From Professor Norm Matloff's H-1B/L-1/offshoring e-newsletter

10/20/2007

To: H-1B/L-1/offshoring e-newsletter

Since I am cc-ing Mr. Elias on this posting, let me state at the outset
what you readers of this e-newsletter already know to be my stance: The
H-1B program is a sham, very widely used to obtain cheap labor (though
via loopholes, in full compliance with the law). It is badly in need of
reform.

But unfortunately, Elias' description of it in this article enclosed
below is extremely inaccurate. I was originally not planning to review
his column, but I am hearing about it from enough readers that I do need
to comment. (It turns out that he also wrote about H-1B in a July 7
column, which was, alas, equally inaccurate.)

That DOL document that Elias thinks is a "smoking gun" is merely an
explanation of the law--not a change in the law or regulations. Other
than a minuscule exception category, the H-1B program has never required
employers to recruit Americans before hiring foreign workers. Sec.
Chao's report is merely explaining the structure of the law, as it has
existed since its inception in 1990.

Note that the employer-sponsored green card program does require
recruitment of American workers. Sadly, that requirement is riddled
with loopholes, as shown so vividly in the infamous "TubeGate" video,
but in any case it is irrelevant to Elias' topic, H-1B.

Elias says,

# What happened early this year provides good evidence of who is really
# coming in on H-1Bs. It is not principally Ph.D.'s and other highly
# educated persons. Rather, it is primarily factory workers, low-level
# draftsmen and the like.

# The evidence is clear: Out of 132,000 applications received on the first
# day they were accepted for the 2007 quota of 65,000 visas, just 12,989
# were from applicants with master's degrees or higher. That meant the
# vast bulk of applications came from workers with bachelor's degrees or
# less. These are not high-level researchers and software engineers, as
# they are often billed. They may be laboratory technicians or other

Concerning his point about master's degrees, his statement may or may not
be correct (he is certainly incorrect in not stating that there is a
separate exemption category for those with a master's degree or higher,
providing 20,000 additional visas beyond the 65,000 base), but it is
irrelevant anyway. The H-1B program is definitely abused at the
advanced degree level, just like it is for workers with bachelor's
degrees.

And contrary to Elias' statement, the H-1B visa is indeed often used to
hire software engineers. In fact, this title probably comprises the
plurality (though certainly not the majority) of H-1Bs. And no, it is
not used to hire factory workers; the job must require a bachelor's
degree or equivalent.

Elias also says that "companies that discriminate against American
citizens when hiring [H-1Bs] are legally protected by the Bush
administration." Again, the reference to the Bush administration here
is incorrect, as I explained above; the lack of a recruitment
requirement is the law, not administration policy. But my point here
concerns the word "discriminate." Since Elias' source for this column
is Donna Conroy, who uses the word in a special--and incorrect--manner,
I need to address it.

Ms. Conroy created Bright Future (www.brightfuturejobs.org), an
organization that to my knowledge consists only of herself. There's
nothing wrong with that--it's a common political phenomenon, and Conroy
must be commended for the publicity she has drawn to this badly abused
program. But she is gravely wrong in her characterization of it,
claiming that the law allows employers to bar Americans from applying
for these jobs. That is simply false. Legally, anyone can apply for
any job, and there is nothing in H-1B law or regulations that says
otherwise. Granted, in most cases Americans won't be hired, but to say
the law allows employers to bar Americans from even applying is just
incorrect and absurd.

Elias is correct that "Large U.S. companies, including Cisco Systems,
Sun Microsystems, Intel, Hewlett-Packard and other Silicon Valley
stalwarts, bring in thousands of skilled foreign workers each year not
because they can't find American workers to fill their jobs, but because
they can pay the immigrants less." As I mentioned, this is due to huge
gaping loopholes in the law.

Elias comments,

# Interestingly, no one has heard Colorado's Republican Rep. Tom Tancredo,
# now running for president on a jingoistic anti-immigrant platform,
# complain about the government-backed misuse of H-1Bs. Nor have any of
# the other groups now trying loudly to tighten up both the Mexican and
# Canadian borders.

# Rather, it is two liberal Democratic politicians, Illinois Sen. Dick
# Durbin and New Jersey Rep. Bill Pascrell, who are carrying similar bills
# to wipe out the Labor Department language that now subverts the plain
# intent of the H-1B visas.

Ha! If Elias thinks this is all due to the Big Bad Republicans (here I
must insert the disclaimer that I am a longtime liberal Democrat), he
needs to take another look. Support of H-1B is thoroughly, and
outrageously, bipartisan. The program was created by a Republican
president with a Democratic Congress, then expanded twice by a
Democratic president with a Republican Congress. Hilary Clinton, Barak
Obama, John Edwards and other major Democratic candidates for president
have all stated that H-1B needs to be expanded, and none is willing to
admit that it is a badly abused program which is pushed by major
corporate donors to the candidates' campaign and party funds. My own
senators, Boxer and Feinstein, have been bombarded with complaints about
H-1B, yet refuse to recognize the problem, and continue to support the
program.

