBINSON. Yes, sir. 

Mr. SMITH. Dr. Nilsen, do you have anything else to add to my 

concern about those attestations being violated by H-1B-dependent 

companies? 

Mr. NILSEN. No, I don’t have anything to add on that question 

at that point. 

Mr. SMITH. One other thing for you, Dr. Nilsen. Did you notice 

in your investigation that there was any particular occupation that 

seemed to—in which you found more fraud than another occupation? 

Mr. NILSEN. No. We didn’t do that kind of analysis that broke 

it down by occupation. 

Mr. SMITH. So it was across the board. 

Mr. NILSEN. Yes. We didn’t actually look at specific occupations 

and find which ones were more likely. 

Mr. SMITH. You have no knowledge of that either, then? 

Mr. NILSEN. No. 

Mr. SMITH. Thank you. 

Thank you, Mr. Chairman. 

Mr. HOSTETTLER. Thank you. 

61

The Chair recognizes the gentlewoman from Texas, the Ranking 

Member, for 5 minutes. 

The gentlewoman yields to the gentleman from Texas Mr. 

Gohmert. 

Mr. GOHMERT. Thank you, Mr. Chairman. I don’t know, the gentlewoman from Texas may still be shocked that I agreed with her 

earlier. But anyway, pardon my ignorance, but that’s the way I 

learned. And some people thought I was a decent judge, but that 

is because I didn’t mind asking questions and exposing my ignorance. 

But I was just wondering, and it may be, Dr. Nilsen, we will 

start with you, but if somebody could take me step by step through 

the process that the U.S. Government goes through, you know, 

from what you know, from whether its immigration, DOL, whoever, 

once you get an application from someone wanting an H-1B visa, 

what do we do? 

Mr. NILSEN. I am happy to take you through that. It was complex to us, too. 

In our report on page 10, we just have a little graphic takes you 

through that, where the application is filed electronically with 

Labor. 

Mr. GOHMERT. That is great. I am just seeing this report. 

Mr. NILSEN. It was just issued today. 

Mr. GOHMERT. Okay. Maybe that is why I hadn’t seen it. 

Mr. NILSEN. Yes. In the back on page 32, in fact, is a copy of the 

Labor condition application that they file with Labor. This identifies the company, the kinds of workers, and each application is for 

a particular occupational series. It lists the wages they are going 

to be paying, what the prevailing wage is, et cetera. 

Then once that gets approved by Labor, and, as I indicated, that 

is a matter of minutes, it’s an electronic process, make sure all the 

data is there, it gets forwarded then to the Department of Homeland Security. 

Mr. GOHMERT. The deep abyss. Okay. 

Mr. NILSEN. Along with—and we also have the next appendix, 

shows the petition that goes along with the application that gets 

filed with the LCA. 

That gets investigated, adjudicated by Department of Homeland 

Security. Once that has been approved, then they check against the 

caps, et cetera. Then it would be forwarded to the State Department for a visa to be issued for an individual. 

Mr. GOHMERT. Just looking at figure 1 of page 10, in the review 

of the H-1B visa process, it explains, submit the application electronically. ETA approves the application within 7 days if complete. 

You say that’s the process that takes minutes. 

Normally then the employer submits a H-1B petition, okay, and 

the CIS—and the CIS adjudicate and approve the petition. I guess 

it’s kind of like when Steve Martin says, I am going to write a book 

and tell people how to have $1 million and not pay taxes. Okay, 

first get $1 million and then just don’t pay taxes. I mean, it’s like, 

okay, but I am curious about what the process is by the Government. You got Labor, maybe approved within minutes. You said 

that can be done on line. 

Mr. NILSEN. Yes. 

62

Mr. GOHMERT. We may need to get you all to help Homeland Security with their computers so that they can do those kinds of 

things. But what is it that CIS does between those last three, four 

and five boxes? 

Mr. NILSEN. They look at the application. 

Mr. GOHMERT. Okay. That takes several days to read that probably. 

Mr. NILSEN. Verify that is an occupation that qualifies. 

Mr. GOHMERT. But how do they do that, just by looking at it, and 

their training and knowledge? 

Mr. NILSEN. This is actually a hands-on process by Homeland Security, CIS, where they go through and they actually do checking 

of the information. Anything that comes——

Mr. GOHMERT. But how do they check that information? That is 

what I am trying to get to, and I realize my time has expired. If 

I could just finish this line. 

Mr. HOSTETTLER. Without objection, the gentleman is recognized 

for another minute. 

Mr. GOHMERT. Thank you, Mr. Chairman. 

