Followup on the Smithsonian

I made a post here the other day about an online exhibit at the Smithsonian, describing the lives of South Asians involved with the H-1B visa program. Computerworld has now run a piece on the exhibit as well. I have a few more comments, including one later that some of your may find very troubling.

But first I want to invoke Freud’s famous remark, “Sometimes a cigar is just a cigar.” :-) With an emotional issue like H-1B, it’s easy to let one’s imagination run wild, and I think that is true here for the Smithsonian incident.

The day I posted about the exhibit, an academic I know wrote to me, calling my attention to the last panel of the exhibit, which this academic felt was suspicious, with ominous-sounding phrasing, “The exhibit featured here may in some cases have been created by an independent third party…” But really, folks, this phrasing has all the earmarks of a boilerplate legal disclaimer, no sinister plots.

Now the Computerworld article quotes Professor Ron Hira, who as many of you know is a prominent critic of the H-1B program:

The challenge is in the framing of the exhibit, said Ron Hira, an associate professor of public policy at Howard University and a longtime critic of the temporary work visa program. “Will it become a way to conflate H-1Bs with green cards?” he asked.

A green card is issued for permanent residency.

“If so, and my guess is it will turn out that way, then the Smithsonian is playing in the political realm by distorting how the H-1B program is used by South Asians,” said Hira. “The majority are now used for temporary labor mobility only.”

I’ve never understood the argument that green card sponsorship somehow makes the Intels more responsible in use of foreign worker programs, while the “evil” Infosyses rarely use the green card process. On the contrary, the Intels are arguably worse, because they use green card sponsorship as a way to keep the foreign worker immobile during the many-year process.

At any rate, I don’t think there is a nefarious scheme afoot at the Smithsonian. Ron is certainly correct that the Smithsonian improperly conflated H-1B with green cards, and by the way, they also conflated Asians with Asian-Americans. But I don’t think it’s deliberate. My experience with ethnic activists, in this case the artists in the exhibit and its curator, is that they don’t put so much emphasis on technically precise language as for example, a mathematician like me does. And the fact is that most employment-based green card sponsorees from India have begun work as H-1Bs. So, not so far off, really.

However, that doesn’t mean I’m letting the Smithsonian off the hook, because guess what! — the Smithsonian hires H-1Bs too. And the biggest job category is not something like, say Ichthyologists, but in fact is Computer and Information Specialists.  IT people! Not a lot them hired, but this certainly sounds fishy (if you don’t mind the pun).

Some of you must be wondering how a government agency can hire an H-1B. I don’t know the details, but I’ve been told it’s common, including on the state level. I remember years ago, an immigration attorney told me he had represented the California state government in hiring an HP 3000 programmer, for a machine popular at the time.

I don’t think the foreign workers were hired to save on wages directly, in the sense of underpayment. A more likely reason is that they had found that Americans weren’t sticking around long at low government wages, and the Smithsonian wanted immobile workers, just like the Intels do. If so, that means they probably sponsor these foreign workers for green cards, again showing that such sponsorship doesn’t imply the employer is acting responsibly.

Another possibllity is that the Smithsonian wanted to hire programmers for localization, meaning in this case software that can handle English and Chinese, or English and Spanish and so on. But there are tons of U.S. citizens and permanent residents who have that skill.

This reminds of the time in 2008 when the Dallas Morning News sponsored a bilingual sports photographer for a green card. A reporter for the paper told me this during her interview of me, and she laughed out loud at the fact that the publication was claiming it couldn’t find Spanish-speaking American photographers — in Dallas, not Des Moines. (Today you could probably find them even in Des Moines.) See also related material in a 2011 e-newletter posting of mine.

Note again that the Morning News sponsored the foreign photographer for a green card. Does that make it less of an abuse? That reporter sure didn’t think so; she was laughing at the absurdity of it, but she was not pleased.

Speaking of wrong conflations: Don’t equate green card sponsorship with ethics.


David North on Durbin/Grassley

As I stated recently, David North of CIS is one of my top favorite people in DC. He’s sharp, he’s savvy, he has a fantastic background, and above all, he is simply a nice gentleman of the old school.

I thus read with interest David’s recent blog post on the Durbin/Grassley H-1B/L-1 reform bill. Part 2 came out today, with one more part coming. Unfortunately, I’m almost as disappointed with David’s take on the bill as I am with the bill itself. Indeed, I’m disappointed with both because I had high expectations for both.

