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The American Immigration Lawyers Association forced ShameH1B to shut down the audio sound clips. Go to the bottom of this page for an explanation |
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Tapes of the AILA - For Lawyers Only Taped Conversations from the American Immigrations Lawyers Association 1999 Conference In Ixtapa, Mexico |
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Tape #1 H-1B Professionals: Wait Till You See What's in the New Law
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The American Immigration Lawyers Association forced ShameH1B to shut down the audio sound clips. Go to the bottom of this page for an explanation |
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Introduction to the AILA 1999 Conference |
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Introduction given by Darryl Buffenstein - attorney in Atlanta Ga. He is a past president of the American Immigration Lawyers Association. |
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Worker Protections |
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Buffenstein gives his opinion on ACWIA, the American Competitiveness Workforce Improvement Act. He was quite angry that Senator Edward Kennedy (Democrat - Massachusetts) and Representative Lamar Smith (Republican - Texas) tried to put in protections for American workers. Fortunately, in his opinion, Republican Senator from Michigan and chairman of the Senate immigration subcommittee, Spencer Abraham, was able to remove those "troublesome" protections. |
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H-1B Fees |
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Originally a $10,000 fee per H-1B was to be charged to the employer. Buffenstein once again gives Sen. Abraham credit for getting that fee down to $500. That is not low enough for the AILA, however, they want to get the fee down to nothing. They lament that employers have to pay the fee and think that the H-1B should have to pay it. They claim that this fee won't survive the AILA court challenge. |
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Employer Posting |
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Employers are required to inform their employees that an H-1B is being hired. Of course the AILA thinks that this is too burdensome. They lambaste Lamar Smith for wanting all employees to be notified. The AILA prefers Spencer Abraham's watered down proposals that allow them to bury it somewhere on a company website. |
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Who Does the Employer Terminate? |
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This question provides quite a dilemma for the AILA. Fortunately Spencer Abraham simplified things for them - it's safer to "reduce" the hours of the American worker. The least desirable option is to terminate the H-1B. |
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Acceptable Terminations |
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According to the AILA, there are situations where it is acceptable to replace American workers with H-1Bs. Here is an example where the employer wants to terminate a couple of American software engineers and hire an H-1B. |
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Practice Defensive Law |
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The lawyers are advised to practice defensive tactics because the Department of Labor suspects all employers and lawyers of being thieves. Imagine that! |
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Benching |
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Benching is the practice of putting H-1Bs into a layoff status. Companies were only allowed to bench H-1Bs for 30 days. The AILA is very proud that they got a loophole in the law that allows for 60 day benching. |
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H-1B Benefits |
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A discussion of whether H-1Bs always have to be given the same benefits as the American workers in the same workplace. Rep. Lamar Smith wanted employers to provide "prevailing benefits". Thanks is given to Sen. Abraham for defeating the prevailing benefits because of the difficulty it would cause to employers. |
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Lawsuits Against H-1Bs For Liquidated Damages |
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In this sound clip the attorney is telling the conference of immigration lawyers that employers want to be able to collect from the H-1B all of the salary paid to the H-1B if the H-1B left employment prior to the end of the contract for which he/she was hired. The Department of Labor stepped in and told companies that you may not collect for wages paid. The DOL argued that since the H-1B has provided the company with work for which they were supposedly fairly paid, the company cannot go back and collect on these wages. Such an effort would unjustly enrich the employer. If under state law, however, liquidated damages are permitted, and this would restore the company to being in what is legally called a "whole" condition, then the company can first take the H-1B to state district court. The court will rule whether or not the employer is entitled to liquidated damages. In such an action the company would have to show to the court that there are specific damages that the company has or will incur because the H-1B, by leaving employment, breached a contract. This normal enforcement of any business contract is, according to this immigration lawyer, too burdensome for the employer to bear. This immigration lawyer is declaring that rather than the US Department of Labor enforcing the terms of the contract that the Department of Labor is destroying the contract by compelling the company to seek damage awards in state court just like it would be required to do if the same events were to take place with a U.S. worker. |
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90 Day Rule Means Many Lawsuits |
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Discussion on the definitions of a worksite. If one H-1B is working at a particular work site for 90 days then the employer must file LCAs on all future H-1Bs hired.
