Labor Certification – Making it Hard for Talented Foreign-Born to Stay in the USA

Many people would find it odd that after a company recruits for a position the federal government may require the employer to recruit again. That is the strange world of labor certification, a process required by law for many skilled foreign nationals to gain employment-based green cards. Given that Indians are the largest recipients of H-1B temporary visas each year, America’s questionable labor certification policy likely affects Indians more than any other group.

When sponsoring an individual for an employment-based green card, the Department of Labor mandates that employers place advertisements to show no U.S. workers are available to fill the jobs, detail recruitment results, and complete much paperwork subject to government review.

Surprisingly, the actual language of the law does not specifically say employers need to place advertisements. This is an invention of the Department of Labor. The law also does not specify that if employers “test” the labor market they must hire anyone “minimally qualified” for the job. These things come from the Department of Labor’s regulations.

Here is what the section of the Immigration and Nationality Act on labor certification states:

Any alien who seeks to enter the United States for the purpose of performing skilled or unskilled labor is inadmissible, unless the Secretary of Labor has determined and certified to the Secretary of State and the Attorney General that—
(I) there are not sufficient workers who are able, willing, qualified (or equally qualified in the case of an alien described in clause (ii)) and available at the time of application for a visa and admission to the United States and at the place where the alien is to perform such skilled or unskilled labor, and (II) the employment of such alien will not adversely affect the wages and working conditions of workers in the United States similarly employed.


In the past, the Department of Labor has admitted its process is paperwork-intensive for both the government and companies. In 2002, when the Labor Department issued a proposed rule to revise the system, its own rule stated, “The process for obtaining a permanent labor certification has been criticized as being complicated, time consuming and requiring the expenditure of considerable resources by employers, SWAs [state workforce agencies] and the Federal Government. It can take up to two years or more to complete the process for applications that are filed under the basic process and do not utilize the more streamlined reduction in recruitment process.”

While since then the Department of Labor has moved to a somewhat different system called PERM (Program Electronic Review Management), the new system is not much of an improvement. While PERM is theoretically faster in the initial stage, since it relies on attestations, the Department of Labor audits a high percentage of the cases. It also can force employers to engage in “supervised recruitment” if they hope to gain a green card for an employee. A chapter in the American Immigration Lawyers Association’s handbook declared, “Understanding PERM has been one of the greatest challenges in recent times in the practice of immigration law.” And PERM was meant to be the Department of Labor’s “streamlined” system.

The United States is making itself less competitive by requiring such a bureaucratic and counterproductive process for employers that wish to keep skilled professionals working for them long-term. “I have personally seen foreign nationals with U.S. masters degrees go to more welcoming countries abroad to settle because the U.S. system is so time consuming and complex,” said Ann Pinchak, a Houston-based attorney with more than 20 years of experience in immigration law.

If America hopes to retain the most talented workers in the world, a good place to start is reforming the Department of Labor’s labor certification policies. The policies do not “protect” American jobs but waste resources, discourage foreign-born professionals and make U.S. companies less competitive in the global economy.

The New Normal

US – India relations have now settled into a stubborn pattern of routine interactions and small-bore ideas.

The inaugural session of the annual US-India Strategic Dialogue in Washington last summer imparted new energy to bilateral affairs following a period of treading water.  President Obama used the occasion to announce his visit to India and emphasized that partnership with New Delhi was one of his “highest priorities.”  In the meeting’s warm afterglow, Under Secretary of State William J. Burns (now nominated as Deputy Secretary of State) remarked that “even the sky is not the limit for our ambitions and our possibilities.”

Clinton-Krishna_photoThe Strategic Dialogue had its second convocation last week in New Delhi, co-chaired by Secretary of State Hillary Rodman Clinton and Indian Foreign Minister S.M. Krishna.  Judging by its modest output, bilateral relations are now on a low-flying trajectory.  Not too long ago, soaring rhetoric and visionary initiatives were the staples of such high-level confabs.  But ties between the two capitals have now settled into a stubborn pattern of routine interactions and small-bore ideas.  In its wrap up of the Dialogue’s events, the Hindustan Times observed that “There is a clear and obvious sense of drift in relations” and that the bilateral exchanges the countries have established in a myriad of fields “don’t seem to generate much in tangibles.”  Call it the new normal in US-India relations.

