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walking_dude
01-14-2008, 12:06 PM
Attention: The post that follows is neither a legal advice nor a law. Neither the poster nor Immigration Voice should be held liable for any direct or collateral damages caused by misinterpretation of the post as law or legal advice.

While the intent of the author is that each of these points be part of the Immigration law, current reality is unfortunately not so. Though most EB immigrants and employers do follow these points in good faith, there are a few black sheep in the system who bring a bad name to all EB immigrants and their employers. These few employers who game the system need to be shunted out. That will be only possible if the Immigration law is changed to protect all Foreign workers from abuse. EB immigrants don't beg to be exploited by their employers. It's the broken Immigration laws that have protected these minority of abusive employers.

Here are some basic protections accorded to every human being in any civil and just society. These are penumbral rights derived from basic human rights of Right to Fairness, Right to Justice, and Right to Equality. The basic human rights are accorded to all of mankind by God. Why LEGAL foreign workers should not be accorded these basic and penumbral rights that protect them from potential abuse? You decide..

Several lawmakers have done grandstanding on the Senate floor beating down the victim of abuse and exploitation. Instead of upholding the greatest American tradition of protecting the victim, these senators have victimized the victim of abuse by being the CAUSE of delays to provisions to green card backlogs and by being CAUSE of missing protections for the LEGAL foreign high skilled employees.

The key component of the entire debate is, these protections for LEGAL foreign workers are missing from the current system. It affects not just LEGAL foreign workers, which is otherwise a small fraction of US workforce, but absence of these required and necessary protections for LEGAL foreign workers also puts the entire US workforce at risk of being treated unfairly.

Here are the missing penumbral rights derived from basic human rights -


------------------------------------------------------------------------------------------------------------

1) Fair Prevailing Wages Protection, derived from Right to Justice


Employer should give a sworn Affidavit that the worker will be paid AT LEAST the Prevailing Wages for the job as determined by US Department of Labor ( government authority in determining wages) . This letter should be accompanied by a copy of DOL Prevailing wages printed from DOL website. If found in violation, Employer is liable to be fined and jailed as a felon ( for slave labor). Foreign worker has full rights to sue the Employer for back wages and damages. Law should stipulate the compensation MUST be at least 5 times the back wages owed.


2) Freedom of Information derived from Right to Fairness


At every stage of the Green Card/H1/L1 process, employee MUST be given a copy of all the documents submitted by the Employer to DOL and USCIS. DOL/USCIS/Visa consular offices must give (or send) the employee a letter or document which fully explains his legal rights and protection against abuse. DOL and USCIS must be establish a Hot-line to assist foreign workers in determining if a certain employer practice constitutes abuse or not. It should also assist the employee in filing a case if the employer is found to be in violation of law.


3) Whistle Blower Protection derived from Right to Equality

Federal law does provide limited Whistle Blower protection. However, the current Federal law doesn’t go far enough to cover the immigration status of the Whistle Blower.

Information provided to the DOL/USCIS/Other government agencies to report in good faith about any law violation, shouldn't be allowed as the reason for denying/revoking past, present or future Immigration benefits for the employee who decides to report an employer. The current Immigration status of the employee should be preserved once the complaint is received. Employer shouldn't be allowed to revoke the visa while investigations are pending, and thereafter if employer is found to be in violation of Immigration law. Employee should be allowed to change jobs during the investigation if he/she wishes so. Changing jobs shouldn't impact the case or the Immigration status adversely.


USCIS/DOL MUST ask the Employee if he/she has been threatened with monetary, physical, Immigration and other adverse consequences by the Employer. If it turns out that there was a threat, suitable legal action should be initiated through the law-enforcement against the Employer.


4) Full Job portability derived from Right to Fairness


An employee shouldn't be required to work for the same employer who applied his/her Immigration application, if he/she isn't happy with them. Employee should be able to change to "same or similar" jobs at any stage of Immigration process without losing any Immigration benefits. Same benefits as provided by AC21 (American Competitiveness in the 21st Century) law to 'Adjustment Of Status' applicants post-180 day processing period must be extended to all stages of Immigration process with no time limits (meaning portability becomes effective the minute application is submitted to DOL/USCIS)

Definition of "same and similar" should be implemented as intended in the spirit of the law so that foreign workers could get promotioned within the same employer, or accept higher positions with other employers commensurate to their skill and experience. Full portability MUST be provided in the field of work for which the original application was submitted. For instance a person who applied for Computer Programmer should be able to become a Computer Analyst, Software Engineer, Software Designer, Software Architect or Project Manager in the software field.

