H-1Bs Create Jobs — for H-1Bs

Some years ago, NumbersUSA’s Roy Beck quipped, regarding H-1Bs, “Employers would rather go to India than Indiana to hire IT workers.” An article regarding a firm in the Indianapolis area, “Carmel IT Consultant Plans 246 Hires in Next 5 Years,” in today’s Indianapolis Star shows Roy’s words to be prophetic.

The text of the article notes that, although the firm is hiring,

The company is a heavy user of the federal H-1B visa program that allows U.S. employers to hire foreign tech workers. From 2011 to 2013, GyanSys filed for 86 H-1B visas, according to the website immihelp.com that tracks H-1B filings.

And H-1B visa cogniscenti will notice that that $60K figure is the legal wage floor for an employer to avoid being declared H-1B dependent. In other words, a large percentage of its workers are H-1Bs. And if you do the math on the various job counts cited, and factor in L-1 and OPT workers, it seems likely that most or all of those 246 hires will be foreign workers, not Hoosiers.

And another passage in the article is sure to spark outrage among some readers of this blog:

The Indiana Economic Development Corp. offered GyanSys up to $4.45 million in performance-based state tax credits and up to $250,000 in training grants based on the company’s job creation plans. So long as the workers pay Indiana income taxes, the company will qualify for the grants.

I’ve heard over the years that this is common, involving for example the Nielsen TV ratings company.

Note carefully, though, that H-1B dependency is misleading. Lots of non-dependent firms hire mainly foreign workers to fill engineering and programming positions, but technically don’t count as H-1B dependent because their nontech workers are in jobs for which H-1Bs normally don’t qualify — clerical staff, marketers, accountants and so on — and thus are mostly Americans. So those firms seem to be OK, when in fact they are abusing the program.

Some, such as Senator Hatch, have claimed that the heart of H-1B reform should be updating that $60K floor, perhaps indexing it to inflation. This is completely misleading; remember, even H-1B dependent employers still must adhere to the H-1B prevailing wage law, and the latter is the core problem.

More on Trump and Foreign Students

On Sunday, I posted a piece here praising presidential candidate Donald Trump’s stance on the H-1B work visa. Since I am a liberal Democrat, my praise for Trump caused a bit of a stir, resulting in the conservative Web site Breitbart running an article, “Floodgates Open: Top Democrat Professor Says ‘I’ve Never Seen any Politician’ with Better Immigration Plan than Trump.” Trump himself tweeted the article. (To read it without “voting,” hit Refresh in your browser.)

My, my — if only the Democratic Party would listen to this “top Democrat.” On the contrary, as I noted recently, the Democrats who used to be critical of H-1B, e.g. Harkin, Stabenow, Pascrell and so on, have all clammed up on H-1B in the last couple of years, while some Republicans, such as Trump, Walker and Santorum are now taking up the slack as supporters of American workers.

However, just two days later I had to post another piece, saying “Forget what I said” after Trump “clarified” his stance:

When foreigners attend our great colleges & want to stay in the U.S., they should not be thrown out of our country…I want talented people to come into this country—to work hard and to become citizens. Silicon Valley needs engineers, etc.

This is the standard industry party line, which portrays the foreign students as the “good” H-1Bs, as opposed to those imported directly from India by firms like Infosys to replace American workers at companies like Disney and SCE. This is simply not true, and it was quite disappointing to see Trump “go to the dark side.”

I have been assured privately by two well-connected people that Trump actually did not reverse himself, but really, it’s obvious that he did. Not only did he say we need to retain the foreign students, but also he supported the notion that we have a shortage of engineers. And the quotes in an article running in today’s edition of Inside Higher Ed show that supporters of giving work visas to the foreign students also see that Trump agrees with them. As the article puts it, Trump “is in line with mainstream sentiment in higher education.” One seldom sees Trump mentioned in the same sentence as the word mainstream, but there you have it. (The article is perhaps a tad unbalanced, but definitely recommended reading.)

Some have responded to my Sunday post by saying that Trump’s stance on H-1B is still better than that of any other politician, but I strongly disagree. He seems to be supporting the bills that would make special work visas and/or green cards for young international students, amounting to an H-1B end run. If such policies are enacted, it will be business as usual for Disney and SCE — they’ll hire the foreign students instead of H-1Bs, with the result STILL being that Americans don’t get those jobs.