Here are two immigration attorneys discussing their concerns about a situation where H-1Bs are not working at the site that the employer told INS/DOL the employee would be working at. In some cases an H-1B might be sent from the original site to other locations for weeks or months at a time. If the H-1B is relocated even temporarily for a period of 90 days or more, then for all of the other or future H-1Bs that the company hires it must file an LCA (Labor Certifications Attestations). This is something the company may not have needed to do before. This creates another burden for their business clients and so Reiff states that the lawyers are going to be heavily burdened with filing lots of LCAs. Darryl Buffenstein chimed in that they are in fact getting ready to file large numbers of law suits against the federal government for this burden. Laura Reiff quickly agreed. |
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Bodyshops |
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The speaker warns the lawyers about using the term "Bodyshop" because they feel that term can be used against them by the enemy (anti H-1B activists). |
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Honorariums and Recruitment Attestations |
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Laura Reiff was just thrilled that the academic community got together and crafted legislation that will permit college professors to not be paid a normal salary but will be compensated only with honorariums. She says that is one of the only good things about the new H-1B bill.
Reiff hopes that there will no longer be attestation and recruitment documentation needed to imported workers. This is scary. She then whines that she doesn't know how they are going to document that they have recruited U.S. workers But couldn't find them. Interestingly she then suggests that maybe they can get away with doing no recruitment efforts because maybe the DOL won't actually do any spot checks on employers. She states that the DOL is not employers' friends and that the DOL doesn't like to use the word shortage. This has her quite upset since words in law mean something. She is strongly declares that there is a shortage of U.S. workers. If ESA gets to investigate the H-1B hiring process immigration employers will find doing business much tougher. |
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Attestation of Master's Degree |
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Laura Reiff is quite disturbed that the DOL won't allow a Master's degree equivalency. They are actually demanding that the H-1B has to have a real Master's degree. |
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I was forced to take the audio clips off this web page because of threats of legal action by the (American Immigrations Lawyers Association) AILA. I had a web page that had short excerpts from an AILA conference on H-1B. These tapes can be bought by the public on their website at http://www.csctapes.com/tapes/aila99mid.htm.
These tapes were legally purchased. In my view they are taking away my right to free speech. They are using a claim that I violated copyright laws to censor this page.
I don't think the AILA cares whether I have a right to put those sound clips online. All they care about is getting this information off the web. Their lavish income depends on keeping this information from the American public. They have the resources to spend whatever is necessary to crush me, and they know that as well as I.