I’ll focus here on the bill’s provision in Section 104 that would give visa priority to foreign students earning advanced degrees (this means primarily Master’s degrees in practice) in STEM at U.S. colleges and universities. David and I couldn’t disagree more with each other on this issue; I’ve described it as the worst part of the bill, while he regards it as a big plus. (The old programming joke, “Is it a bug or a feature?” applies. :-) ) David writes,

The motivation for the proposed distribution scheme [in Section 104 of the bill] is to encourage the payment of higher rather than lower wages…

while I wrote,

I was stunned by a feature in the new bill that prioritizes the doling out of visas. Actually, I have endorsed proposals made by others to prioritize in the order of offered salary, but this new bill doesn’t do that. Instead, it places foreign students as top priority — a blatant gift to the Intels. Workers who really do have a high salary offer (defined as the top of the 4 levels in the current prevailing wage system) would only get second priority. This makes no sense at all, especially in light of documented evidence that the foreign students are of lower average quality than the Americans. Presumably this was a move to make the bill palatable to the industry, but it’s just wrong.

Here I believe that David (of all people) has succumbed to the industry PR machine to portray the foreign students as all being genius grads of MIT. A small percentage are indeed of that caliber, and I’ve often publicly called for measures to facilitate their immigration. But most of the foreign students are not of that quality at all, and in fact are much more typically from, say California State University, East Bay (formerly Cal State Hayward), an example worth expanding upon.

Some of you may remember that CSUH achieved notoriety when its administration decreed that, due to budget problems, the only admissions for graduate programs in the coming semester would be non-residents, technically including non-California Americans but mainly consisting of foreign students. For example, 90% of the graduate computer science students were foreign.

There are some truly excellent students at any school, but CSUH is certainly no MIT. It’s very easy to get into their program (if you’re a foreign student). A courageous CSUH biology professor, Maria Nieto, spoke out:

A number of my colleagues from different departments around our campus have chimed in that the increase of acceptance of foreign students into graduate programs has actually decreased the quality of the students that they are actually seeing in the classroom. We’re taking a lot of students for example that are not prepared, because they can pay. And I really worry about this.

So, NO, the Durbin-Grassley bill is NOT targeting the MIT geniuses. In many cases, it’s exactly the opposite — very weak students, who will get low pay offers, but for whom D/G will roll out the red carpet.

It’s ironic that many of the immigration reform groups, including I believe CIS, have opposed bills to “staple a green card” to the foreign students’ diplomas precisely for the above reason — they would turn the universities into diploma mills. Yet here David is praising the D/G bill’s provision that would do exactly the same thing — and which myriad schools like CSUH are already doing.

California has more than two dozen CSU campuses. Though CSUH is the one that made news, the level of the students at the other CSUs is similar to that of CSUH, with similarly high concentrations of foreign students. Since people are so obsessed with the Southern California Edison and Disney cases, in which Americans were replaced by foreign workers, I pointed this out in my “advice” to employers on maintaining business as usual under Durbin/Grassley:

The Googles and Facebooks will grab the MIT grads, of course, but you’ll have plenty of students left to choose from who are of quality equal to or better than the H-1Bs you currently use from Indian schools. If you are a company like SCE in southern California, for instance, there are no fewer than TEN CSU campuses nearby, and lots more just a day’s drive away, easy to bring in for interviews.

Let me emphasize strongly: It’s not just the CSUs. We also have 9 UC campuses in California, including my own, UC Davis. While some of my foreign students have been outstanding and I have helped get them jobs in Silicon Valley, most are very ordinary. I wrote the other day,

(Part 2 of rant.) It’s also highly frustrating to me to continue to see my foreign students get jobs from the same employers who are rejecting older Americans I know who have the same qualifications, yes, including up-to-date skills. Again, this is what the other researchers and policymakers on H-1B don’t see. I don’t begrudge the foreign students’ success in their job search, and sometimes write good letters of reference for them, but this just ain’t right.

I have to assume that David would agree that no, this just ain’t right. Yet in praising D/G’s giving top priority to foreign students for visas, David is making it even harder for those bypassed Americans to get jobs. His blog post often has the theme that, though the bill isn’t perfect, it’s better than nothing. But no it isn’t, not when it would make things even more difficult for my American friends cited above.