I do have to say that my remarks praising Trump for his support of low-skilled American workers, especially blacks and Latinos, still stand. Again, one just doesn’t see the Democrats showing such insight/courage. San Francisco radio station KGO had me as a guest on Pat Thurston’s show the other night, and I was amazed to see Thurston, the liberal’s liberal, praising Trump. But on the issue of immigration of engineers, Trump’s a chump.

Welcome, Honored Guests

Immigrants — or even would-be immigrants — are often portrayed these days as glorious, deserving of special treatment. This came up recently, for instance, in an NPR report on the City of Baltimore’s efforts to clamp down on the plethora of liquor stores in impoverished districts. The lawyer representing the store owners argued against the proposal, on the grounds that the owners are immigrants, which in the lawyer’s view somehow makes it OK.

As one who has lived in immigrant households and communities all his life, I am rather pleased by all this positive attention. But it’s gone way too far, resulting in absurd statements like the one made by the attorney above.

Nowhere is this glorification of immigrants more intense than for foreign students studying STEM at U.S. universities, who the government fervently hopes will become immigants. We saw that today, with Donald Trump’s sudden switch on the skilled-immigration issue, clarifying that he thinks we should make all-out efforts to attract and retain those students.

So Trump’s claimed sympathy for the middle class has proved hollow. But Trump is hardly alone in his view; on the contrary, it’s thoroughly mainstream in DC. (Which dramatizes the point that under a President Trump, it would be “business as usual” in terms of foreign tech workers.) This is why, for instance, both the (George W.) Bush and Obama administrations have been so anxious to expand the OPT program, giving foreign students temporary work rights after graduation. More on this below, but the point is that it is considered a “must” in DC that we grab these students.

I’ve written in a previous blog:

Moreover, what is more disturbing is that many in DC see the green card programs as a way to “steal” STEM workers from China. I had heard rumors of this for years, but still was taken aback when they were confirmed at a talk at Georgetown University I gave a few years ago on the quality of the foreign STEM students in the U.S. An attendee came up to me afterward, and turned out to be a young green card case adjudicator at USCIS. He said something close to this: “I don’t see what the fuss is about. My understanding is that our mission is to grab STEM students away from China. The quality doesn’t matter.”

This attitude is silly, as only a small portion of STEM students in China are coming here, but it certainly illustrates the thinking prevalent in our nation’s capital. Pres. Obama has stated repeatedly that a priority is to retain the foreign students.

Accordingly, the administration is not going to take its recent legal setback on OPT lying down, nor will its allies in the tech industry, immigration attorney community and so on. The court found that the DHS had not gone far enough to vet with the public its 2008 extension of OPT from 12 to 29 months. The court gave DHS until February 2016 to properly collect public comment. I predicted that the interest groups supporting the extension would flood the DHS on its public comment site, and sure enough, a petition to retain the extension has gathered 50,000 signatures in just a few days. Those opposed to the extension could be rather numerous too, but they are unorganized and many fear blacklisting by employers.

In other words, DHS will have no problem justifying the extension, citing “popular demand.” Of course, most of the signatures will likely be the foreign students themselves, who have always been easily mobilized for issues like this, but this won’t matter to DHS.

So, the images conjured up of tens of thousands of OPT students suddenly dragged out of their U.S. jobs and shipped home make for good press, but this just ain’t going to happen. The government will do anything to keep them here, and it will have plenty of powerful allies in that.

John Miano, the programmer turned savvy lawyer who is leading the court battle to overturn the OPT extension, notes that even with tens of thousands of people imploring DHS to retain the extension, it may not be so easy for DHS to comply with the court’s decision. I’m rooting for Miano, but you can bet that DHS will treat this as a “must win” situation, and will go to herculean efforts to thwart Miano. Once again, it will at least make for good theater.

Personally, I’ve always believed that legislation — in this case quasi-legislation (a court decision) overturning other quasi-legislation (DHS actions that usurped Congress’ right to make the laws) — should grandfather existing beneficiaries. But OPT should be returned to its original 12-month duration, and absolutely should not be extended to 6 years, as currently proposed by the Obama people.

