Yes, Who Indeed Is Qualified for an H-1B Visa?

I’ve stated many times that the H-1B work visa should be reserved for “the Best and the Brightest.” Thus I read with keen interest the New York Times article, “Is Anyone Good Enough for an H1-B Visa?,” by a foreign student from China.  The final paragraph is typical of the sense of entitlement I see so often among foreign students these days:

As I make plans to go back to China, I find myself wondering: If I am not qualified to stay in the United States, then who is?

Ms. Yu may well be among the Best and the Brightest, what with her degrees from Oxford and Stanford. But I must admit to some skepticism. Even if you speak no Chinese, you’ve probably heard the word guanxi, literally meaning relationship but of course actually meaning connections that one can exploit. I know that guanxi sometimes plays a big role in building up impressive re’sume’s. And as you will see, on one key aspect of her claim, I am more than just skeptical.

Yu mentions that she has a letter of recommendation from a Nobel laureate. Nice, but how did that arise? Many years ago I chaired my department’s graduate admissions committee. One day I received a phone call from a Nobel laureate in support of an applicant whose record was quite mediocre. The caller did have a connection to UC Davis, so he needed to be taken seriously, and frankly, I was rather naive at the time. We did admit the applicant, and she did mediocre work. It turned out later that the caller was an old friend of the applicant’s father, who was in a prominent position in China. Lesson learned for me.

The Nobel claim may allude to the fact that a co-founder of Yu’s company is the recipient of a different prize, a nice one, but far from the Nobel. If so, Yu’s claim is unconscionable.

Ms. Yu’s LinkedIn page has no endorsements from Nobelists. Quite the contrary, the only recommendation she has is from a former mentor who says simply, “Smart determined and hard working,” hardly the phrasing one would use for the Best and the Brightest.

Yu claims to be an expert in artificial intelligence and big data. Here I will go further than mere skepticism, and say that this would be almost impossible given her complete lack of technical background, which is entirely in law and business. I am unable to find any research publications in the field by her. None of her various online bios mentions AI or big data,  She may well have taken a class or two during her MBA, but even then, it would not justify her claim to be an expert in the field. This is key, because Yu is complaining that she was turned down for a visa that she feels she deserves because of her expertise in this field.

Yu also claims to be returning to China. and given the theme of her piece, the message is that the U.S. has just lost a top talent. But I will be very surprised if she doesn’t return to the U.S. permanently within the next few months. I’ve been fooled by such statements before as well.

I really do believe in facilitating the immigration of the Best and the Brightest. I have publicly supported liberalizing the two main related aspects of immigration law, the O-1 work visa and the National Interest Waiver for green cards. I’ve acted on that conviction on various occasions, including actively promoting the hiring of faculty colleagues whom I felt were outstanding talents. In two cases, one Chinese and the other Indian, originally my department wanted to hire someone else but I convinced my colleagues to hire these two outstanding applicants. I’ve helped top foreign students get jobs in Silicon Valley, and a couple of years ago, I wrote a very strong letter supporting a certain foreign national for the O-1. He got it, and is now working down the road from Ms. Yu.

If Yu had claimed that she is a brilliant expert in international law, and used her Oxford and Stanford credentials to support the claim, I might still have a bit of doubt, but I would have accepted it. But I must say I am troubled by her case.





Tax Reform and Foreign Students

I have made frequent reference to a 1989 internal document at the National Science Foundation, our federal government’s primary science agency. The author pointed out that liberalization of immigration policy pending at the time (the bill, which among other things established the H-1B work visa, was enacted the following year) would, in essence, drive American students away from STEM graduate study, as the foreign influx would suppress wage growth for doctorate holders. This forecast proved to be correct.

I’ve also pointed out that the prevalence of international students would grow even further if “Staple a Green Card to Their Diplomas” legislation were to be enacted, under which all foreign graduate students in STEM would in essence receive automatic green cards.

The tax reform plan passed this week by the House would have the effect of making U.S. universities even more dependent on foreign students, because it would count as taxable income the tuition waivers given to most PhD students. How so? Well, a little known fact is that most nations that send large numbers of foreign students to the U.S. are covered by a tax treaty. For instance, students from China and India, the two nations with the largest foreign student populations in the U.S., are basically exempt from paying income tax.

In other words, some American students who would otherwise have pursued a PhD would now choose not to do so, while there would be no impact on the international students. Result: Universities would depend even more on foreign students than they do now.

I am neutral on the tax bill (though I oppose Staple and think the number of work visas sand employment-based green cards should be reduced), as I simply don’t know enough to have a truly informed opinion. But there would be an adverse effect on something on which I am quite well-informed, as explained above.

