Gang of Eight's Comprehensive Immigration Fraud

By John Miano on May 10, 2013

The Gang of Eight's immigration bill has now grown from 844 pages to 867 pages.

One of the changes is to include "comprehensive immigration reform" in the title.


While reading a section on H-1B visas, I came across a provision that epitomizes the fraud a disconnected Washington elite is perpetrating on the American people with so-called "comprehensive immigration reform".

Let me give a little background first. H-1B visas are the mechanism employers use to replace Americans in occupations that require a college degree with cheap foreign workers; primarily in the computer industry.

To get an H-1B visa, employers are required to certify a number of things about the nature of employment.

Examples include certifying that they are paying the prevailing wage (which, as defined by the H-1B category, is significantly less than the actual prevailing wage) and, for employers with more than 15 percent of their workforce on H-1B visas, certifying that they have recruited U.S. workers in good faith. The first step in applying for an H-1B visa is to submit a Labor Condition Application (LCA) making these declarations.

You can find a copy of an LCA here. Notice that to comply with the requirement to recruit Americans (for those employers to whom it applies), the employer merely checks a box (p. 4). In fact, other than the wage information, all the certifications are made by checking a box.

The entire LCA process is a meaningless paper-shuffling exercise.

The H-1B statutes include this notorious provision, illustrating the problem of having lobbyists write our laws:


The Secretary of Labor shall review such an application only for completeness and obvious inaccuracies. Unless the Secretary finds that the application is incomplete or obviously inaccurate, the Secretary shall provide the certification described in section 1101 (a)(15)(H)(i)(b) of this title within 7 days of the date of the filing of the application.




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This restricts the review of LCAs to checking that the form is filled out correctly. For example, let us assume that an employer made no effort whatsoever to recruit Americans yet checked the box that it did on the LCA. The Department of Labor has to approve the LCA because the box was checked correctly. Likewise, the employer can make up an extremely low prevailing wage and know that the LCA will be approved.

There is a simple solution to this problem in the H-1B program: delete that sentence.

The Gang of Eight shows their bad faith in § 4214 of their bill. It would re-word the offending provision to this:


The Secretary of Labor shall review such an application only for completeness and evidence of fraud or misrepresentation of material fact and obvious inaccuracies. Unless the Secretary finds that the application is incomplete or presents evidence of fraud or misrepresentation of material fact, or is obviously inaccurate, the Secretary shall provide the certification described in section 1101(a)(15)(H)(i)(b) of this title within 7 days of the date of the filing of the application.



The problem is that fraud and misrepresentation are higher standards than complete or obviously inaccurate. Those standards require not only a misstatement but also intent to make that misstatement. The Gang of Eight is demonstrating that they know where the problems in H-1B are; that they are going out of their way to not fix the problems; but that they want to make it appear that they are reforming the system.

To add insult to injury, the Gang of Eight wants to create a new visa for agriculture workers in § 2232. That program has alleged worker protections that are nullified by a similar provision:


The Secretary of Homeland Security shall review each petition submitted by designated agricultural employers under this paragraph for completeness or obvious inaccuracies. Unless the Secretary of Homeland Security determines that the petition is incomplete or obviously inaccurate, the Secretary shall accept the petition.



This is not comprehensive reform. It is comprehensive fraud on the part of our legislators.