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Sunday, June 20, 1993 - Page updated at 12:00 AM

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Giving U.S. Jobs Away -- Companies Find Ways To Hire Foreigners While Many Americans Are Passed Over

Northwest businesses gained government approval to hire more than 2,000 foreign workers last year while telling federal authorities they could not find a single qualified U.S. citizen for the jobs.

Despite a recession economy, the jobs in Washington, Oregon, Idaho and Alaska went to foreigners, while thousands of Americans who applied were rejected. Many of the positions were professional, some paying as much as $100,000 a year.

Records show that fishing companies led the region in seeking foreigners, followed by computer and mining companies.

But here's a list of other jobs for which there supposedly were no qualified U.S. citizens:

Engineers, mechanics, pilots, scientists, a baker, biochemists, computer programmers, cannery workers, physicians, a newspaper reporter, editors, fishermen, a forester, fur sorters, geologists, a jeweler, cooks, a lawyer, architects, electricians, hunting guides, a hydrologist, clerks, an administrative assistant, a paralegal, radiological technologists, a pet-supply salesperson, a ski patroller, a statistician, veterinarians, childcare workers, a waitress - even a dude-ranch cowboy.

Applications to hire foreigners bear the typed notation: "Unable to locate qualified U.S. workers."

In reality, some companies believe U.S. workers are less educated, have the wrong skills and are unwilling to work as hard. And some foreign workers get hired as favors to friends or family.

The companies that hired foreigners ranged from such big names as Microsoft, Hewlett-Packard and Boeing to much smaller fishing and seafood-processing companies, which records show were among the most frequent manipulators of a process that is supposed to help protect jobs for U.S. citizens.

The U.S. Department of Labor, which is charged with enforcing the law, lacks the manpower and expertise to determine how many of the hires were legitimate.

What's certain is that the spirit of the law was routinely trampled.

The law requires employers to advertise for Americans, usually for three consecutive days, before they can hire an alien.

U.S. citizens can be rejected only if they lack the skills and education specified in the ad. And a foreigner can be hired only if the employer can convince federal and state agencies that no other option exists. The procedure, called labor certification, is designed to protect American workers. It doesn't.

An extensive Seattle Times review of Labor Department records showed the agency seldom rejects a foreign job-seeker.

In the Northwest region, only 93 of 2,312 foreign applicants were disallowed in the last fiscal year ending Sept. 30.

The sponsored foreign applicants have significant advantages, including the backing of a U.S. company and the best immigration-law advice that money can buy. The U.S. citizen has only a resume.

"Really good immigration lawyers know how to write a job description that only one person can fill, and yet looks reasonable," said Joan Fitzpatrick, a University of Washington law professor who specializes in immigration.

"The whole process is a charade," said Ira Mehlman of the Federation of American Immigration Reform, an independent 50,000-member Washington, D.C., lobbying group formed because of concerns about overpopulation and job shortages in the U.S.

Overworked bureaucrats who must handle applications 2 inches thick in a few hours rarely dig deeply into employers' claims.

"The underlying assumption is that the employer knows better what his requirements are and whether the person qualifies," said Ruth Kapetan, certification supervisor in the U.S. Labor Department's regional office in the Seattle.

Even in the rare cases in which Kapetan's office finds reason to reject a foreign applicant, employers and their lawyers usually prevail. The Labor Department regional office told employers 115 times last year that the certification for a foreigner would be rejected - but changed its mind in 97 of those cases. Usually it is a dispute over the requirements in the ad.

But consider what happened when former Anchorage Times Managing Editor Paul Jenkins was told he couldn't hire a Belgian for a reporting job for which two former Anchorage Times reporters with the requisite experience had applied.

Jenkins was so incensed that he wrote Kapetan a letter castigating the former writers and saying "any journalist with a decent reputation would not have worked here" in the past.

"I'm thinking this is the United States of America and I will do damn well what I want," Jenkins said in an interview. Kapetan eventually granted his application, though the Labor Department is not supposed to make decisions based on subjective opinion.

As it turned out, the day the Belgian got his approval in June 1992, the Anchorage Times folded so he never got the job.

Many factors weigh against U.S. citizens who apply for jobs for which a company wants a foreigner.

There's prejudice. Some employers just don't want to hire an American. They believe foreigners are better educated and willing to work harder for longer hours than U.S. citizens.