Similarly, D/G would make things HARDER for Americans like Darin Wedel, whose situation I recently reviewed. He’s the one whose wife challenged President Obama on the H-1B issue. I wrote that in all likelihood, Wedel’s applications for jobs to nearby Texas Instruments were rejected in favor of hiring H-1Bs, and these H-1Bs in almost all cases were foreign students. D/G would be disastrous for people like him. TI’s source of H-1Bs is from the pool of foreign students, not from the Infosyses.

Another way the bill’s preference for foreign students would make things even worse than now: Recall that the bill also would add a nominal requirement that H-1B employers giving hiring priority to Americans. I pointed out that the same requirement for green cards has been famously circumventable, but especially for foreign students, due to the Optional Practical Training part of the F-1 foreign student visa: The employer hires the foreign student right out of school under OPT, has the student work for a year or so, and then applies for an H-1B visa for the student. The latter, having acquired experience on the job, is automatically more qualified for the job than the American applicants, who will then be easily rejected by the employer.

In other words, the bill really misses the boat, and arguably makes things even worse than now. How could those hoping for H-1B reform have gone so far wrong?

Again, all this tragic misassessment of D/G stems from the obsession people have had — especially among the immigration reform people — with the “Infosyses,” the rent-a-programmer firms. I had been cautioning against this for years, but the obsession became even more intense after the Infosyses were found to have supplied foreign workers to SCE and Disney.

Since D/G is focused on the Infosyses (which for example is the reason for giving the foreign students priority), it was then only natural for people to treat D/G as manna from heaven. In the CIS press event on the new Malkin/Miano H-1B expose’ book (at which David urged people to short Disney stock), people in the audience applauded loudly when Francis Cissna, one of the bill’s architects, spoke about the bill.

That was a rush to judgment, folks.

Gender Matters, Forget Age?

One of the more obscure features of the recently-announced Durbin-Grassley bill on H-1B/L-1 visa reform is to mandate better data collection on the visa holders, particularly on gender. We really need the gender data, supporters say.

Really? I’m concerned about  gender discrimination in the tech industry, but I’d argue that there is far more pressing data that ought to be collected — say, counts of Americans who apply for jobs that ultimately are filled by H-1Bs.

Collect data on gender of H-1Bs — how Politically Correct! Unfortunately, there is no concern for age discrimination, arguably a much more troubling problem, in that:

  • It affects both genders (women are actually worse victims than men, I believe).
  • Age discrimination in tech has been shown in a number of studies, whereas there is merely speculation in the gender case.
  • Most important, the connection between H-1B and age is quite clear.

Concerning this last bullet: Young workers are cheaper, and the vast majority of H-1Bs are young (there IS data on that). Unless you believe that H-1Bs are hired to remedy labor shortages or because they are especially talented (the data pretty clearly have disproven both notions), the age/H-1B connection is quite clear.

In all the commotion over the SCE and Disney cases, in which Americans were replaced by cheaper, foreign workers, one never hears about WHY the foreign workers were cheaper. Was it because those employers, and their Indian bodyshop agents, were breaking the law? No; the government investigations found nothing illegal. No, the real reason those foreign workers were cheap is that they were YOUNG.

And this is hardly news. At a time when suddenly a lot of folks are discovering that the numbers of women in tech are low (and dwindling), no one seems to realize that the problems of older tech workers were confirmed back in 2001, in a congressionally-commissioned report. Yet the age issue, which I’ve been pressing since the last millenium, just doesn’t seem to get any traction. But gender! Now that’s urgent, it seems we are being told.

So, how did that gender provision get into the bill? I’ve never heard Durbin or Grassley bring up the matter in the past. The likely answer is IEEE-USA, whose Paul Donnelly has been working with D/G, I hear.

Dr. Karen Panetta (daughter of Leon), a Tufts EE professor and IEEE-USA official, has been beating the drums about the lack of gender diversity among the H-1Bs, especially among the Infosyses, a favorite whipping boy of IEEE-USA and the major focus of the D/G bill. But if you actually run the numbers with her data, the bodyshops actually come out looking pretty good.

In fact, my own speculation has been that among the H-1Bs in general, the gender balance is actually better than it is for the general populations in the affected professions.