Mr. NILSEN. If they see anything that raises a question, they will 

talk to the employer to get additional information. They make sure 

it’s a specialty occupation, and they verify the worker qualifications, for example, if they need a higher level of degree, bachelor’s 

or master’s in engineering, making sure that the documentation is 

there that verifies that this is, in fact,correct, that this person 

qualifies under those conditions. 

Mr. GOHMERT. Okay. So they review, though, what’s there. 

Mr. NILSEN. What’s there, and they will contact the employer 

who filed the petition if there are any questions. 

Mr. GOHMERT. I guess that’s what I was getting to. They look at 

the documentation, and if somebody has got somebody else to say, 

this is what’s needed, whether it’s true or not—and I don’t want 

to shock your conscience, but I found as a judge, chief justice, and 

now it’s been absolutely confirmed here in Congress, people will lie 

to you. It just happens. So I guess I’m wondering what kind of outside verification there is. 

Mr. NILSEN. They’re supposed to provide certified transcripts 

from universities;, not just a copy but a certified transcript, for example, that documents that they have the training that they purport that they have in a particular field. 

Mr. GOHMERT. But how about for the certification that this is exactly what’s needed for this position? 

Mr. NILSEN. They look at the occupational series that’s listed, 

and look at the—you know, if it’s in the computer field that it’s a 

relevant occupation for a relevant degree for that occupational series. 

Mr. GOHMERT. And so I was surprised to see the list my colleague had here that lists things like chiropractor, and I frankly 

didn’t realize there was such a huge shortage of chiropractors here 

that we were having to bring them in from other places. I know 

some chiropractors that are struggling that didn’t realize that either. Anyway, I guess you have a list of what’s required in order 

to be a legitimate chiropractor in the U.S., correct? 

Mr. NILSEN. I would presume they do. 

63

Mr. GOHMERT. Okay. That’s where we get in trouble. 

Mr. NILSEN. And it is basically a paper review of the documentation provided. 

Mr. GOHMERT. All right. I realize I have vastly exceeded my 

time, and I appreciate the Chairman’s indulgence. Thank you. 

Mr. HOSTETTLER. Thank the gentleman. The Chair recognizes 

the gentlelady from Texas, the Ranking Member, for 5 minutes. 

Mr. JACKSON LEE. Thank you. Dr. Nilsen, thank you for your report. My question to you, in your assessment, do you believe this 

program can be reformed? 

Mr. NILSEN. I guess I would have to say yes. Anything can be 

reformed. I think if you’re going to ask can additional work be done 

to improve the verification process of the application, certainly 

much more can be done. But Labor, or whoever, would have to be 

given the authority to do verification and share the information 

and do a relevant investigation process in order to improve it. 

Right now, as we’ve been saying, the LCA process is very cursory, 

the review process that Labor does. The fact that Homeland Security and Labor cannot share information for purposes——

Ms. JACKSON LEE. Is that in the legislative framework—are you 

suggesting they can do it in a regulatory framework or they need 

legislative framework? 

Mr. NILSEN. They need legislative authority. 

Ms. JACKSON LEE. What can they do presently? One of the concerns is how energetic the Department of Labor is in terms of the 

attestation. You make the point that between January 2002 to September 2005, 9,563 applications and 99.5 percent were certified. Is 

there not an administrative fix or sort of an in-depth review that 

might be given? 

Mr. NILSEN. Certainly. But under current legislative authority, 

there’s only a little bit more I think that Labor can do. Certainly 

the work that we did defined the 3,200 erroneous wage levels and 

the erroneous employer identification numbers; Labor can do that 

now. There’s something broken in their software that doesn’t do 

that match properly, and they don’t look at the employer identification numbers to actually verify that they’re in a relevant series. 

They then could get some additional information to match and 

make sure that information is relevant. But beyond that, they are 

limited statutorily. 

Ms. JACKSON LEE. Well, I always like to be a problem-solver and 

I think that Labor owes us at least a performance of excellence 

under the present legislative structure, and they can do what you 

just said. 

Mr. NILSEN. Yes. 

Ms. JACKSON LEE. And one of the reasons, of course, is that we 

see the conflicting voices here. There is a great need for H-1B visas 

in a number of our professions, particularly our software, hightech, Internet highway, if you will, constituencies; and it matches 

up or clashes, if you will, against those who argue that we need 

to increase the number of engineers and software specialists and 

others here in the United States, which I hope we can do by using 

our training dollars in the right way. But I don’t think we should 

leave this hearing without Labor acknowledging present failures 

under the present legislative process or system, and they should do 

64

something about it. Can they do something about it at least as 

what you have just indicated? 

Mr. NILSEN. In our opinion, yes, they can. In our report, they did 

take issue with even the modest steps we’ve proposed, however. 

