VZCZCXRO6368
RR RUEHCD RUEHGD RUEHHO RUEHNG RUEHNL RUEHRD RUEHRS RUEHTM
DE RUEHMC #0203/01 1492053
ZNR UUUUU ZZH
R 292053Z MAY 09
FM AMCONSUL MONTERREY
TO RUEHC/SECSTATE WASHDC 3750
INFO RUEHME/AMEMBASSY MEXICO 4814
RUEHXC/ALL US CONSULATES IN MEXICO COLLECTIVE
RUEHGT/AMEMBASSY GUATEMALA 0056
RUEHDG/AMEMBASSY SANTO DOMINGO 0030
RUEHKG/AMEMBASSY KINGSTON 0032
RUEHNE/AMEMBASSY NEW DELHI 0028
RUCPDOC/DEPT OF COMMERCE WASHINGTON DC
RUEHC/DEPT OF LABOR WASHINGTON DC
RUEFHLC/DEPT OF HOMELAND SECURITY WASHINGTON DC
RUEHMC/AMCONSUL MONTERREY 9333

UNCLAS SECTION 01 OF 03 MONTERREY 000203 
 
SIPDIS 
 
DEPT FOR CA/VO AND CA/FPP 
DHS FOR USCIS 
DOL FOR ITA, FRAUD DETECTION AND PREVENTION DIVISION 
NEW DELHI PLEASE PASS CONSTITUENT POSTS 
 
E.O. 12958: N/A 
TAGS: CVIS KFRD ELAB MX
SUBJECT: H-2B FRAUD IN CONSTRUCTION AND RELATED TRADES 
 
REF: MONTERREY 201 
 
MONTERREY 00000203  001.2 OF 003 
 
 
¶1.  This cable is the second in a two-part series examining 
fraud trends in the H-2B temporary workers program.  The first 
cable looked at misrepresentation among staffing agencies; this 
piece focuses on fraud in construction and related trades. 
This cable has been coordinated with other H-2B issuing posts in 
Mexico.  See action request paragraph 10. 
 
¶2.  Summary.  Since February 1, 2009, post has recommended to 
USCIS the revocation of more than 60 H-2B petitions.  Based 
on the testimony of the beneficiaries, and in some cases the 
petitioners themselves, 28 of these petitions required a job 
title and wage rate differing from those authorized by the 
petition; further, all appeared to lack the permanent workforce 
required by 8 C.F.R. ' 214.2(H)(6)(ii)(3) to justify a peak-load 
need.  This trend seems to manifest itself most commonly 
in the construction sector, and particularly among such trades 
as carpentry, masonry, painting and roofing firms, where 
beneficiaries are overwhelmingly petitioned as "assistants," 
"helpers," or simply, "common labor."  Such a petition would 
be perfectly valid were the beneficiaries actually performing 
the duties described in the corresponding labor 
certification.  However, interviews at post have revealed that 
in many cases, such beneficiaries are working as the actual 
tradesmen while being paid as assistants.  Such activity 
exploits the beneficiaries and disadvantages US workers the 
firms 
that employ them.  End summary. 
 
TOO MANY APRENTICES, NOT ENOUGH JOURNEYMEN? 
 
¶3.  Beneficiaries often averred that they worked together in 
teams, without the assistance of any permanent US workforce. 
Even those who did claim that they were assistants often found 
it difficult - after having testified that their firm 
employs no permanent U.S. workforce - to explain who it is that 
they assist.  In each identified case, the petitioner 
listed in block 12 of the I-129 Petition for Nonimmigrant Worker 
a number of current employees at odds with the returning 
workers' testimony.  In several such cases, post's Fraud 
Prevention Unit requested quarterly wage statements from the 
petitioner: in each instance in which the petitioner complied 
with this request, post learned that the company had few or 
no permanent employees. 
 
GEOGRAPHIC CONCENTRATION 
 
¶4.  Post deals regularly with petitions coming from the 
Southeast, the Midwest, and the eastern seaboard, however the 
majority of the cases under discussion come from firms based in 
Texas.  They appear, in fact, to be concentrated among a 
few preparing agencies, in particular two law offices and one 
temporary staffing agency.  As the following case study 
demonstrates, both petitioners and beneficiaries tend to be 
candid about their activities, apparently unaware that they are 
in violation of the rules governing the H-2B program; post 
suspects that they may be the victims of misguided legal 
counsel. 
 
CASE STUDY: LUIS MEZA MORENA DBA LUMOR FABRICATED METAL 
 
¶5.  Luis Meza Morena DBA Lumor Fabricated Metal, 
EAC-09-064-51381, petitioned for 59 named Mexican citizen 
beneficiaries to 
fill a peak-load need for entry level laborers in Universal 
City, Bexar County, TX.   According to the DOL form ETA 750, 
these beneficiaries were to perform "entry level labor 
associated with metal roofing installation such as loading and 
unloading roofing material; placing metal roofing at place of 
installation; cutting and breaking metal roofing; and 
assisting installers of metal roofing." Interviews with the 
beneficiaries - returning workers of at least two seasons 
experience - confirmed that they were installing the roofing and 
siding, not "assisting installers."  They further 
testified that aside from the owner, Mr. Meza Morena, there were 
no US workers employed by the firm.  Accordingly, post put 
their applications on administrative hold to investigate further. 
 