Update, November 22: As I mentioned above, the tax code is extremely complex. My analysis above is oversimplified. Apparently foreign students are not completely exempt from paying tax, though post docs apparently are. But clearly, the impact would be as I described, though possibly much smaller in general.

Also, the universities could react to this aspect of tax reform in various ways, such as declaring research assistantships as scholarships, which are not taxable. MozView points out that then the universities would not be able to require the students to do research, but that is not a problem; the students are doing the research for their PhD dissertations, so they have to do the work anyway.

Also, most universities have a status known under various names, e.g. Advancement to Candidacy, bestowed when a PhD student has completed coursework and is now just doing his/her research. Under that status, students pay greatly reduced tuition. My guess is that universities will simply relax the rules on that status.

Another Highly Misleading Aspect of H.R. 170

In my post yesterday, I should have mentioned another crucial point about the $60,000 threshhold.

As I explained yesterday, this bar only applies to the issue of the extra “hoops” that H-1B dependent employers must jump through. Currently, in order to be exempt from these hoops, an employer must pay at least $60K. This number was set way back in 1998, and the authors of H.R. 170 make a big point of noting that the figure was not indexed for inflation. H.R. 170 would modernize the figure to at least $90,000, and have it updated for inflation in future years.

This is highly misleading. It is NOT the case that under current law, an employer who wants to avoid the hoops can typically get away with paying an H-1B worker only $60K. The reason is that the employer is still subject to the prevailing wage requirement. Prevailing wage is a lowball figure to begin with, actually the worst aspect of the statute and regs, but still, it’s much higher than $60K. In 2014, for example, the national mean salary for H-1Bs in the computer fields was $83,000.

In discussions of H.R. 170 and earlier proposals, it has become common for the authors to refer to that $60K figure as a “loophole.” But again, that is very misleading, for the above reason.

The REAL loophole is the four-tiered prevailing wage system. As I have emphasized so strongly over the years, the core problem with H-1B is that it allows employers to hire younger, thus cheaper, H-1Bs instead of older, thus more expensive, U.S. citizens and permanent residents. The four-tired system, with its tiers based on experience level, a proxy for age, is the enabler of that core problem.

H.R. 170 does replace the four-tiered system by a single tier in the case of H-1B dependent employers if they place workers at the sites of clients. Fine, but as I explained yesterday, in the end it will still be business as usual, with employers having a number of workarounds at their disposal.

Please note again: The value of an H-1B reform bill can ONLY be defined by its ultimate impact on American workers. Feel Good bills that claim to “at least solve part of the problem” but actually have no impact are worthless.

If the authors of the bill want to live up to their claims to protect American workers, they need to replace the four-tiered system entirely. The bill could be extremely short (“Fits on a postcard”), simply saying that all H-1B workers must be paid at least the 50th percentile (DPE has proposed the 75th percentile, much better) of wages in the given occupation and region.

The other approach, which has been mentioned by many, would be to dole out the visas in order of offered salary, highest first. Simple, and something that could be legitimately done by executive order. Actually, I would prefer that it be ranking by scaled salary, i.e. ratio of salary to median for the occupation and region, so that the computer fields don’t have unfair access to the visas.

Orwellian Bill Passes House Committee

I have been hectoring activists, labor groups, immigration reform groups, and last but not least, all you readers about the fallacy and danger of IGIB — Intels Good, Infosyses Bad — a doctrine that holds that abuses of the H-1B work visa are committed mainly by Infosys and the other outsourcing firms. The firms that hire their H-1Bs from among the international students at U.S. universities — the Intels, for short, but also including tons of smaller firms in addition to Intel, Google and Facebook — are viewed as using H-1B responsibly, indeed for the national benefit. But on the contrary, I’ve shown many times how the Intels are in fact just as culpable as the Infosyses.

Over the years, I’ve warned in particular that promoting the IGIB myth would result in legislation making conditions even WORSE for U.S. citizen/permanent resident STEM professionals. Well, now we have our first concrete example, H.R. 170, which passed committee earlier this week.

The bill involves “reform” of the H-1B dependent employer status, which has been part of H-1B law since 1998. Under this provision, any employer for whom at least 15% of the workforce consists of H-1Bs has extra hoops to jump through in order to be allowed to hire foreign workers.

Well, H.R. 170 would increase that figure to 20%. The House Immigration Committee, in its supreme benevolence, wants FEWER employers to have to jump through the hoops. And Committee Chair Bob Goodlatte is presenting this as a move to protect American workers. In other words, the committee aims to “protect” American workers by SCALING BACK a provision aimed at protecting them — an amazingly Orwellian claim, even by DC standards.