Secretary Clinton noted that her meetings with Krishna “felt like we were in a monsoon with all of the many issues and reports that were being made by our officials outlining the extraordinary progress that has occurred.”  But it was hard to avoid the monsoon-sized cloud of mutual frustration hanging over the proceedings.  Even the Bush-Singh nuclear deal, intended to be the capstone of a new partnership, has now become a source of acrimony, with both sides accusing the other of breaches of faith.

From the U.S. perspective, India’s nuclear liability law is inconsistent with global norms and has the effect of all but blocking the involvement of U.S. companies in the country’s lucrative nuclear energy sector.  Washington wants New Delhi to ratify the Convention on Supplementary Compensation (CSC), a multilateral accord regulating liability for nuclear accidents, apparently in the belief the Indian government will submit to the notion that international law should somehow override the strictures of newly-enacted domestic legislation.  Mrs. Clinton even went so far as to suggest that the International Atomic Energy Agency vet the liability law for its compliance with international practice.  Both ideas are quixotic, as they represent a severe misreading of what the political market will bear in India’s sovereignty-conscious democracy.  Moreover, since the CSC is far from gathering the requisite number of ratifying countries to trigger its entry into force, it is unclear why Washington thinks New Delhi’s ratification will have any practical result.

For its part, New Delhi is peeved about U.S. sponsorship of restrictions just promulgated by the 46-nation Nuclear Suppliers Group, an informal cartel regulating global nuclear commerce, regarding the export of uranium enrichment and spent-fuel reprocessing (ENR) technologies. Much of the future expansion of India’s nuclear energy sector is premised upon access to such equipment, something which many in the country thought was secured via the nuclear accord.  The United States has assured New Delhi that the new restrictions will not undercut the special status India now has in the international nuclear order.  But the Bush-Singh deal never extended to the delivery of ENR technology, a point that Prime Minister Singh’s government found expedient to obscure during the tumultuous vote of confidence three summers ago. Mrs. Clinton departed India hinting that unresolved problems still plague the issue.

The discussions also did little to assuage Indian concerns about the impact of the U.S. troop drawdown in Afghanistan, or persuade New Delhi that it should assume a greater leadership role in Asian security affairs as a bulwark against China’s growing power. Of course, the two issues are linked: New Delhi is very unlikely to be more active further afield when its security position in the subcontinent is under mounting threat. The assassination of two of Hamid Karzai’s closest confidants – one of whom his half-brother – just days prior to the Dialogue’s convening rattled New Delhi, and the Obama administration’s progressive disengagement from Afghanistan will only complicate Indian security calculations.

Although the Clinton visit produced an announcement of a new trilateral dialogue involving New Delhi, Washington and Tokyo – as well as the establishment of formal bilateral exchanges on the Middle East and Central Asia – the innate caution of India’s foreign policy elites will most likely disappoint American expectations about what the Indian government brings to the table.

Two items involving the itinerary of Mrs. Clinton’s traveling party illustrates the US-India policy disconnects.  First, a few months ago New Delhi rejected Washington’s efforts to broaden the Dialogue by involving the two countries’ defense ministers. U.S. Defense Secretary Robert Gates was reported all set to accompany Clinton to New Delhi in April when the Dialogue was originally slated to take place. And as it turned out, Gates’ successor, Leon E. Panetta, was in Kabul just a week before the Dialogue and could presumably have rearranged his schedule to attend the gathering in New Delhi had the Indians wanted to expand the forum’s remit.