In fairness to D/G, I should note that the main part of the bill that I praised — in a sea of criticism — is the provision to eliminate the breakdown of H-1B prevailing wage law by experience level (read age). At least I hope that that is what the provision means, as it is a little vague. As I mentioned, this aspect was the first to be jettisoned in earlier D/G bills, and will almost certainly not survive if the bill moves forward, but at least it does address the age issue.

Yes, gender discrimination is a concern, but in this case I say it’s a distraction from the primary issues.



Smithsonian Exhibit Glorifies H-1Bs

As NBC News reports,

The Smithsonian Asian Pacific American Center launched a new digital art exhibition Monday to celebrate the 25th anniversary of the H-1B visa.

The themes are along the lines of the hard lives of H-1Bs and their spouses, the exploitation of the workers and so on.

I wish to emphasize that I think it is a very legitimate topic for the Smithsonian. Needless to say, though, the Institution is quite remiss in not telling the other side of the story — the U.S. citizens and permanent residents who have been sad victims of the H-1B program, with effects ranging from reduced wages to highly stressful periods of unemployment to losing one’s house to forced abandonment of STEM careers to marital breakups and even to suicide.

If the Smithsonian had wanted to retain the Asian aspect, there are lots of Asian-Americans who have been hurt by the H-1B program. Well over half of my undergrad students, for instance, are Asian-Americans (not Asian foreign students). Thus there is no shortage of Asian-American victims of H-1B.

I’ve mentioned before my student from 20 years ago, “Jim.” Encouraged by his Chinese-immigrant parents, he worked hard in school, with a dream of becoming an engineer. He earned a Bachelor’s degree in EE and a Master’s in CS. He then joined a major tech firm and did so well that he was written up in the Wall Street Journal. Yet he was later caught up in a layoff, and got increasingly unstable jobs after that. Finally, he bit the bullet and left the field. He worked in non-technical contexts for some years, and is currently employed as a technician, well below his background and talents.

I get the impression that the curator of the exhibit has taken the current furor over H-1B as an attack on Asians/Asian-Americans, just as Michelle Malkin described. If so, the curator would have done well to consider stories like Jim’s. And he may be interested in a 2001 article, which found that “U.S. tech workers don’t resent foreign workers themselves, the survey found, but are more likely to blame employers for any problems.”

But the curator’s motivation for hosting the exhibit may be more than ideological. With all the recent negative publicity about the Indian rent-a-programmer firms such as Infosys, some Indians/Indian-Americans may have had PR in mind, and contacted the curator with a suggestion.

This occurred some years ago when some graduates of the Indian Institute of Technology launched a campaign called Brand IIT. This resulted in an embarrassingly fawning piece on 60 Minutes on the IITs. The producer told one of my readers that the piece had been suggested by “an Indian doctor.” Ironically, the 60 Minutes segment featured Narayan Murthy — founder of Infosys. Around the same time, the San Jose Mercury News was running TV commercials featuring an Indian saying, “Without Indians, there would be no Silicon Valley.”

Obviously I disagree with that claim, but my point here is that there have been PR efforts before, and the new museum exhibit may be an example today. Indeed, the exhibit is worse, as it claims that Asian immigrants have been the source of the Valley’s innovation, an amazing statement in view of the frets by East Asian governments that their rote-memory educational systems destroy creativity.

I should note, though, that one panel in the online version of the exhibit states

The problem of an indentured servant is now new. But the H-1B visa puts a new twist on the matter.

This of course is a point I’ve emphasized: The “Intels” love the foreign-worker programs (H-1B plus green card sponsorship), because they render the worker immobile, something of immense value to the company, even more important than saving on wages.

By the way, the curator, Konrad Ng, is Pres. Obama’s brother-in-law.

Again, I don’t fault the Smithsonian for hosting this exhibit. But in the title, did they really have to say that they are “celebrating” the H-1B program?


The Main Characters in H-1B Story Speak at CIS Event

Well, not all the main characters, but certainly some of the interesting ones. The Center for Immigration Studies recently held a panel discussion at the National Press Club in DC. In addition to Michelle Malkin and John Miano, coauthors of the excellent new book on the H-1B mess, there was Leo Perrero, one of the Disney IT staff replaced by H-1Bs earlier this year in the now-infamous incident. Videos of the event are available, which I highly recommend watching. And in the Q&A — always the most interesting part of any talk or panel discussion — a couple of nonjournalists spoke up who are major players concerning H-1B, as you’ll see below.