USCIS regulations implements only the “same job occupation classification” and totally eliminates implementing “similar job occupation classification” for AC21. This requires administrative changes to USCIS intrepetation and rule to widen the SOC/O*Net codes available to a person changing jobs, in accordance with the intent and spirit of the AC21 law.

------------------------------------------------------------------------------------------------------------

These points if implemented in rule making or law will go a long way safeguarding the interests of the entire US workforce and the minority of EB immigrants who suffer due to abuse.

It's very important that we LEGAL Employment-based immigrants, who follow all the rules and go by the book, take a lead in providing direction to the Worker protection reform instead of letting blatantly anti-immigrant organizations hijack the issue, and misuse it to harm our entire community for the misdeeds of a few.

If you support the points mentioned above please indicate your support my voting 'yes' to the poll provided above.

This is NOT a thread to discuss about the employer abuses that may have happened to you or others, in the past or the present. Lets keep the thread focussed on the purpose of creating a voluntary momentum in our community to support and pursue reform of EB worker protection in a positive workable manner.

Thanks for your support.

chanduv23
01-14-2008, 01:20 PM
Good initiative - the whistle blower protection is important. At least in my case, I was in troubled waters with a bad employer because of this.

abhijitp
01-14-2008, 02:34 PM
Three cheers for walking_dude!

walking_dude
01-14-2008, 03:08 PM
Thanks Chandu and abhijitp. Others, support these points if you believe in them.

virald
01-14-2008, 03:26 PM
These are some really good points. Especially related to interpretation of same /similar jobs. It should be definitely widened to account for promotions. Looking at the delays in getting the green card, it only make sense that a petitioner be allowed to continue with their lives, so to speak.

h1bmajdoor
01-14-2008, 09:02 PM
please do not mislead people and get them to waste valuable time and effort. you are only displaying your own fear. there is no easy cure for fear.

- an H1b is protected under whistle blowing laws.

- an employer fills out prevailing wage certificates

- these are not the problems facing h1s. i have yet to see an h1 being treated like the indians in kuwait and dubai. there may be a few unfortunate ones out there, and they have the full support of the law when blatant violations take place. please try to understand the roots of the problems. no one needs to be a lawyer to understand the roots of these problems as these are ancient themes of human exploitation.

- there is a simple fix for most of these problems. there should be no renewal of h1 at 3 years. h1 should be a 3 year program. if the employee wants the h1 to stay further, he has to do a 140. once the 140 is done, the h1 should be allowed to file 485 regardless of retro.

- this will give him freedom in 3.5 years. once he is on EAD/AP, he is (almost) free.

amsgc
01-14-2008, 10:01 PM
...

walking_dude
01-15-2008, 10:27 AM
Majdoor,

1) My post is about EB immigrant protection in general, and not tied to any particular visa.

2) Read the para about Whistle blower protections - wages are protected but not immigration benefits as per the current law. An employee can claim backwages from an employer. His/her immigration benefits are not protected. If employer withdraws the petition employee could be in trouble. This creates avenues for exploitation. This needs to be fixed.

3) My proposal aims to strengthen the process currently based on good faith measures such as employer filling out prevailing wages certificate, by requiring a sworn affidavit and adding prison time to abusers. This ensures that employers do not abuse the leeway provided by the system.

4) My proposal gives EB immigrant Full job portability with instant freedom. Your proposal requires that the employee work for the same employer for 3.5 years, even if he/she is not happy with the company! This creates chances of exploitation for 3.5 years which is not acceptable.

Thanks for sharing your thoughts.



<snip>

- an H1b is protected under whistle blowing laws.

- an employer fills out prevailing wage certificates

- these are not the problems facing h1s. i have yet to see an h1 being treated like the indians in kuwait and dubai. there may be a few unfortunate ones out there, and they have the full support of the law when blatant violations take place. please try to understand the roots of the problems. no one needs to be a lawyer to understand the roots of these problems as these are ancient themes of human exploitation.

- there is a simple fix for most of these problems. there should be no renewal of h1 at 3 years. h1 should be a 3 year program. if the employee wants the h1 to stay further, he has to do a 140. once the 140 is done, the h1 should be allowed to file 485 regardless of retro.