Second, Mrs. Clinton gave public emphasis to her point about India stepping up its security role in Asia in an address in Chennai (formerly Madras). According to U.S. officials, Chennai was chosen as the ideal platform for this message given its strong commercial ties to Southeast Asia.  But The Telegraph reports that, due to Washington’s desires to expand U.S. commercial interests in West Bengal, Clinton had at first wanted to visit Kolkata (Calcutta). This proposal was nixed by the Indian government, however, fearful that it would be seen as a provocation to the Indian Left.  Clinton’s second choice of Amritsar was quickly dropped due to a lack of local enthusiasm. The decision to go to Chennai was hastily done and came as a surprise to U.S. diplomats in India.

In the run-up to last week’s meetings, some experts in Washington (see here and here) exhorted the Obama administration to use the gathering as a means of expanding strategic engagement with India. But the opportunities for doing so are quite constrained by the domestic distractions both governments confront. In India, the Singh government is engulfed by various corruption scandals that have all but paralyzed decision making. The titanic political struggle to push the nuclear accord through parliament has resulted in “Washington fatigue,” sapping any readiness to undertake similar high-profile initiatives. And despite Singh’s personal commitment to furthering bilateral ties, he is neither the master of his own government nor of his party.  Many of his Congress Party colleagues are not fully invested in the future of the relationship.  Even in the foreign policy area where he once had some latitude, Singh cuts an increasingly isolated figure. The recent WikiLeaks revelations have added to his political problems, as some interpret the cables as depicting him being excessively accommodating of U.S. interests.

In Washington, predicaments at home and abroad have combined to push India fall down the Obama administration’s priority list.  A reciprocal sense of “India fatigue” is also spreading. New Delhi’s rejection of Boeing and Lockheed Martin’s bids in its $11 billion fighter aircraft competition and the prolonged inability of U.S. companies to cash in on the nuclear deal have made Washington policy elites increasingly weary of India’s capacity for strategic engagement. It is no coincidence that Secretary Clinton arrived in New Delhi just as a debate erupted about whether India was or could ever be a genuine “ally.”

Given the state of things in both capitals, the “new normal” looks to be with us for the next few years, at least.

Managing National Security: Structural Flaws

Despite complex external and internal security threats, unresolved territorial disputes, the rising tide of left wing extremism (LWE) and urban terrorism, India’s national security continues to be sub-optimally managed.

In 1999, the Kargil Review Committee headed by the late Mr. K Subrahmanyam had made far reaching recommendations on the development of India’s nuclear deterrence, higher defence organisations, intelligence reforms, border management, the defence budget, the use of air power, counter-insurgency operations, integrated manpower policy, defence research and development, and media relations. The Cabinet Committee on Security appointed a Group of Ministers (GoM) to study the Kargil Review Committee report and recommend measures for implementation. The GoM was headed by Home Minister L K Advani and, in turn, set up four task forces on intelligence reforms, internal security, border management and defence management to undertake in-depth analysis of various facets of the management of national security.

The GoM recommended sweeping reforms to the existing national security management system. On May 11, 2001, the CCS accepted all its recommendations, including one for the establishment of the post of the Chief of Defence Staff (CDS) – which has still not been implemented. A tri-Service Andaman and Nicobar Command and a Strategic Forces Command were established. Other salient measures included the establishment of HQ Integrated Defence Staff (IDS); the Defence Intelligence Agency (DIA); the establishment of a Defence Acquisition Council (DAC) headed by the Defence Minister with two wings: the Defence Procurement Board and the Defence Technology Board; and, the setting up of the National Technical Research Organisation (NTRO). The CCS also issued a directive that India’s borders with different countries be managed by a single agency – “one border, one force” – and nominated the CRPF as India’s primary force for counter-insurgency operations.

Ten years later, many lacunae still remain in the management of national security. In order to review the progress of implementation of the proposals approved by the CCS in 2001, the government has now appointed a Task Force on National Security and given it six months to submit its report. The task force must review the performance of the National Security Council (NSC), which is responsible for long-term threat assessment and the formulation of comprehensive perspective plans designed to upgrade the capabilities of the security forces to meet future threats and challenges. The task force must also consider whether the NSA should continue to remain only an advisor or he should be given limited executive functions, particularly for counter-terrorism operations, including covert cross-border operations, and intelligence coordination and assessment. Cyber security and offensive cyberwar operations also require apex level policy guidance and oversight.