And worse, no one in our gullible press has noticed that contradiction. (Neither, sadly, did NumbersUSA, in an otherwise excellent analysis.)

But what is the motivation for that relaxing of standards anyway?  It is the same motivation for that 15% figure being chosen back in 1998, rather than a more stringent bar of 10%, as had been considered during the early stages of developing the legislation. The motivation is … IGIB! Then and now, the goal has been to surgically set the threshhold — 10%, 15%, 20% — at a level designed to clobber the Indian outsourcing firms while letting the U.S. firms, from Intel on down to the Bank of the West, to go scot free.

A couple of years ago, Facebook, which had exceeded the 15% threshhold, asked Congress for an exemption. They were denied then but not now. H.R. 170 is the Catering to Facebook Act of 2017.

Supporters of the bill would say, “Yes, but the bill updates another threshhold, $60,000 to at least $90,000.” This would refer to the existing statute, under which H-1B-dependent employers are exempt from having to jump through the extra “hoops” if they are paying a salary of at least $60,000. This is a master political move, because it sounds so plausible (and because they knew the press would misquote it as requiring $90K as a hard floor wage for these H-1Bs).

The crux of the fallacy here is that, in actuality, those hoops, while nuisances, are not real barriers. Take the recruitment requirement, for instance. “TubeGate”,  in which a partner of a prominent immigration law firm said, “Remember, our goal in satisfying the recruitment requirement is to NOT find an American for the job.” And his clients were Intels, not Infosyses. (He was discussing green cards, which do have a universal recruitment requirement.)

If an employer — Intel, Facebook, on down to the Bay Area chain, Bank of the West — tells DOL, “We absolutely need someone with data science experience with the R programming language, version 3.4.2, not the R 3.3 that this American applicant has,” the bureaucrats at DOL are in no position to dispute it. And TCS, one of the major Infosyses, requires experience in its own proprietary software, which of course Americans lack; it’s only for project management, not app building, but again, who is DOL to dispute it?

So, IGIB is the core idea behind this new bill. And, as mentioned, IGIB is a myth. As TubeGate and numerous other examples and data analyses have shown, the Intels are just as culpable as the Infosyses in abusing H-1B and related programs. Moreover, even if Congress were to take the drastic step of banning all Infosyses, the current clients of Infosyses would continue business as usual, e.g. by contracting with U.S. outsourcing firms such as IBM, and — note this — by hiring foreign students just like the Intels do. As I’ve said before, Disney for instance could hire foreign students from the various colleges and universities in Florida. They may not be of very highly caliber, say an Information Systems major rather than a Computer Science major, but they would still be cheap, and good enough for those employers.

Someone who supports the bill and is sympathetic to the notion that H-1B is widely abused asked me the other day, with exasperation, “Norm, this bill has so many good reforms. What do you really want?” I answered,

What I want is very simple: I want more of these jobs going to Americans instead of foreign workers. This bill will NOT help in that regard, and in fact will make things WORSE.

As long as Congress — and sadly even many critics of H-1B — define the H-1B problem in terms of IGIB, we will never get any meaningful legislation.


The Schools Can Decide the Definition of STEM for OPT?

Optional Practical Training (OPT) is a controversial aspect of the F-1 foreign student visa. It allows a foreign student to work in the U.S. for one to three years after graduation, with the longer period being for Science, Technology, Engineering and Math (STEM) fields.

It should be no surprise that OPT is controversial. As Ron Hira has pointed out, it amounts to claiming that the international student, typically with a master’s degree, still needs a three-year internship. It is also controversial because both its origin and later expansions have come through Executive Branch action, not Congress. A lawsuit against the expansion, based on this point, is still pending (contrary to recent claims in the press that the courts have already upheld the action, which don’t disclose the fact that the one court decision along these lines was later vacated).

Oddly, USCIS has publicly admitted that their reason for extending OPT is that they wish to use the program as an end-run around the “shortage” of H-1B visas. So much for “practical training,” eh?

What is interesting is that, on top of the dubious legal status and demonstrably false rationale for the program, it turns out that apparently the colleges and universities can make their own determination as to what qualifies as STEM.

In other words, OPT has been a sham, right from the start and has been becoming more and more of a sham in recent years. But where is the outrage? With occasional exceptions, critics of H-1B just don’t mention OPT.