ShameH1B
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-----Original Message-----
From: Carter, Hunter T. ] November 13, 2000 Arent, Fox, Kintner, Plotkin, & Kahn, PLLC Attention: President ShameH1B Dear Sir or Madam: This firm represents the American Immigration Lawyers Association ("AILA"). We have been asked by our client to contact you regarding an urgent legal matter requiring your immediate attention. AILA is a national association of lawyers admitted to practice law who are interested in immigration legal matters. Chief among the functions served by AILA is the presentation of numerous educational seminars for immigration law practitioners regarding various legal and practice developments of interest. The seminars are substantial undertakings, consisting of several days' length and individual seminars in numerous subjects. AILA is well known for its seminars, which are considered very popular and useful among immigration lawyers. AILA makes arrangements with various speakers to prepare and present materials at the seminars. Admission to the seminars is strictly limited to paid or otherwise authorized persons who are, in exchange for their payment and consent to the terms and conditions applicable to the seminar, entitled to obtain the seminar materials. Among the seminar materials are the written and oral presentations given by each seminar leader. The oral presentations in many cases are taped and the tapes are sold. The conditions of sale limit unauthorized use. The oral presentation tapes are subject to the copyright laws of the United States. Those laws strictly prohibit unauthorized use of protected materials and subject violators to actions at law for damages and penalties as well as legal proceedings to enjoin violators from continued violations. AILA has just become aware that ZaZona has unlawfully posted to its website (zazona.com) copies of substantial portions of three tapes from a 1999 AILA seminar. Copies of screen prints from zazona.com/shame1b/AILATapes.htm are attached for your ready reference. This use of copyrighted and protected material owned by AILA is unauthorized and in violation of the copyright laws. There are also false and hyperbolic statements with respect to the materials and speakers that are total distortions and also potentially actionable. Accordingly, we hereby demand that ZaZona cease and desist immediately from its unauthorized use of any of AILA's copyrighted materials. This means in particular that all portions of any AILA seminar audiotape be immediately removed from the zazona.com site, and also that you remove such materials from any other website or other place where ZaZona has supplied the materials or made them available or where ZaZona can cause the removal of AILA materials. Furthermore, AILA demands that ZaZona immediately turn over to this office all unauthorized AILA materials and all copies thereof and identify all persons who supplied such materials or through whom they were obtained directly or indirectly. You are advised to give this matter your serious and immediate attention. If AILA and this office do no immediately receive notification of your intention to fully comply with this letter by 3:00 P.M. Pacific Time, Wednesday, November 15, 2000, we will proceed to the courts to obtain relief. You are hereby placed on notice that your actions are unlawful and any further or continued violations after you receive this notice will be deemed intentional and willful violations of law. Govern yourself accordingly. Hunter T. Carter [Hunter Carter's biography can be found at http://www.arentfox.com/quickGuide/bios/carterh/carterh.html] |
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November 15, 2000 Arent, Fox, Kintner, Plotkin, & Kahn, PLLC 1675 Broadway, 25th Floor New York City, New York 10019 Re: Request for my removing portions of my web site. Dear Mr. Hunter T. Carter: I notified you on November 15 that I removed the web page (zazona.com/shame1b/AILATapes.htm. This was done shortly after I received your second e-mail communications regarding my inquiry about the copyright issues. The method you used to notify me by email and to give me a 4 hour deadline was outrageous and would never be never be done by respectable law firms. At the very least this was a procedural mistake on your part to make all these demands and not give me "due process" to respond. I cooperated with you even though you did not give me a reasonable time to respond to your allegations that I violated copyright law. I decided to temporarily pull the web page off until I had time to study this issue. Your requests that I return any "unauthorized" material is a senseless allegation that I possess something illegal. You could have asked me what I posses before accusing me without due process. Just for the record, I possess a legally purchased copy of the tapes. These tapes can be bought online by the public on the following website at http://www.csctapes.com/tapes/aila99mid.htm. In fact the web site says: "This unique service allows you to review the convention sessions or pass information along to friends and associates." I am doing exactly what the AILA told me to do. If my friends are not your friends, that is the way the world works. I don't pretend to have the same friends or associates that immigration lawyers at the AILA have. Here is what is on the tape, it doesn't say a thing about copyright. Neither does the web site.