The integration of the armed forces HQ with the MoD continues to remain cosmetic and needs to be revisited. An issue that needs no further debate is the appointment of a Chief of Defence Staff as the principal military advisor to the government. It is an idea whose time has come. However, the appointment of a CDS should be followed by the establishment of tri-Service integrated theatre commands for greater synergy in the planning and execution of military operations and aid to civil authority. Another key requirement is for the immediate raising of an integrated cyber, aerospace and Special Forces command.

The task force must also consider whether it is necessary to appoint a constitutionally mandated National Security Commission to oversee the day-to-day management of national security in this era of strategic uncertainty and threats and challenges that are continuously evolving and morphing into new forms.

News that Pakistan Spies on Immigrants Shows Risks Faced by Émigrés

The New York Times recently reported the disturbing news that Pakistani immigrants to the United States may not feel safe from their government – even when living thousands of miles away from the homeland they departed. The news fits a pattern that shows immigrants often face risks most native-born American may find hard to fathom.

Credit: indiavision.comThe Federal Bureau of Investigation (FBI) discovered that Mohammed Tasleem, an attaché in Pakistan’s New York consulate, was engaging in systematic intimidation of Pakistani immigrants and temporary visa holders on behalf of Pakistan’s Inter-Services Intelligence (ISI). “Mr. Tasleem, they discovered, had been posing as an F.B.I. agent to extract information from Pakistanis living in the United States and was issuing threats to keep them from speaking openly about Pakistan’s government,” reports the New York Times. “His activities were part of what government officials in Washington, along with a range of Pakistani journalists and scholars, say is a systematic ISI campaign to keep tabs on the Pakistani diaspora inside the United States.”

The article describes how at conferences and seminars in the U.S. individuals would identify themselves as working for ISI and sometimes ask threatening questions. “The ISI guys will look into your eyes and will indirectly threaten you by introducing themselves,” the author said. “The ISI makes sure that they are present in every occasion relating to Pakistan, and in some cases they pay ordinary Pakistanis for attending events and pass them information.”

That’s not the end of the story. “Several Pakistani journalists and scholars in the United States interviewed over the past week said that they were approached regularly by Pakistani officials, some of whom openly identified themselves as ISI officials,” according to the New York Times. “The journalists and scholars said the officials caution them against speaking out on politically delicate subjects like the indigenous insurgency in Baluchistan or accusations of human rights abuses by Pakistani soldiers. The verbal pressure is often accompanied by veiled warnings about the welfare of family members in Pakistan, they said.”

Here is some free advice for the members of Pakistan’s government: If you don’t want people to accuse Pakistani soldiers of human rights abuses then do your best to make sure such individuals do not abuse human rights. Attempting to intimidate people who now live and work in the United States is counterproductive, making Americans less sympathetic to policy arguments that may be offered by Pakistan.

Visits to international students and scholars by officials of other governments are not unheard of. There are specific provisions in the U.S. immigration code designed to protect asylum seekers who fear repression under China’s one-child policy. Stories of Chinese government officials visiting one or more pregnant Chinese students in the United States helped make the case for such provisions.

It is difficult for immigrants or temporary visa holders to the United States to ignore threats (implied or otherwise) made against family members still living in their homeland. One can imagine the guilt experienced by someone who feels that by exercising the right to freedom of speech in America he or she is putting at risk a family member back home.

Middle Eastern governments are also known to keep tabs on nationals studying or working in the United States, although reports indicate a degree of subtleness in how they deal with such individuals in America. But as with the case of Pakistan, when Americans become aware of attempts to intimidate people working or studying in the U.S. they look unkindly on whichever government is doing the intimidating.

Yesterday, once more?