Ms. JACKSON LEE. I thank you for that. 

Ms. Avendano, let me thank you for your presence here today. 

You mentioned in your statement that the attestation structure in 

and of itself fails to meet the essential gatekeeper function. Can 

you give us some options that we can utilize? 

Ms. AVENDANO. Certainly. Thank you, Congresswoman. I think 

it is clear the role, the independent oversight role that the Department of Labor should play should be strengthened and not weakened through an attestation program. That role is important for 

two reasons. One, because the importance of relying on the State 

recourse agencies who have the knowledge of, who have the technical expertise, who understand local labor markets, to be able to 

determine whether employers are gaming the system from the gitgo is essential. And also it is the Department of Labor who plays 

that gatekeeper role to, ensure again on the national level, that 

employers aren’t using this program for the intent of undermining 

working standards. If that role is abandoned, then all we are left 

with is after-the-fact mechanisms and remedies, which don’t provide adequate protections for the U.S. workers. 

Ms. JACKSON LEE. So you want the Labor Department to do 

what? 

Ms. AVENDANO. One thing that the Labor Department can do 

right now is to conduct targeted wage-and-hour investigations into 

the high-tech industry and particularly in the occupations that are 

highlighted in the GAO report: computer systems analyst and programming occupations. Many of these programmers who will laboring under H-1B visas are not being paid at all, and those employers are not just violating labor certification conditions but also the 

Fair Labor Standards Act. There is no reason why the Department 

of Labor cannot conduct a targeted investigation into an entire industry, granted this Administration hasn’t done that. The last targeted industry that we’ve seen was of the poultry industry in the 

year 2000. When that survey concluded, that industry as a whole 

was 100 percent——

Ms. JACKSON LEE. So you don’t want to extinguish H-1B. You 

want to make it true to what it is supposed to do, which is to provide the staffing for industries or positions which we cannot find 

or have no source of an American worker. Is that the sense of it? 

Ms. AVENDANO. I respectfully—the question really—there’s two 

separate questions. One is that the H-1B program, as a guest worker program, as a mechanism that has provided employers with a 

constant supply of exploitable workers, is a bad thing and should 

be limited in scope, and it should have much more regulatory authority. To mitigate the damage of this program, much more needs 

to be done to protect both U.S. workers and the foreign workers 

who labor in these programs. 

Ms. JACKSON LEE. I got you. Mr. Robinson can you do better? 

Mr. ROBINSON. Thank you Congresswoman. Yes. Let me just say 

two quick things. First of all, ETA is very concerned about the incorrect approval of applications with low prevailing wages. They 

65

don’t exactly know today why this occurred. ETA is checking its 

system as to why it occurred. We’re investigating it. We’ll be running simulations to determine the cause, and fully intend to correct 

any problems that are found. ETA joins you in wanting to have this 

corrected and will be shooting for the goal of being 100 percent accurate all the time. And so ETA does want this to occur. 

As far as the other comment about targeted investigations, we’ve 

talked a little bit here today about our authority, and under the H1B statutory framework, Department of Labor does not have the 

authority to conduct targeted investigations. 

Ms. JACKSON LEE. I do understand that. As I close, let me just 

say we have these conflicting interests that I think are important 

interests. The supplementing of a profession that needs H-1B visas 

and the protecting of both the H-1B visa worker and the American 

worker and providing opportunities for American workers. What we 

want—at least what I’m saying to you now within this framework 

as we leave you to go vote—that DOL needs to do better than it 

has done. GAO has laid out a number of recommendations, two of 

which—two important ones are legislative. I want you to do what 

you can do in the course of your present framework. 

Mr. ROBINSON. Understood. And we’ll do that. 

Ms. JACKSON LEE. With that, Mr. Chairman, I yield back. Thank 

you very much. I thank the witnesses. 

Mr. HOSTETTLER. I thank the gentlelady. 

At this time the Chair will ask one question before we part—before we go to vote. The title of the hearing today is, ‘‘Is The Labor 

Department Doing Enough to Protect U.S. Workers?’’ and we’ve 

heard very good testimony today as to that. 

But Mr. Miano, you have done a fairly significant study on the 

impact of the H-1B program on especially the IT industry. And let 

me just end the hearing by asking a question not so much about 

the Labor Department, but as the program is currently constituted, 

does the program—even if the Department of Labor did everything 

right and used all of its authority that it is granted today to execute the law and enforce the law—does the H-1B program even 

give them that adequately to protect American high-tech workers? 