¡Ay, Caramba! It Took Only a Few Days for Trump to Reverse His Stance

Well, forget what I said on Trump and H-1B. He now says,

When foreigners attend our great colleges & want to stay in the U.S., they should not be thrown out of our country…I want talented people to come into this country—to work hard and to become citizens. Silicon Valley needs engineers, etc.

In other words, the “Intels good, Infosyses bad” attitude, which as I have often explained, is totally invalid and harmful. The Intels are just as culpable in abusing foreign worker programs as the Infosyses, and those who separate the two want to INCREASE the H-1B cap for the Intels. No more “arriba,” señor Trump. I’ll revise my previous post with a warning.

Someone got to Trump.

Sanders and Trump on Immigration

Presidential candidate Donald Trump stunned the H-1B visa watcher community today with his platform on immigration. which includes surprisingly detailed, helpful provisions regarding H-1B. Very interesting, coming on the heels of his outrageous comments on Mexican immigrants, which among other things inspired the creation of a Trump piñata.

Meanwhile, a Bernie Sanders piñata may well be next. Seems that Sanders isn’t ideologically pure enough on the immigration issue to satisfy the Latino activists, who accuse him of using — horror of horrors! — Republican tactics in his nuanced stance on immigration. You’re “either with us or agin’ us” with that crowd.

UPDATE, AUGUST 18: Trump tweeted comments today that totally negate the praise I had given him below regarding H-1B. See my new posting.

In this post, I’ll comment on both Trump’s and Sanders’ positions, relating both to an interesting recent essay which defended the latter but arguably applies to both candidates.  Let’s start with Trump.

Trump’s proposals for handling illegal immigration are vintage Trump, some sensible, some off-the-wall, but on H-1B, the man gets an A+. I’ve never seen any politician, even Tom Tancredo, put up such an effective platform as Trump has. He decries that most of the visas go to the bottom two (out of four) wage levels in the legal requirements for H-1B, recognizing that the unrealistic prevailing wage law is at the heart of the problem. He insists that employers be required to give hiring priority to Americans. Most important to me is that, at least as stated, these provisions would go a long way to stem the visa abuse by not only the “Infosyses” (rent–a-programmer firms) but also the Intels, who are just as culpable. One nice added touch: He refers to pro-H-1B Senator Rubio as “Mark Zuckerberg’s personal senator.” :-)

Trump says in his platform what no other politician, including Sanders, is willing to say: Immigration is great in sensible quantities, but in its present form,  both legal and illegal, it’s hammering the lower and middle classes. Take for example the high black and Latino unemployment rates. The Democrats say the solution is education and the Republicans say the path is lower taxes and regulation, and though both may have points, Trump states the obvious — bringing in large numbers of low-skilled immigrants is going to harm the most vulnerable people in our society, our own low-skilled (including earlier immigrants). I detailed this years ago in an article in The Public Interest. Among other things, I quoted Antonia Hernandez, a very sharp and caring woman who was then head of the Latino activist organization MALDEF:

…migration, legal and undocumented, does have an impact on our economy…(in) competition within the Latino community…There is an issue of wage depression, as in the garment industry, which is predominantly immigrant, of keeping wages down because of the flow of traffic of people.

It’s even worse now. And yet the Latino activists don’t seem to care, nor do their allies in the Democratic Party care. I haven’t heard a peep out of Rep. Luis Gutierrez about the blight that the immigration-swelled labor market brings on the Latino community. Indeed, the Latino activists want to shut down talk of harm to American low-skilled workers. This “burn the village to save it” mentality is appalling. Trump may be an impetuous buffoon, but if those remarks in his platform are sincere, I say, “¡Arriba El Donald!”

I’m a longtime admirer of Bernie Sanders, and I’m also a big fan of EPI researcher Daniel Costa. So, Costa’s article defending Sanders on the immigration issue, titled “On Immigration, Bernie Sanders is Correct,” was a must-read for me.

As usual, Costa’s writing here is thoughtful and engaging. And yet, Sanders is walking a tight line on this issue, forcing Costa to do the same. As I noted above, the current high level of immigration is harming American workers, far beyond the distinctions between guestworker programs, legal immigration and unauthorized immigration. I’m sorry, but that hard, cold fact cannot be ignored or wordsmithed around.