And just like that, the much awaited, once postponed India-US Strategic Dialogue came and went, with not even the the tiniest frisson of excitement of that had accompanied previous Dialogues. Minders on both sides must have been secretly pleased that the Murdoch slugfest in London came in as a suitable excuse to explain away the limited interest and analysis of the Strategic Dialogue in the media. With new lists of grievances building up on both sides to replace the long-drawn out lists of the Cold War era, the Strategic Dialogue process has had the unintended consequence of focusing attention on these issues for which all available political capital has been expended or there is no solution even at the highest political levels.  Given this reality, the reports of half-hearted wagging of fingers and admonishments behind closed doors were more for the benefit of respective constituencies than to move the process forward. The overriding urge to prevent any SNAFUs meant that Mrs. Clinton proposal to visit Kolkata as part of itinerary was shot down by the hosts. And whilst Mrs. Clinton broke bread with all her leading interlocutors, from the Prime Minister downwards, the glaring exception was Defence Minister A K Antony, for whom the Dialogue that was to take place in April had been postponed since he was ostensibly busy with the Kerala elections.

01-1The U.S. side, in particular, has become a master at the art of coming out with comprehensive factsheets laying out the massive advances in joint projects, emphasizing the width and breadth of the partnership.   With many of the bilateral agreements signed over the years stuck at various stages of implementation, it is almost as if both sides were virtually scrapping the bottom of the barrel this time around to come out with agreements on cyber security cooperation and cooperation in aviation safety. This is not to belittle the importance of these agreements, and particularly the one on cybersecurity. However, the impression one gets is that there is still a sufficient amount of mistrust on both sides to ensure that even this initiative will live uptoits potential for some time to come. By way of comparison, the agreement between cyber adversaries Russia and the United States on cyber security cooperation signed just the previous week is much more specific on actions and timelines.

But it is not as if Mrs Clinton would be particularly disappointed by either the dampened expectations or outcome of her visit. From an American perspective, given the flux in the wider Asian region, accelerating the strategic partnership with India in the security and defence realms, especially if it is only on the back of unilateral concessions, will only fetch diminishing returns. One only needs replace India with the U.S. in the previous sentence to come up with the Indian view. On the American side, there is reasonable confidence that an increasingly powerful and belligerent China will eventually drive India into U.S. arms. In the meantime, there is plenty of other fish to fry, particularly when it comes to pushing the economic and people-to-people aspects, part of larger initiativesthat Mrs. Clinton has focused on since taking up stewardship of the State Department.  And therefore it is not surprising that out of the many factsheets brought out by the Department at the end of the visit, it is those on economic ties and education and people-to people ties that have the most substance. While the former leads with talks on a Bilateral Investment Treaty, there is a consolation prize in the establishment of the first ever Consular Dialogue to take place on July 25 “for a full discussion of visa and other consular matters”. From Tri-Valley to the harassment of H1B visa holders and diplomatic pat-downs, there will be much to discuss at this Dialogue. Considering that a similar Consular Dialogue has been part of the EU-IndiaStrategic Dialogue since 2000 and the India-Australia Dialogue more recently,one wonders why this did not come into being earlier even earlier.

On the education and people-to-people front, the noteworthy developments are the publication of the first request for proposals under the aegis of the Obama-Singh Knowledge Initiative with the fields of focus being Energy Studies, Sustainable Development, Climate Change, Environmental Studies, Education and Educational Reform, and Community Development and Innovation. How different this Initiative is from existing programs being carried out under the India U.S. Science and Technology Forum remains to be seen.  The other interesting program to watch out for would be the newly launched Passport to India which will facilitate increasing number of American students to come to India for periods ranging from three weeks to six months, to match the 100,000 odd Indian students in the United States. This, too, has an economic focus since the students will be here on internships with companies rather than for study programmes.

The silver lining in this particular cloud might be this; with both sides forced by exigencies to dial down the relationship a notch, this provides some breathing space to consolidate the initiatives that have been taken up in previous years. The U.S. State Department Inspector General’s office  has recommended that a separate office be established for India since “nations of comparable importance and with important bilateral relationships, such as China, Russia, Cuba, Canada, Japan, Korea, Mexico, Afghanistan, and Pakistan, have their own offices”. A similar initiative on the Indian side would go a long way in implementing the many worthy initiatives of the Strategic Dialogue and make it less of the annual junket that it is being perceived to be.