Sometimes companies want to hire foreigners as a favor to others at the company, who may have friends or family who want to immigrate. And often, before the certification process even begins the foreigner is already on the job and represents an investment in training for the company.

By the time they reach the stage where they must advertise the job to qualified U.S. citizens, companies are in no mood to drop the certification effort, which can cost as much as $12,000.

Joan Crandall, a recently retired Washington state certification official, said companies cleverly finessed the paperwork that crossed her desk.

"They wanted their aliens and they would do anything they could to get their aliens," she said.

"On occasion you will find an employer who is up front and really can't find anybody with the qualifications he requires for the job," Crandall said. But she estimated that "way less than half" of employers are forthright.

Employers who are intent on hiring foreigners recruit Americans defensively to make sure they don't get any. Stu Looney, a Seattle fishing-company executive, says the fishing industry hires more foreigners than it needs to.

"They create a hypothetical job with unrealistic qualifications and then they go fishing - no pun intended - for Americans," he said. "They don't catch any. They aren't using the right bait."

Amended most recently by a 1990 law, the 30-year-old labor certification process is drawing fire in today's recession-wracked job market:

-- Secretary of Labor Robert Reich ordered a sweeping review of the labor-certification process, said Mary Meagher, a special assistant.

-- Spurred by a complaint, the Labor Department inspector general is investigating whether some fishing companies have misused the process. An employer or alien who willfully falsifies or conceals information is subject to a maximum five years in prison and a $10,000 fine.

-- Three American fishermen sued Emerald Resources Management, Inc., a Seattle fishing company, last month, accusing it of reneging on a promise to train more U.S. citizens in exchange for the right to fish in American waters.

"The reality is they will not allow us to fish," said John Ratcliffe, one of the accusers. "They will not teach you. The Norwegians fear they would be out of a job."

Emerald officials say they hire many Americans.

-- The National Association of Computer Consultant Businesses is protesting a proposed federal rule that would allow foreigners to take high-tech jobs in states facing temporary shortages of talent, skirting the labor certification process. William Bell, a leading computer consultant, said even where there are shortages it is hard to imagine that a company could not find trained workers in a nation hard-hit by defense-industry layoffs.

Yet in some cases examined by The Times, dozens of Americans applied for a single job that eventually went to a foreigner.

One example occurred at Redmond-based Microsoft, the world's largest computer software company, where a young Malaysian who had held a 20-hour-a-week computer-based job with a food-services company for less than two years beat out 50 Americans, some of whom had more than a decade of experience.

The 26-year-old applicant, Selvamuthu Balakrishnan, a 1988 graduate of Gonzaga University in Spokane, had helped convert Marriott Food Services' Spokane office to computers.

Among the rejected Americans were a computer-systems administrator and analyst with more than 12 years' experience, an automation expert with nearly 20 years' experience, a senior programmer and analyst with 14 years' experience, and an operations manager and systems analyst with 10 years' experience.

Several applicants had recently returned to universities for extra training. But none had the precise mix required by the recruitment ad, which is reproduced on this page.

A veteran IBM programmer had insufficient experience with macro languages. A technical-support specialist lacked system-maintenance knowledge. An Army computer specialist had only 10 course hours instead of the required 20. And so forth.

The job was in Microsoft's product-support department, helping callers troubleshoot problems with computer software.

"The notion that no Americans could be found for a job like that is unbelievable," said Michael Lindberg of Edmonds, one of the rejected applicants. "A lot of programmers are out of work."

Lindberg, a programmer with 10 years experience, believes he was disqualified because of his lack of experience with computer networks, which he estimated he could have overcome in a couple of months.

Microsoft, which spent several thousand dollars over seven months gaining certification for Balakrishnan, says it cannot afford to train people on the job because of intense competition in the software industry.

Edward Lazowska, computer-science professor at the University of Washington, said when he looked over the Balakrishnan file, some American applicants appeared to have met the job specifications. But he said Microsoft, having found a dedicated worker willing to put in demanding "Microsoft hours," would pull out all stops to keep Balakrishnan.

"So they get into this peculiar legal dance in order to make the American worker lose," Lazowska said.

In this waltz, the score is usually a complex ad drafted by an immigration lawyer specifically to exclude U.S. citizens.

King County, for example, defended its hiring of Neil Campbell, a Canadian, to manage the Kingdome in part because none of the U.S. applicants - some of them very experienced - were certified by the International Association of Auditorium Managers.

