DOL Better than USCIS on Migration-Related Labor Issues

By David North on May 19, 2010

Generalizations are risky, but it appears to me that Obama's Labor Department is rather more careful about flooding labor markets with migratory labor than Obama's U.S. Citizenship and Immigration Services (USCIS), with the Department of State and other Department of Homeland Security agencies somewhere in between.

Interestingly all three departments, for the first time in history, are led by women, all of whom formerly held elective office in border states. The secretaries are Janet Napolitano (DHS), former governor of Arizona, Hillary Clinton (DOS), formerly senator from New York, and Hilda Solis (DOL), one-time member of Congress from southern California.

In many, but not all, migration programs each of the three departments plays a role; and in each the question of who pays for migration-related services – the taxpayers, generally, or the benefiting migrant and/or his or her employer – is an issue. So there are multiple grounds for comparison.

Perhaps the clearest indication of the policy tendencies of the three departments comes in the H-1B arena, and in the multi-billion dollars-a-year matter of migration-related fees.

H-1B: This was, until just recently, a high-volume temporary nonimmigrant worker program primarily used for high-tech workers; its critics say that it reduces wages below market levels and shoulders American workers out of jobs.

The program has fallen on hard time recently, with the recession apparently causing there to be only 19,100 petitions filed in early April against the annual limit of 85,000 slots. This was reported in a previous blog.

The Labor Department, unable to do anything about the basic, wage-cutting nature of the program, has recently taken three sharp steps to manage it more closely.

1) Late in the winter, it publicized the fact that it levied nearly $2 million in fees and back-wage charges on Peri Software Solutions, an H-1B user in New Jersey that had been underpaying it workers.

2) It promised to conduct a huge number of additional H-1B investigations, 25,000 in all, as reported in Immigration Daily.

3) And it has unveiled a new interactive electronic system which allows resident or H-1B workers to check out their rights under the law. The department already has a commendable system for showing how many H-1B workers every participating employer has, as well as the wages that the employer says it is paying. (You can scroll through it, for instance, and find out how many people Goldman Sachs is hiring through this program, get their job titles and their stated salaries; you can do this with any H-1B user.)

USCIS, meanwhile, has a mixed record. Following the sharp fall in H-1B applications, which means an equally sharp fall in fees for that largely fee-supported agency, it ran an advertisement on its webpage noting the availability of these visas. (It is currently one of several rotating images on the site.)

On the other hand earlier in the year it issued a policy memorandum regarding one of the major uses of the H-1B program, by job shops, that some defenders of the program regarded as detrimental to a certain class of employer.

Some immigration inspectors at some U.S. airports, reporting to a different part of DHS, began using that memorandum to deny admissions to some newly-arriving, or returning, H-1B workers.

To my knowledge the State Department has made no significant moves in the H-1B field.

Fees: Both the State Department and the Labor Department have taken positive steps to increase the fees that they collect from those using the migration systems (employers as well as migrants) while USCIS has dragged its feet.

State holds the first place here; it has legal authority to collect fees needed to support its document-issuing programs and it has announced a new level of fees that once in place will produce at least $84 million a year; it also has another proposal for raising other fees that will net a roughly similar amount.

In previous years, Congress had, for all practical purposes, prevented the Labor Department from collecting fees from employers seeking the labor certifications that can lead to nonimmigrant visas for many and green card status for a somewhat smaller number of persons. The Obama Administration has, in the most recent round of budget proposals, asked Congress to allow the department to collect fees to meet the labor certification costs, though the amounts are not specified.

USCIS, meanwhile, is still contemplating asking for an increase in fees, and has asked for a substantial increase in appropriated funds, at an appropriations committee hearing I attended; for more on this see an earlier blog. The director of the agency, Alejandro Mayorkas, when talking about fees mentions their impact on immigrant families but never, in my hearing, talks about the fees paid by immigrant investors or employers seeking temporary alien workers.

Other matters: When I asked Mayorkas at a stakeholders' meeting what his agency was doing, in view of the fact that there are about 10 million unemployed residents of the U.S., to lower the admission levels of nonimmigrant workers he said that such a task was "not our mission."

In contrast, the Department of Labor has totally rewritten the rules for its temporary farm worker program, which the Bush Administration had drawn up at the request of major agricultural interests. The new regulations are far more concerned about wages and working conditions for temporary workers and their resident competitors than the previous ones.

In short, while it is one administration, one part of it is much more concerned about international migration depressing U.S. labor markets than another.