- this will give him freedom in 3.5 years. once he is on EAD/AP, he is (almost) free.

patbose
01-15-2008, 10:35 AM
This is really good stuff Walking_Dude.

walking_dude
01-15-2008, 12:18 PM
Thanks patbose and amsgc. 65 votes and counting proves that our community of EB immigrants supports improving the existing laws to provide greater workplace protection to foreign workers.

This alone will stop workplace abuse and not counterproductive measures such as banning H1Bs from consulting business, which not only raises Civil Rights issues (denying jobs based on national origin), but also hurts the economy.

absaarkhan
01-15-2008, 12:21 PM
Very Nice And Intersting Post.
Well Done.

chanduv23
01-15-2008, 12:26 PM
Do we plan to mobilize this and add provisions?

walking_dude
01-15-2008, 01:33 PM
Thanks absaarkhan. It's heartening to see wide spread support from our community in stopping abuses, by passing sensible reforms to Immigration law.

Chandu, through grassroots endorsement of sensible reforms, we'll show them that we aren't willing participants in the abuse. We would like to see the laws changed to protect the foreign workers from the minority of abusive employers.

Now the ball is in the court of Congressmen - who complain about 'exploitation' and 'abuse' all the time. Now that the grassroots have supported the above mentioned meaningful measures to end abuse, will these Congressmen rise to the occassion and help pass the suggested reforms ? Or will they continue to stick to their empty rhetoric, and do nothing to help the victims of abuse?

IVs provisions of ending backlog through increase in Green Cards will naturally end most abuse, by freeing the applicants from the legal requirement to work for the same employer for the next 6-12 years. Neverending backlogs is THE topmost reason for most abuses. These lawmakers need to show courage in passing these provisions, if they really do care about 'exploitation' and 'abuse', they claim.

walking_dude
01-15-2008, 09:54 PM
It's really heartening to see 80 IVians support the idea.

guyfromsg
01-16-2008, 12:01 AM
Walking dude..very good points. I agree but what's the definition of employer here, is it the HR manager or the CEO? Should this be similar to SOX compliance where the CEO is held resposible for any screwup like Enron. I'm afraid unless the punishment goes to the highest level, scapegoats will be made and the CEO will simply walk away?

Maxine123
01-16-2008, 12:10 AM
Why do you say you are almost free.. ? I am new to this forum and I have many questions. I have EAD and AP. But my EB category is not current. I do not feel free. Our lawyers have recommended that I get on an H visa . I currently have an L1. I have two years to go on the L but the Lawyers want this to be changed asap. Why? On the other hand it looks like they plan on me keeping my EAD and AP. Same for my spouse. But he will not go on H visa. He will continue to depend on EAD and AP. How long can those be renewed? Please help anyone thanks!!

santb1975
01-16-2008, 06:46 AM
I had to take the abuse of my former employer for a while because Whistle blower protection did not protect my immigration status. Three years ago I seeked opinion from a Labor attorney and an immigration attorney regarding that and I was told whistle blower protection does not apply to my immigration status.

Attention: The post that follows is neither a legal advice nor a law. Neither the poster nor Immigration Voice should be held liable for any direct or collateral damages caused by misinterpretation of the post as law or legal advice.

While the intent of the author is that each of these points be part of the Immigration law, current reality is unfortunately not so. Though most EB immigrants and employers do follow these points in good faith, there are a few black sheep in the system who bring a bad name to all EB immigrants and their employers. These few employers who game the system need to be shunted out. That will be only possible if the Immigration law is changed to protect all Foreign workers from abuse. EB immigrants don't beg to be exploited by their employers. It's the broken Immigration laws that have protected these minority of abusive employers.

Here are some basic protections accorded to every human being in any civil and just society. These are penumbral rights derived from basic human rights of Right to Fairness, Right to Justice, and Right to Equality. The basic human rights are accorded to all of mankind by God. Why LEGAL foreign workers should not be accorded these basic and penumbral rights that protect them from potential abuse? You decide..

Several lawmakers have done grandstanding on the Senate floor beating down the victim of abuse and exploitation. Instead of upholding the greatest American tradition of protecting the victim, these senators have victimized the victim of abuse by being the CAUSE of delays to provisions to green card backlogs and by being CAUSE of missing protections for the LEGAL foreign high skilled employees.

The key component of the entire debate is, these protections for LEGAL foreign workers are missing from the current system. It affects not just LEGAL foreign workers, which is otherwise a small fraction of US workforce, but absence of these required and necessary protections for LEGAL foreign workers also puts the entire US workforce at risk of being treated unfairly.