Regarding H-1B, a guestworker program, some recent statements by Sanders, and Costa’s analysis of Sanders’ stance on immigration, suggest to me that Sanders has bought into the notion that the Intels use H-1B responsibly while the Infosyses are the main abusers. As I’ve explained, this notion is just plain wrong; the abuse pervades the entire industry, yes, including the big household names. And as to the focus on guestworker programs, the alternative, giving fast-track green cards to new foreign graduates of American universities, is just as harmful as H-1B, again as I’ve often explained.

I should add that Sanders did team up with Grassley to ban financial firms using TARP money from using H-1Bs. Good for Sanders, though he may not have realized that the legislation had an enormous loophole: Foreign workers who wished to transition to an H-1B visa from some other visa type were exempt, e.g. foreigners on the F-1 student visa.

It is painful for me to make such statements about Sanders, who as I mentioned is someone I admire. I was in Seattle for a research conference last week. Unknown to me, Sanders was supposed to speak at 1 pm August 8 in Westlake Park, just a block and a half from my hotel. My wife and I walked past the park at about 12:30, and though it was clear that a political rally would be held, there were no signs mentioning that Sanders was on the program. So, we paid no attention to it, and enjoyed a day walking around the city. But around 3 or so, I noticed a newspaper saying that Sanders would speak at 1, and I kicked myself for having missed him. Later I learned that he had been shouted down by a couple of African-American activists, who implied that even Sanders was part of the “racism in our society.” Sanders a racist? What a topsy turvy world we are living in!

I believe that most Americans welcome immigrants. But immigration policy must be a sensible one that is beneficial to those already here. We need a national dialog on the issue, not selfish posturing by politicians. Hopefully Trump’s platform will lead to a broader — and more honest! — dialog on this crucial topic.

A Legal Win for Tech Workers

During the 20 years I’ve been writing on the H-1B work visa and related issues, I’ve heard from lots of frustrated and angry engineers and programmers. Yet, sadly, the tone has changed in the last few years. Earlier, they viewed Congress positively, with the assumption that legislators will “do the right thing” once the widespread abuse of H-1B is explained to them, but in the last few years, I hear from many who feel that this system is solidly stacked against them.

The disheartened should be elated by today’s court decision in favor of a group of tech workers. The plaintiffs had claimed harm from DHS’ 2008 extension of the Optional Practical Training program, which gives foreign students at U.S. universities the right to work in the U.S. for a period after graduation. The judge vacated the 2008 action, which extended the work rights period from 12 to 29 months for STEM students.

What will be particularly satisfying to American tech workers is the court’s finding that

Moreover, by failing to engage in notice-and-comment rulemaking, the record is largely one-sided, with input [cited by DHS in setting the extension] only from technology companies that stand to benefit from additional F-1 student employees, who are exempted from various wage taxes.

This is a rare slap in the face for the tech industry and the Executive Branch officials who do tech’s bidding. It may, however, turn out to be a slap on the wrist rather than in the face, as Judge Huvelle did give the defendants a way out.

The judge found that DHS had not properly put the proposed extension out for public comment, and she also declined to take the “disruptive” step of having her decision implemented immediately. DHS, in other words, may be able to keep its extension if DHS belatedly complies. As you can imagine, when DHS does put this out for comment, it will be inundated with letters of support for the extension by thousands of foreign students, employers, immigration attorneys and so on. And, DHS may appeal the ruling.

The question then will become whether enough of those who oppose the extension will speak out. In addition to the typical reticent personalities of programmers and engineers and the lack of a large, effective organization, there is the problem that most of them simply don’t realize how much OPT is hurting them. As I’ve explained recently, OPT is just as harmful as H-1B, and is rapidly becoming the H-1B cap workaround for employers; indeed, DHS has openly described it as such.

In legal terms, the most significant aspect of this ruling is that the judge declared that the plaintiffs did indeed have standing to sue, contrary to a decision in an earlier case. This is sure to have implications down the road.

So, finally, a win for the underdog! Not a full win, but certainly encouraging.

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