Sadly — may I say tragically? — this lack of outrage is due to those same critics buying into the Intels Good, Infosyses Bad myth. IGIB holds that use of the H-1B program by outsourcing firms such as Infosys is abusive, while it is quite fine and salutatory for the Intels — both the big household name tech firms, and the myriad small tech firms — to hire foreign students and sponsor them for H-1B.

Because of the IGIB myth, H.R. 170 by Rep. Darrell Issa is moving right along, having been marked up by the House Immigration Committee earlier this week. I will post a full analysis here when I have time, but suffice it to say that this is a Feel Good bill that actually make things worse for American tech workers, not better. The issue is NOT that it is only a partial solution to the H-1B problem; I contend that it will make things worse. To those of you who are activist on the H-1B issue: If you see an organization interested in H-1B claim that H.R. 170 is worthwhile, call them out on it.

As long as Congress believes in IGIB — and importantly, as long as critics of H-1B believe in it — forward progress, even limited, in reforming H-1B and related visas will be absolutely impossible.


An Unwarranted Attack

I was startled this morning to read in my Google Alerts newsfeed of a vicious and unwarranted attack in on Prof. Ron Hira of Howard University. Unfortunately, I haven’t had much time for writing blog posts lately, but really, that article demands comment.

Ron is one of the top researchers on the H-1B work visa and offshoring of IT work. As noted in the article, he is frequently cited by the press, and has been called to testify before Congress on a number of occasions. But the author of the article seems to think that Ron’s work is tainted by presumed funding by a couple of organizations the author considers suspect — meaning, anti-immigration.

Regular readers of this blog know that I have strongly negative opinions of “hired guns,” academics who accept funding from entities that have a vested interest in an issue. But the entities cited by, the engineering society IEEE-USA and Democratic Party/labor aligned Economic Policy Institute, don’t fit the author’s anti-immigration description.

I’ve made no secret of the fact that I consider IEEE-USA useless, indeed counterproductive, in addressing the problems of H-1B. They falsely portray the issue as one of “Intels Good, Infosyses Bad” and support proposals to grant automatic green cards to international students earning STEM degrees at U.S. schools. Such proposals would greatly harm U.S. citizens and permanent residents in STEM, but the point is that IEEE-USA’s policies are strongly PRO-immigration. To attack Ron as “anti-immigration” for for having been associated with the organization (which quickly distanced itself from Ron in response to is absurd.

The article describes EPI as being backed by George Soros. If true, this is an odd fact to cite in claiming EPI and Ron are “anti-immigration.” To my knowledge, Soros is strongly PRO-immigration, and my impression of EPI is that they are basically on the pro- side as well, if not as unquestioning as Soros. A few years ago, EPI kindly invited me to write a research paper for them (unpaid, I must add, as with all of my research papers). This turned out to be the most stringently-reviewed paper I’ve ever published, lots of skepticism among the EPI reviewers, who also took the “Intels Good, Infosyses Bad” stance.

Finally, that anonymous writer calls Ron a hypocrite for taking “anti-immigration” stances in spite of his parents and in-laws being immigrants. This is a common argument by the immigration lobby, but it makes no sense. We all have immigrant background, whether it be one generation back or ten (or hundreds in the case of the Native Americans). Where does one draw the line? Do I, as the son of an immigrant, not have “standing” to criticize the H-1B program while my daughter, two generations removed from my dad, would be free to question immigration policy? Oh wait, her mom is an immigrant, so scratch that, though if she has children, they can voice an opinion, right?

Seems impossible to have a rational, calm discussion on immigration these days.

Unnoticed Role Reversals

I’ve always been amazed at how many “unclothed emperors” pop up in political debates. Since no one else seems to be noticing, I’ll share a couple of current ones here.

First, consider a hot news item these days, involving Russian “elements” placing ads on Facebook to organize people interested in, inter alia, African-American civil rights. A lot of people in Congress, especially Democrats, are up in arms about this. But if you know the history of the U.S. civil rights movement, this should ring a bell. Martin Luther King and his crowd were constantly accused by the right wing of being supported by communists, meaning the Soviet Union. Now the left wing is making the same accusation, oddly enough.

Second, what about the tax reform proposal? Used to be that the Democrats worried about whether working-class people could buy a house. But if I understand things correctly, they are now worried that only working-class people — meaning, in this context, those taking out a mortgage of under $500,000 — would be given help. Ditto regarding deductability of property taxes. Basically, the Republicans want to help the working class and the Dems want to help upper-income white collar professionals.

And don’t get me started about the GOP’s obsession with repealing a health insurance system that was first proposed by the conservative Heritage Foundation and first actualized by the Republican governor of Massachusetts, Mitt Romney.