Here are the missing penumbral rights derived from basic human rights -


------------------------------------------------------------------------------------------------------------

1) Fair Prevailing Wages Protection, derived from Right to Justice


Employer should give a sworn Affidavit that the worker will be paid AT LEAST the Prevailing Wages for the job as determined by US Department of Labor ( government authority in determining wages) . This letter should be accompanied by a copy of DOL Prevailing wages printed from DOL website. If found in violation, Employer is liable to be fined and jailed as a felon ( for slave labor). Foreign worker has full rights to sue the Employer for back wages and damages. Law should stipulate the compensation MUST be at least 5 times the back wages owed.


2) Freedom of Information derived from Right to Fairness


At every stage of the Green Card/H1/L1 process, employee MUST be given a copy of all the documents submitted by the Employer to DOL and USCIS. DOL/USCIS/Visa consular offices must give (or send) the employee a letter or document which fully explains his legal rights and protection against abuse. DOL and USCIS must be establish a Hot-line to assist foreign workers in determining if a certain employer practice constitutes abuse or not. It should also assist the employee in filing a case if the employer is found to be in violation of law.


3) Whistle Blower Protection derived from Right to Equality

Federal law does provide limited Whistle Blower protection. However, the current Federal law doesn’t go far enough to cover the immigration status of the Whistle Blower.

Information provided to the DOL/USCIS/Other government agencies to report in good faith about any law violation, shouldn't be allowed as the reason for denying/revoking past, present or future Immigration benefits for the employee who decides to report an employer. The current Immigration status of the employee should be preserved once the complaint is received. Employer shouldn't be allowed to revoke the visa while investigations are pending, and thereafter if employer is found to be in violation of Immigration law. Employee should be allowed to change jobs during the investigation if he/she wishes so. Changing jobs shouldn't impact the case or the Immigration status adversely.


USCIS/DOL MUST ask the Employee if he/she has been threatened with monetary, physical, Immigration and other adverse consequences by the Employer. If it turns out that there was a threat, suitable legal action should be initiated through the law-enforcement against the Employer.


4) Full Job portability derived from Right to Fairness


An employee shouldn't be required to work for the same employer who applied his/her Immigration application, if he/she isn't happy with them. Employee should be able to change to "same or similar" jobs at any stage of Immigration process without losing any Immigration benefits. Same benefits as provided by AC21 (American Competitiveness in the 21st Century) law to 'Adjustment Of Status' applicants post-180 day processing period must be extended to all stages of Immigration process with no time limits (meaning portability becomes effective the minute application is submitted to DOL/USCIS)

Definition of "same and similar" should be implemented as intended in the spirit of the law so that foreign workers could get promotioned within the same employer, or accept higher positions with other employers commensurate to their skill and experience. Full portability MUST be provided in the field of work for which the original application was submitted. For instance a person who applied for Computer Programmer should be able to become a Computer Analyst, Software Engineer, Software Designer, Software Architect or Project Manager in the software field.

USCIS regulations implements only the “same job occupation classification” and totally eliminates implementing “similar job occupation classification” for AC21. This requires administrative changes to USCIS intrepetation and rule to widen the SOC/O*Net codes available to a person changing jobs, in accordance with the intent and spirit of the AC21 law.

------------------------------------------------------------------------------------------------------------

These points if implemented in rule making or law will go a long way safeguarding the interests of the entire US workforce and the minority of EB immigrants who suffer due to abuse.

It's very important that we LEGAL Employment-based immigrants, who follow all the rules and go by the book, take a lead in providing direction to the Worker protection reform instead of letting blatantly anti-immigrant organizations hijack the issue, and misuse it to harm our entire community for the misdeeds of a few.

If you support the points mentioned above please indicate your support my voting 'yes' to the poll provided above.

This is NOT a thread to discuss about the employer abuses that may have happened to you or others, in the past or the present. Lets keep the thread focussed on the purpose of creating a voluntary momentum in our community to support and pursue reform of EB worker protection in a positive workable manner.

Thanks for your support.

Omm
01-16-2008, 12:38 PM
Dear Walking Dude,
I hope this is can be put in to action , I currently have similar problems .
4) Full Job portability derived from Right to Fairness --
It was like a ray of light in current darkness.. I hope to see that day.

Omm
01-16-2008, 12:45 PM
I wouldn't even care about green card if atleast these changes are made to H1B Why should be an employer be assosiated with H1B ? when H1b is granted based my abilities and my experince, why should there be a sponsership every time you change a job. The system is absolutely not right !


why does anyone who comes on H-1B need to have thoughts of "freedom"? This is a free country damn it. The fact that you are using unfavorable and demeaning phrases to describe your condition is a clear indication that the H-1B system is messed up.

