Immigration Enforcement

Even Symbolic H-1B Curbs Provoke Employer Outcry

The latest chapter in the Alice in Wonderland story of the H-1B visa program for cheap foreign labor surrounds provisions applied to employers receiving money from the Troubled Assets Recovery Program (“TARP”).

The new rules apply what are known as the “H-1B Dependent” provisions of the H-1B program to TARP fund recipients. While largely symbolic, these provisions have provoked a response in the media that has been hysterical (“Protectionism,” “closing the job market to highly skilled workers,” “anti-free market,” and “turning away talent“).

Reality check. Look at the list of the top users of H-1B visas. The top is dominated by foreign companies that bring in hundreds, even thousands, of H-1B computer workers each year but who do not hire Americans for these positions. The H-1B Dependent provisions do not hinder them in the least.

There are two new “restrictions” on TARP fund recipients:

1. The employer must certify that it did not or will not hire an H-1B worker if it has laid off a U.S. worker in a job that involves essentially the same responsibilities and is located in the same geographic area of employment within 90 days. 8 U.S.C. § 1182(n)(1)(E)(i), (n)(4)(A)-(B).

2. The employer must certify that it has recruited U.S. workers for the position and offered the job to any U.S. worker who is equally or better qualified. 8 U.S.C. § 1182(n)(1)(G).

(There is actually a third provision under 8 U.S.C. § 1182(n)(1)(F), but it is unlikely to ever be applicable to a TARP recipient).

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March 11, 2009 Posted by | Uncategorized | , | Leave a comment

H-1B Visas Really Are Inherently Harmful — Here’s Why

Last week a New Jersey employer was indicted on charges of H-1B fraud. However, I almost never report on such incidents, as I regard them as irrelevant to the big H-1B picture. The central problems of H-1B and employment-based (EB) green cards involve fully legal abuse via loopholes in the law, as opposed to violations of the law, and the large household-name firms are just as culpable as the “bodyshops.” Indeed, the industry lobbyists love it when the feds crack down on violators of H-1B law, as it gives them a chance to distract Congress and the press from the real issues (the loopholes), and to distract attention away from the big-name firms. See a prior blog for an example of this.

The Sanders/Grassley amendment to the economic stimulus bill survived conference committee. Recall that the amendment extends to recipients of TARP bailout money the H-1B hiring restrictions that normally apply only to H-1B dependent employers. As I explained in previous posts, especially this one, the restrictions are rather mild. And they too have loopholes. Nevertheless, they will have some practical impact, and much more importantly, have major symbolic impact, as they are tacit admission by Congress that the H-1B visa program is fundamentally a Bad Thing.

In the past, Congress’ message–and I mean the word “message” literally, in the form of the politicians’ public statements and letters to constituents–is that H-1B is basically a Good Thing, remedying tech labor shortages and enabling the import of “the best and the brightest” from around the world. Members of Congress continued to make such statements in spite of the facts that:

  • Congress’ own study, commissioned as part of the 1998 legislation that nearly doubled the yearly H-1B cap, found that it could not confirm the industry’s claim of a shortage studies. None of the other studies then and since, including that of the Dept. of Commerce (but excluding industry-sponsored studies), found a shortage either.
  • Two congressionally-commissioned reports, as well as various academic studies, found that use of H-1Bs as cheap labor is commonplace. The GAO report also made the point that loopholes make it fully legal to pay H-1Bs less than comparable Americans.
  • It has been shown quantitatively in several different ways that only a small percentage of the H-1Bs are in the “best and brightest” league.
  • The YouTube video, made by a prominent law firm to show its prominent clients (i.e. mainstream firms rather than bodyshops) how to circumvent the EB green card law requiring employers to recruit Americans before sponsoring a foreign worker for a green card, was widely circulated by members of Congress.

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February 23, 2009 Posted by | Uncategorized | , , | Leave a comment

H-1B Amendment Survives Conference Committee

An H-1B-related amendment offered by Senators Bernie Sanders (I-VT) and Charles Grassley (R-IA) to the economic stimulus package has survived conference committee and was a part of the final bill signed by President Obama.  Entitled the “Employ American Workers Act,” the Sanders-Grassley Amendment seeks to limit entities that receive funds from the Troubled Assets Relief Program (TARP) — established by last year’s $700 billion financial services sector bailout legislation — from displacing U.S. citizen workers. (CongressDaily, February 13, 2009).

The original text of the amendment as it was filed by Senators Sanders and Grassley would have barred any recipient of TARP funding from hiring any H-1B workers. (Congressional Record, S1590).  However, on the Senate floor, the Sanders Amendment was modified so that companies that receive TARP funding are not barred from hiring H-1B workers, but instead must follow the rules proscribed for so-called “H-1B Dependent Employers.”  (Congressional Record, S1669 & S1803).  These rules require employers who have significant numbers of H-1B employees (measured in proportion to the total workforce) to: (1) attest that they have made good-faith attempts to hire U.S. workers at prevailing wages (or industry-standard wages); (2) attest that their hiring of H-1B employees does not displace U.S. workers who have sought those same jobs; and (3) maintain paper records showing that they have complied with wage and other work condition standards.

The modified amendment was eventually adopted by voice vote. As modified, this language “isn’t as tough as what Senator Grassley originally proposed… [but instead the] modified amendment… makes TARP recipients jump through extra hoops before they can hire those foreign workers.”  (BusinessWeek, February 13, 2009).

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February 17, 2009 Posted by | Uncategorized | , , | 1 Comment