Mr. MIANO. No, Mr. Chairman, not at all. The restrictions on the 

Department of Labor are so extreme that the types of complaints 

that they can handle are just at the fringes. I mean, they just can 

kind of pick at little things. They cannot address the heart—the big 

issues in this system. 

Mr. HOSTETTLER. Very good. Very good. And we yield time to Mr. 

Gohmert from Texas. 

Mr. GOHMERT. Just a very quick question. I know we have to go 

vote. But I continue to want to know more about what’s done before these visas are granted. And when I see that accountants, 

chefs, chiropractors, dieticians, fashion designers, hotel managers, 

interior designers, journalists—journalists?—medical records librarians, ministers, show room managers, social workers—we don’t 

have enough social workers to be hired in this country? 

Anyway, I’m just curious, when you see an application—when 

people at CIS or Labor see an application like this—and I was 

going there before—but what assurance is there that there really 

aren’t enough people in America that don’t want to be social workVerDate 0ct 09 2002 14:07 Nov 30, 2006 Jkt 000000 PO 00000 Frm 00069 Fmt 6633 Sfmt 6601 G:\WORK\IMMIG\062206\28386.000 HJUD1 PsN: 28386
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ers or don’t want to be librarians or don’t want to be hotel managers? I get the impression that they don’t call the AFL-CIO to see 

if they have any workers available to see if they’d like to fill these 

positions and meet the requirements. 

I’m just curious, rather than looking at, you know, a document 

on its face, seeing our list—yes, it meets the requirements—is 

there any investigation at all to see if there are workers available 

that would fill this position? That’s my question. 

Mr. MIANO. I would like to answer. You know, the lawyer’s best 

friend is an ambiguous law, and the problem that you have in this 

program is that the eligibility requirement is so vague, specialty occupation, that it’s basically a packaging by lawyers, whoever you 

can fit into that, and so you get that. You can add into that restaurant hostesses. My favorite from this one this year was called—

specialty occupation was the job title, and the employer in the contacts job title listed as retired. 

Mr. ROBINSON. Mr. Chairman, could I also interject? We talked 

a little earlier about the H-1B-dependent employer which does have 

that hire—recruit and hire attestation, but there is no corresponding attestation for the normal H-1B employer, someone 

who’s not a willful violator or an H-1B-dependent employer. So 

that—it only applies to a small segment, if you will, of the H-1B 

employer. 

Mr. GOHMERT. So as long as you haven’t been caught being a 

problem before, you can keep going. 

Mr. ROBINSON. And you don’t meet the definition of H-1B dependent as to the occupations, I believe, but the Department of 

Homeland Security is the agency that actually sets what those specialty occupations are. 

Mr. GOHMERT. You’ve been most enlightening. Thank you very 

much. 

Mr. HOSTETTLER. I thank the gentleman. And it was the reason 

for my last question that we will—this Subcommittee will continue 

to investigate the H-1B program on some more fundamental 

grounds as to how the program can better be crafted and the Department of Labor and others can be given better tools to ultimately provide for, first of all, the protection of American workers 

and, to the extent that there may be a demand for further workers, 

then to provide those for the various industries. But our obligation 

here first of all in the Congress is to protect American citizens and 

their ability to work. 

I want to thank the panel for your very helpful input today. It 

has been enlightening, as my colleague has suggested, and you 

have added greatly to the record. All Members will have 5 legislative days to make additions to the record. The business before the 

Subcommittee being complete, without objection, we are adjourned. 

[Whereupon, at 3:18 p.m., the Subcommittee was adjourned.] 

(67)

A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD

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UNITED STATES GOVERNMENT ACCOUNTABILITY OFFICE REPORT ON ‘‘H-1B VISA PROGRAM: LABOR COULD IMPROVE ITS OVERSIGHT AND INCREASE INFORMATION SHARING WITH HOMELAND SECURITY,’’ SUBMITTED BY THE HONORABLE SHEILA JACKSON

LEE, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF TEXAS, AND RANKING

MEMBER, SUBCOMMITTEE ON IMMIGRATION, BORDER SECURITY, AND CLAIMS


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RESPONSE TO POST-HEARING QUESTIONS FROM ALFRED B. ROBINSON, JR., ACTING DIRECTOR, WAGE AND HOUR ADMINISTRATION, EMPLOYMENT STANDARDS ADMINISTRATION, UNITED STATES DEPARTMENT OF LABOR


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‘‘H-1B VIOLATIONS REPORT’’ SUBMITTED BY THE U.S. DEPARTMENT OF LABOR IN RESPONSE TO REQUEST FROM THE HONORABLE LAMAR S. SMITH, A REPRESENTATIVE

IN CONGRESS FROM THE STATE OF TEXAS


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Æ


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