Why should you have to feel obligated to any employer who files for your H-1B? The premise is that you will work for the company, help it succeed and at the same time serve your personal goals.

Sure the problem of indians and bangladeshis in the arab countries is far worse, but that is a subject of a separate dicussion, on a different board.

The only way to stop the abuse of H-1B visa and professionals is to make provsions where:
- H-1B visa holders can switch jobs freely, perhaps in the same general occupational classification - no sponsorship required
- H-1B visa holders do not automatically fall out status if laid off, or fired. There needs to be some grace period - say a couple months to find a job or sell your house/car etc, get the kids out of school etc. , and leave.

H-1B visa holders are at a disadvantage from the very start - taxes, gc, travel, etc. This is not a level playing field and kudos to those of us who have worked hard and managed to hang in there.

chanduv23
01-16-2008, 12:59 PM
I wouldn't even care about green card if atleast these changes are made to H1B Why should be an employer be assosiated with H1B ? when H1b is granted based my abilities and my experince, why should there be a sponsership every time you change a job. The system is absolutely not right !

The system was cunningly designed to favor the employers and to satisfy the locals. A path was created towards perm residency and Currently this system deos not seem to work as intended due to a lot of reasons. Thats why we suffer and try to fix the system

walking_dude
01-16-2008, 09:12 PM
True, CEOs don't sign the Immigration papers in big companies, it's usually HR managers . In smaller companies where most of these abuses occur CEO, President, HR is usually the same person. Bigger companies also don't abuse the visa situaton as much as in small companies.

Hypothetically CEO can walk free. But who'll wish to work as HR in the company where they expect to land in jail? Soon HR work may fall on CEO himself/herself! CEO will also feel the heat in an indirect way.
They'll decide soon it's not worth the trouble, legal hassles, compensations and bad publicity that hurts their business.


Walking dude..very good points. I agree but what's the definition of employer here, is it the HR manager or the CEO? Should this be similar to SOX compliance where the CEO is held resposible for any screwup like Enron. I'm afraid unless the punishment goes to the highest level, scapegoats will be made and the CEO will simply walk away?

walking_dude
01-16-2008, 09:14 PM
Thanks guy fromsg, maxine, santb, Omm.

Santbs post makes it clear that if foreign workers are given the requisite protections, they will not be any possibility of abuse or exploitation

walking_dude
01-17-2008, 06:29 PM
Thanks to all 101 IV members who have supported the initiative.

I also urge others to support the proposal and send the message that we, EB Immigrants, are not willing participants in abuse. We would like to see the abuse end in a positive, workable way way.

If you agree with the proposal, please vote 'yes' in the poll.

walking_dude
02-04-2008, 01:53 PM
We need to keep this effort in the forefont. Law must be changed to provide full job mobility to foreign workers. That alone will end the abuses.

apb
02-04-2008, 02:04 PM
WD.. Very thoughtful and brilliant.
Covers most of the present gray areas.

walking_dude
02-04-2008, 03:58 PM
It's unfortunate that Durbin-Grassley is increasingly proposed as a fix to abuse of foreign workers by a few scofflaw organizations.

Durbin-Grassley proposes the following so-called fixes

1) Bar ALL H1Bs from working as contract workers
2) Make H1B change as hard as Green Card labor
3) Increase H1B fees by another $5,000

Durbin-Grassley denies opportunities for future Vishal Goel's to file lawsuits against employers for backwages. It will create a class of workers who work at employers offices on paper, but in reality work at client site . These workers will find it difficult to change jobs ( American contracting companies can't hire them). If they file cases against employer, they'll become 'illegals'! It will make the situation worser instead of improving it.

It will make it hard for abused workers to change jobs. It will take a few months to get new H1B ( it will be as rigorous as GC labor certification). They also need to find an employer ready to spend an astronomical fees to hire them.

In other words, Durbin-Grassley will only benefit employers who abuse their foreign workers. It will takeaway the option of legal recourse from H1Bs. It will create more of so-called "indentured workers" instead of eliminating the employer abuses.

Only real fix is guaranteeing legal protections to foreign workers and provide full job mobility.

walking_dude
02-04-2008, 06:29 PM
Let me know your thoughts on this proposal. Lets help reform the law in a meaningful and sensible way.