¶6.  The petitioner, Mr. Morena, later contacted post to inquire 
 
MONTERREY 00000203  002.2 OF 003 
 
 
about the delay in securing his beneficiaries' visas.  He 
testified openly that the interviewees were his only employees 
and that they were the actual roofers.  He was unable to 
explain why he had failed to describe them as such while seeking 
certification or petition approval; nor was he able to 
explain why he had claimed 34 permanent employees on his 
petition.  He noted that his attorney was responsible for 
preparing the associated paperwork. 
 
SHOW ME THE MONEY 
 
¶7.  DOL's Foreign Labor Certification Data Online Wage Library 
indicates that the lowest prevailing wage for the most 
inexperienced roofer engaged in this activity in Bexar County 
would not be the petitioned rate of $8.61/HR, but rather 
$9.60/HR.  Since these beneficiaries were experienced, working 
independently, and supervising projects, it seems likely 
that they merited at least the level 2 wage proscribed by DOL: 
$11.09/HR. 
 
¶8.  Post notes that even at the DOL's level 1 prevailing wage of 
$9.60/HR paid to 59 workers over an 8 month period, the 
firm would have saved approximately $74,765.00 over a similar 
firm paying the prevailing wage to a US workforce.  This is a 
significant advantage for a small business.  In many such cases, 
the difference between the petitioned wage and the correct 
prevailing wage is even greater: for example, Ornamental Iron 
Works, EAC-09-034-50063, proposed to pay beneficiaries 
welding decorative iron fencing as production assistants at the 
rate of $6.65/HR: the correct prevailing wage for this 
activity is at least $9.85/HR.  Rivera Drywall petition 
EAC-09-066-51355 proposed to pay beneficiaries performing 
drywall 
installation as construction laborers earning $8.10/HR: the 
prevailing wage is at least $12.71/HR.  Efrain Aguirre Backhoe 
Services petition EAC-09-046-51083 proposed to pay beneficiaries 
operating backhoes and doing pipefitting as construction 
workers at the flat rate of $8.10/HR: prevailing wages are at 
least $11.80 and $14.04, respectively. 
 
TRUTH IN ADVERTISING 
 
¶9.  While these examples illustrate a significant undercutting 
of U.S. workers and the small businesses that employ them, 
post suspects that the adverse impact of this fraudulent 
practice manifests itself in other ways as well.  For example, 
in 
order to earn certification from the DOL, petitioners are 
required to demonstrate that they have first advertised the 
employment opportunity to qualified U.S. workers.  It seems 
highly unlikely that those petitioners that misrepresent to the 
DOL and USCIS the nature of the work to be performed are 
advertising it accurately to the general public.  Therefore 
qualified tradesmen, seeking employment independently, via a 
State Workforce Agency (SWA), or a  local union, may never get 
a chance to compete for these positions in the first place, 
because they do not appear to be a match in skill level and 
wage expectation.  Likewise, the DOL may never have an 
opportunity to consider the actual need for nonimmigrant workers 
performing skilled trades in the counties specified. 
 
ACTION REQUEST 
 
¶10.  9 FAM 41.53 N28.1 states that underpayment of wages is 
considered a labor violation, and that posts are to address 
this problem not by a recommendation for revocation of the 
underlying petition, but by a written report to the DOL cleared 
through the Kentucky Consular Center (KCC).  Post wishes to 
emphasize that these cases are not simply examples of employers 
paying less than the wage authorized by the DOL and USCIS, but 
rather fraudulent representations of the actual work to be 
performed and the nature and needs of the petitioning firm. 
This makes it impossible for either agency to determine the 
actual wage required, or whether or not the petitioned workforce 
is even justified by a peak-load need.  Accordingly, post 
requests from Washington agencies clarification of this 9 FAM 
41.53 requirement specifically as it applies to the H-2B 
program. 
 
 
MONTERREY 00000203  003.2 OF 003 
 
 
COMMENT 
 
¶11.  The fraudulent practice described in this cable has been a 
very significant trend among construction and contracting 
firms participating in the H-2B program during this season. 
Post acknowledges that many petitioners may legitimately 
employ helpers and assistants to supplement their workforce 
during a peak season.  However, post has found this particular 
form of fraud so common among such firms during this year's H-2B 
peak season that those petitions genuinely employing 
tradesmen's assistants as such, and the even fewer petitions 
that actually request - and offer the prevailing wage for - 
qualified tradesmen, appear to be the exception rather than the 
rule.   Post invites interested addressees to review 
further case summaries at MTR's SharePoint site, 
http://wha.p.state.sbu/sites/Monterrey/Consul ar/NIV/default.aspx. 
WILLIAMSON