As I stated to you in my first e-mail reply, I do not believe that I have infringed upon a copyright issue with regard to my posting a very small portion of a single cassette tape. Legally you guys don't have a leg to stand on and you know that. I did not use a substantial portion of the tapes as you alleged, I used some very short sound clips. I suspect that you never timed the sound clips so you have no idea what portion or percentage of the entire tape I used. It doesn't seem that you were very thorough in your investigation of this matter. There is plenty of precedent to support me using small portions of those tapes for my commentary. The press does this all of the time on TV news and editorials. A lawyer who I contacted pro bono that is a copyright specialist said that your case is significantly weakened by the fact that my web site is a personal commentary and is not being used for commercial purposes. Normally the AILA would have to show that the release of the sound bites "damages" their business to have a stronger case. Considering the low volume of traffic on my web site, you would have a difficult time proving that. Violation of copyright is fairly common on websites and most attempts to censor the sites has usually failed. NAPSTER failed only because they allowed surfers to obtain entire copies of copyrighted material. I used a SMALL amount of one single tape and gave credit to the entity but in the overall presentation of my web site it isn't even 1% of my site material. So, their minor appearance on my web site was of no significant impact to the content of the zazona.com. When one looks at copyright infringement --- the amount of usage from the copyrighted materials is used and one can also consider the total amount of within the source it ended up in (the latter alone doesn't protect but it goes to present an overall view that it was minor in nature and not the bulk nor significant portion to my project). The AILA's defensive reaction that my web page contains ". . . false or hyperbolic statements with respect to the materials and speakers that are total distortions. . ." is an overreaction. A well heeled organization such as the AILA shouldn't be wasting time harassing the owner of a personal web page. Of course many web pages contain material you don't agree with and that is the nature of the internet. I have a constitutional right to state my opinions whether you agree with them or not. Any reasonable person, excluding the AILA, would agree that my comments very accurately analyze the content of the sound clips. There is nothing hyperbolic about my webpage. Perhaps that is what bothers the AILA. I offered to give the AILA an opportunity to give a position statement(s) on any matter that they feel would like to be made known at my web site. I do believe in fair play even though I have no obligation to present your views on my web site. I'm sure you will never offer me a chance to give my views on aila.org. As stated above, I gave in to your request to remove the web page despite your unreasonable and unprofessional deadline. Since then I haven't received a response from you. In my previous letter I requested a written statement from you that this entire matter has now been amicably resolved and that no other legal action will be taken against any party(s) in this matter. Now that the information is removed you have remained suddenly silent. I have no confirmation as to whether or not you and/or your client has noted that the site has been modified as per their request and are now satisfied. In fact I have no way of knowing if you even represent the views of the AILA or if you are just one lone lawyer that is offended by my website. Finally, you never made it clear what kind of legal action you were threatening me with. I am an unemployed engineer so if you tried to sue me for money you would be trying to squeeze blood out of a rock. I will be happy to send you a financial statement to verify that you will get nothing from me financially in a law suit. You could sue my ISP to take my web page offline but most ISPs ignore these types of requests. There is nothing to then stop me from going to another of the 10,000 or so ISPs that could host my site. As many lawyers and politicians have learned, suppressing information on the internet is almost impossible. I could see by the letter that was sent to me that you contacted my ISP (web server) to complain about my web site. I have a right to know the names and addresses of individuals that you contacted. If we resolve this issue it would be your responsibility to send them an acknowledgement that I was fully cooperative in this matter and that it has been resolved. As I have cooperated with your request in as timely a manner as possible, I would like to request a written statement from you that this entire matter has now been amicably resolved and that no other legal action will be taken against any party(s)in this matter. I look forward to your reply. If I don't receive an e-mail reply from you or your law firm by 3:00 P.M. Pacific Time today I will have to make inquiries as to my legal rights in this matter. I will also consider putting that page back online until I get some kind of response. Govern yourself accordingly. Very truly yours, Webmaster of ZaZona.com |
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Give the AILA credit. They beat my deadline by 11 minutes. They made it very clear to me that this page can be shut down any time they want to shut it down. It doesn't matter who is right. The moral here is that you better not fuck with the AILA unless you are a LAWYER with lot's of money to spend. I edited out all the soundclips they complained about. I think they have far more important things to do than harassing this website, like charging big money to H-1Bs to come here and take our jobs away.
I welcome anybody that is interested in seeing this webpage with the sound clips to contact: Arent Fox Kintner Plotkin & Kahn, PLLC American Immigration Lawyers Association |
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- Not!!! - Thanks to the AILA |
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There are about 4.5 hours of these scandalous tapes. I will posting more from them so be sure to come back. |
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12/07/00 |
