Are U.S. workers second-string IT hires?

Why is the Department of Labor refusing to post on its Web site a database of more than 50,000 job openings — many for IT workers — for 2006? Are they precluded by law to do so, as a DOL spokesperson claims?

This issue is part of a controversy currently raging between the DOL and professional organizations such as the Programmers Guild about the U.S. Citizenship and Immigration Services (USCIS, formerly the Department of Immigration and Naturalization) H-1B visa quota for 2006.

Here’s how USCIS defines an H-1B visa: “Established by the Immigration Act of 1990 (IMMACT), the H-1B nonimmigrant visa category allows U.S. employers to augment the existing labor force with highly skilled temporary workers. H-1B workers are admitted to the United States for an initial period of three years, which may be extended for an additional three years. The H-1B visa program is utilized … to employ foreign workers in specialty occupations that require theoretical or technical expertise in a specialized field. Typical H-1B occupations include architects, engineers, computer programmers, accountants, doctors and college professors.”

The DOL requires that U.S. employers who want to hire someone on an H-1B visa first submit what is called an LCA (Labor Condition Application). The LCA describes (briefly — sometimes just a title) the opening available. Thus far, the department has received 51,939 LCAs. Programmers Guild President Kim Berry and others are calling for the DOL to post these LCAs and make them searchable, so that anyone can apply for the open positions.

The cap for H-1B visas in 2006 is set at 58,200, but apparently, according to the USCIS Web site, 22,383 visas have already been approved and 29,556 are still pending. Berry says the DOL is “refusing to disclose the opening to U.S. citizens so that they may have equal opportunity to apply for and fill these U.S. jobs.”

David James, a spokesman for the DOL, says, “… statutorily speaking, Congress doesn’t give the authority to us, the Department, to do what you are asking us to do. We comply to the fullest extent that the law allows us to comply. This is a congressional legislative matter. The statutory language is very narrow about what we can and cannot do.”

Berry says no statute specifies when and how LCA records are released. He believes that the DOL is stonewalling requests by organizations like his to publish these openings on the DOL Web site, despite the fact that a foreign worker with a valid 2006 H-1B visa could not start employment until October 1, 2005. What’s more, Berry says that a disproportionate number of these openings are for software engineers and computer programmers.

Employers are under no obligation to hire Americans, but the DOL should be obligated to make the information available to the public before the jobs are filled, not after, says Berry.

Norman Matloff, professor of computer science at the University of California, Davis, e-mailed me that “there is no question that the Department of Labor, ironically, is acting in a manner hostile to labor.” I couldn’t agree more.

Is the government exempt from treating customers — in other words, taxpayers — with respect? Does customer service not exist in its vocabulary? If there is a reason why the DOL cannot post these positions, it should cite the statute. Or better yet, help lobby for a change.