Neither is Campbell's successor, Jesus Sanchez, who previously was the county's director of executive administration and had never managed a stadium until he took the Kingdome job. Sanchez, an American, says, however, that he is applying for certification from the auditorium managers.

When a local headhunting firm analyzed an ad for a fishing captain recently, at the request of The Times, 52 of the clients in its computerized database met the qualifications in the opening sentence. But as the ad piled requirement on requirement, there eventually were only three people who made the cut - and none of them had applied for the job. A foreigner was hired for the job in the ad.

After fashioning such an ad, companies then sometimes run them in publications that will be seen by few qualified applicants. Ads for fishing captains placed in Alaska newspapers, for instance, miss most skippers, who spend their off-season in the Lower 48.

State and federal officials approve the ads but often don't catch these subtleties.

The Labor Department employees who process the employers' applications are generalists, not specialists. Erik Klepp, the now-retired analyst who processed Balakrishnan's hefty file in one day, said: "None of us are experts on software engineering. It's difficult for a layman to challenge what the company puts down."

Records show a number of high-tech companies, including Sharp Microelectronics, Immunex and Hewlett-Packard, applied for labor certifications. Boeing also hires foreign workers, but refused to say how many. Microsoft was by far the most active, accounting for 70 of 689 applications in Washington state. The company estimates that 10 percent of its 7,500-employee workforce on the Eastside is foreign.

Microsoft argues that it must hire foreign workers to compete in a global economy. The company does 60 percent of its business overseas and publishes its key software in several languages.

Under Labor Department rules, companies must pay foreign workers the same as Americans, but in practice Kapetan says her agency lacks the personnel, or in some cases the authority, to enforce the rule.

Nippon Suisan USA, Inc., a Japanese-owned fish company based in Seattle, brings in scores of inspectors each year to check Alaskan fish products bound for Japan. General manager Masahide Maeda estimated the Japanese make $2,000 to $3,000 a month, less than the advertised rate for Americans, who rarely get the job. But no one in the Labor Department does follow-up investigations.

And once an immigrant gets permanent residency, he or she can change jobs or accept a lower pay rate the day the green card is issued.

In Nippon Suisan's case, though, pay is less an issue than the belief that Americans are unable to do the job properly. Maeda says he can't imagine many Americans being able to determine which batch of fish products are best for the Japanese market. Experts say a product not inspected by a Japanese national may fetch one-fifth its value when it arrives in Tokyo.

So in today's job market, Americans can be deemed incapable of everything from sniffing fish eggs to writing computer code. Technical programs in American graduate schools are packed with foreigners. The undergraduate science curriculum in places like India is considered better than its American counterpart.

Andrew Schulman, a computer programmer and author who lives in Boston, relates a joke making the rounds in Brazil: "If you want to make it in America you have to work twice as hard and be twice as smart as a native American; fortunately, this is not hard."

Such often baseless prejudice aside, there are legitimate cases in which U.S. companies can't find Americans for a particular job. Understandably, Microsoft must hire some foreigners to write programs in their native languages, and to customize computer code for overseas markets.

More obscurely, the Sealaska Inn in Hyder, Alaska, can't find enough U.S. workers among the town's maximum summer population of 91 people. So managers recruit housekeepers, cooks, waiters and even car-wash attendants in the nearby town of Stewart, B.C., population 2,000.

And state and federal officials do halt some abuses.

But critics of the system say enforcement would be better if fewer jurisdictions were involved. In some cases, four different agencies handle a foreigner's application: The state Department of Employment Security, the Labor Department, the U.S. State Department and the Immigration and Naturalization Service. With so many handoffs, it's inevitable that some cases won't get the scrutiny they merit. David Paul, a retired inspector general with the Labor Department, says foreigners set up phony companies and hire themselves. In one case, a Taiwanese man who grew bamboo shoots in Oregon hired a woman at slightly more than minimum wage to be the president of a company that then recruited him, and declared there were no Americans who could do his job, said Paul.

Because of this combination of problems, critics say, the American worker is poorly represented in the certification process. A U.S. citizen who applied at Microsoft complained that the company recruiter was clearly out to eliminate him. "She was looking to weed, and to her I was a weed," he wrote on a form submitted to the state.

His complaint had no effect.

Jim Dorcy, a retired immigration official in Washington D.C., says rejected Americans have little recourse other than a lawsuit. But, he added, "not many people out hunting for jobs have the money to go around suing people."

Copyright (c) 1993 Seattle Times Company, All Rights Reserved.

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