And though Elias is also correct that bills by Durbin (with equal
participation from Republican Grassley, whom Elias somehow "overlooked")
and Pascrell would do a good job in reforming H-1B, NONE of those
Democratic senators above have signed on as a cosponsor.

Elias is completely wrong in his claim about Tancredo and the
immigration reform organizations. Tancredo has both spoken out against
H-1B and introduced legislation to fix it. FAIR, NumbersUSA etc. have
also been quite active on the H-1B issue, as Elias would have learned if
he had simply taken 30 seconds to glance at their Web pages.

It's depressing to see a journalist with such a wide audience write such
a sloppy, misleading column.

Norm

http://www.paloaltodailynews.com/articl ... 8-10-18-07

Tom Elias
An abuse of visa program, U.S. workers

By Tom Elias

It's an open question now whether the egregious abuse of H-1B
immigration visas by large corporations will ever be fixed.

That's because a small organization dedicated to helping American
workers get jobs for which American companies are now importing foreign
immigrants has uncovered a 2006 document demonstrating that letting
foreigners take jobs Americans could fill is in fact the policy of the
Bush administration.

States the U.S. Department of Labor's strategic plan for the fiscal
years 2006 to 2011, "H-1B workers may be hired even when a qualified
U.S. worker wants the job, and a U.S. worker can be displaced from the
job in favor of the foreign worker." The Federal Register adds that "the
statute does not require employers to demonstrate that there are no
available U.S. workers or to test the labor market for U.S. workers as
required under the permanent labor certification program."

That damning language was uncovered by Donna Conroy of the organization
Brightfuturejobs.org.

It seems to confirm what thousands of displaced American engineers and
technical workers have believed for years: Large U.S. companies,
including Cisco Systems, Sun Microsystems, Intel, Hewlett-Packard and
other Silicon Valley stalwarts, bring in thousands of skilled foreign
workers each year not because they can't find American workers to fill
their jobs, but because they can pay the immigrants less.

Pressure from high-tech firms

The actual intent of H-1B visas is to allow American companies to
recruit immigrant labor when they can't find sufficient qualified U.S.
citizens or legal residents to fill open positions. Each year, the
high-tech giants of the Silicon Valley lead a lobbying effort to get
Congress to expand the limit on H-1Bs from 65,000 to some far higher
figure.

These companies aim not merely to fill jobs for which they can't find
U.S. citizens and green card holders, but to feather their financial
nests, as the Labor Department documents indicate.

What happened early this year provides good evidence of who is really
coming in on H-1Bs. It is not principally Ph.D.'s and other highly
educated persons. Rather, it is primarily factory workers, low-level
draftsmen and the like.

The evidence is clear: Out of 132,000 applications received on the first
day they were accepted for the 2007 quota of 65,000 visas, just 12,989
were from applicants with master's degrees or higher. That meant the
vast bulk of applications came from workers with bachelor's degrees or
less. These are not high-level researchers and software engineers, as
they are often billed. They may be laboratory technicians or other
skilled laborers, but there is no demonstrated shortage of Americans
workers for those jobs.

No problems from the feds

Of course, the Labor Department has made it clear to the companies they
don't have to demonstrate any shortage of U.S. workers; they can hire
all the cheap labor they can somehow bring into this country.

It's not that the foreign workers they bring in lack merit. In fact,
most are dedicated employees and become taxpaying contributors to
American society. But the many Americans either bumped out of their jobs
by this Bush-sanctioned corporate welfare are also dedicated employees
and taxpayers.

Interestingly, no one has heard Colorado's Republican Rep. Tom Tancredo,
now running for president on a jingoistic anti-immigrant platform,
complain about the government-backed misuse of H-1Bs. Nor have any of
the other groups now trying loudly to tighten up both the Mexican and
Canadian borders.

Rather, it is two liberal Democratic politicians, Illinois Sen. Dick
Durbin and New Jersey Rep. Bill Pascrell, who are carrying similar bills
to wipe out the Labor Department language that now subverts the plain
intent of the H-1B visas.

For now, companies that discriminate against American citizens when
hiring are legally protected by the Bush administration, which kept its
disgraceful and possibly illegal rules quiet until Conroy discovered
them. Only if the Durbin-Pascrell legislation passes will citizens and
legal immigrants have an opportunity to compete for the top dollar,
white collar jobs at stake here.

And even if their bills should succeed in Congress, they would still
need the signature of President Bush to end illegal discrimination
against Americans and green card holders. Of course, if Bush wants to
fix the problem, he need not wait for Congress to act. All he'd have to
do is pick up his telephone and order his labor secretary to change the
rules back to what they are supposed to be.

He's had years to do this, but has shown no inclination because he knows
who his campaign donors are. So it's unlikely he would sign such a bill
even if it reached him. That means there will probably be no change in
the current anti-American discrimination by American companies until
there is a new president.

Tom Elias is a syndicated columnist who writes on state affairs.

E-mail him at tdelias@aol.com.