Fwd:Sun faces H-1B visa probe

[david at thekramers.net (David Kramer)]

Sun faces H-1B visa probe

By Ed Frauenheim
Special to ZDNet News
December 17, 2002, 5:40 AM PT

SAN FRANCISCO--The Department of Labor began an administrative law hearing
Monday into whether Sun Microsystems violated regulations concerning the
employment of foreign workers in the United States on temporary H-1B work
visas.
The hearing was prompted by allegations by Guy Santiglia, a former systems
administrator at Sun, who said that even as the company was laying off him
and thousands of other employees, it retained H-1B workers and was applying
for the ability to hire thousands more. Santiglia also accused Sun of
violating his right to inspect public records.

H-1B visas, which allow skilled foreigners to work in the United States for
up to six years, have sparked controversy in the past several years. During
the current technology slump, unemployed U.S. tech workers have voiced anger
at the way the visas allow foreigners to hold scarce jobs.



Critics also charge the guest workers make less than U.S. workers, thereby
undercutting U.S. wages. Still, legal challenges to the program have been
rare, said Michael Hethmon, an attorney with the Federation of American
Immigration Reform who is representing Santiglia. "Because of the Byzantine
nature of the regulations, it's been very difficult for guys like Mr.
Santiglia to go forward and prepare a complaint," Hethmon said.

Sun spokesperson Diane Carlini said the company didn't take national origin,
visa status or salary into account in cutting its work force from about
42,000 to 35,000 beginning about 18 months ago. To have considered national
origin or visa status would have amounted to discrimination, she said.
Carlini couldn't say whether any H-1Bs workers have been hired during the
past 18 months, but said the company has done very little hiring during the
tech downturn.

Santiglia's case is without merit, Carlini said, pointing out that a Labor
Department investigation of his claims found no violations of law in how Sun
made use of the program. She also said other federal agencies, such as the
Equal Employment Opportunity Commission and Department of Justice, have
dismissed claims against Sun by Santiglia.

The case Monday, heard by Department of Labor Judge Jennifer Gee, stemmed
from Santiglia's appeal of the Labor Department's initial ruling.

Santiglia's complaint focuses on part of the process of securing an H-1B
visa, known as the Labor Condition Application (LCA). The document requires
employers to describe the salary that will be paid to the guest worker and
to testify that use of the visa won't harm working conditions of similar
U.S. employees. Santiglia said Sun's employment of H-1B visa holders
adversely hurt his working conditions, in that he and three other U.S.
employees were laid off in his work group while three H-1B visa holders in
the group were retained.

Along with other allegations, his complaint also charges that Sun didn't
properly post notices of LCAs in the workplace, that Sun failed to
accurately describe the prevailing wage rate for specific jobs, and that the
company didn't provide proper access to public documents. Santiglia said Sun
didn't let him photocopy its LCAs, barred him from seeing them for several
months, and ultimately required him to sign a statement precluding him from
reproducing the material.

Roxana Bacon, an attorney representing Sun, argued Monday that the company
never prevented Santiglia from taking notes by hand. She also said Sun had
to take steps to protect the safety of employees because Santiglia raised
his voice with Sun officials. Bacon told Gee that the company has been
reasonable in giving him access to the LCAs. "Not only has there been no
reprisal against Mr. Santiglia, there's been every effort to accommodate
him," she said.

During the opening day of the hearing Monday, Gee upheld Sun's motion to
preclude the expert testimony of Norman Matloff, a computer science
professor at the University of California, Davis. Matloff has long been a
critic of the H-1B program and has testified before Congress on the matter.
Gee said Matloff's expertise wouldn't contribute to a decision about whether
Sun had followed Labor Department regulations.

But Matloff said during a break in the hearing that Sun's use of H-1Bs
harmed comparable U.S. workers by pressuring them to work longer hours,
given that H-1Bs themselves are likely to work long hours. H-1Bs are
beholden to employers, Matloff said, partly because the guest workers may
rely on the employer initially to obtain permanent residency status.

Santiglia worked at Sun's Santa Clara, Calif., campus as a full-time
employee for about four months before being laid off Nov. 5, 2001. He had
worked as a contractor at Sun since late November 2000. Prior to the
beginning of Sun's layoffs in 2001, about 4 percent of the company's workers
were H-1Bs. Carlini said Monday that she didn't know the current percentage
of H-1Bs.

Santiglia isn't the only U.S. tech worker taking an H-1B related case to the
courts. Pete Bennett, an out-of-work Web programmer currently working in the
mortgage business, filed a claim with the Department of Justice, saying
employers rejected him on the basis of national origin. Bennett, a Danville,
Calif., resident who runs the Web site Nomoreh1b.com, suggests additional
legal challenges are coming. "There are more popping up every day," he says
"People are fighting back."

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DDDD   David Kramer         david at thekramers.net       http://thekramers.net
DK KD  
DKK D  "Put your hand on a hot stove for a minute and it seems like an hour.
DK KD  Sit with a pretty girl for an hour and it seems like a minute.
DDDD   That is relativity."                                - Albert Einstein