My post here will not be an extended analysis of what was said, but rather some points made by the various speakers that I think deserve special comment.


She spent quite a bit of time discussing the failure of the mainstream media to properly cover H-1B and related issues. She asserted that this failure has been deliberate, but I am not so sure. I believe it is at least in part due to the huge success the industry PR people have had in implanting in the American consciousness the notion that we have a STEM labor shortage, that the H-1Bs are geniuses, etc.

Nevertheless, it is likely that certain elements of the media are censoring the topic to some degree. I’ve mentioned for example the very poor coverage in the last few months by the New York Times. The Times had pretty good coverage during 1998-2000 but then went into hibernation on the issue. And though the paper has run several major pieces on H-1B, they have chosen to ignore most of the important points that I and others brought up when their interviewed us.

Malkin mentioned that on the one hand, the new book had gotten her onto CNN, but on the other hand this was the first time she had ever been on the network, rather startling considering her prominence as a journalist. And by the way, in the same pattern I described above for the Times, CNN interviewed me several times during the 1998-2000 period, but not since then.

One point Malkin brought up, which may have slipped right by most ears, is that she, as an Asian-American daughter of an immigrant, has been called a “traitor” by minority activists for speaking out on the problems of immigration. Such, she pointed out, is the result of the excesses of the much-radicalized “diversity” movement on many college campuses today. This has recently led to at least three firings of deans and presidents, due to the radicals’ demands. I strongly support diversity and don’t pretend everything is quite rosy in racial terms on the campuses, but one of the firings in particular was highly unwarranted. I plan to write about this in the near future.

Malkin cited the case of semiconductor engineer Darin Wedel, whose wife Jennifer managed to get a slot in an online town hall meeting with Pres. Obama, in which she demanded to know why Obama was supporting the H-1B program when people like her husband were out of work. Malkin said that this exchange should have been big news, with the media having a feeding frenzy over the inequity. But instead, Malkin pointed out, some in the media accused Wedel of xenophobia! (I was told that one of the reporters making that accusation was David Nakamura of the Washington Post.)

After the incident with Mrs. Wedel, I later posted an analysis of how almost certainly Texas Instruments was hiring H-1Bs into jobs for which Darin Wedel was qualified. Note carefully that — again! — this would be cases in which H-1Bs were hired instead of Wedel, not to replace Wedel. The obsession with the word replace in the discussion on H-1B is way overblown, and harmful.


John gave a first-rate presentation as usual, detailing the fact that the “Gambling? I’m shocked” attitudes we’ve seen in Congress recently on abuses of H-1B are highly disingenuous, to say the least. On the contrary, Congress has over the years deliberately legitimized the abuses by writing the law to allow them, even facilitate them.

John mentioned having to clean up a mess made by incompetent H-1Bs at AIG back in the 1990s. That raises the question (though curiously, no one did raise it) as to why employers are willing to take the penny wise, pound foolish route of hiring weak foreign workers. I think there are a number of reasons for this, ranging from a perception that programmers are just interchangeable commodities to an inability in employers to recognize poor work when they see it.


For someone who is not a veteran in these panel discussions, he did an outstanding job — low key, to the point, nonpolemic.

Perroro was asked why more programmers don’t speak out about H-1B, and organize. He gave the answers I usually give — techies are typically not the types to speak out, and they are afraid of blacklisting by employers — and he also added that it’s very difficult to find an IT job these days, at least in the Orlando area. He went on at length on that point, referring to it as a situation of musical chairs, with too many workers scrambling for the few available chairs.

John added another point that I’ve made as well: Most programmers simply don’t know about the H-1B problem. They don’t realize until, say, they are laid off and find that obtaining another job is far more difficult than they had expected.

One especially interesting comment Perrero made was that he thought at the time, “What if all of us [fired workers] were to band together and refuse to train our foreign replacements? Disney would be forced to back down.”

The Question-and-Answer Session

In addition to journalists, there were a few people in attendance who are involved in H-1B reform. Two who spoke are worth special mention.

Paul Donnelly:

Paul is with IEEE-USA and is a longtime associate of lobbyist Bruce Morrison. I’ve known Paul for 20 years, and though I understand his views well, I don’t think he’s ever understood mine. :-) I can’t blame him too much for that, because my objection to his support of proposals (to give fast-track green cards to young new STEM foreign students would exacerbate the already-rampant age discrimination in tech) isn’t understood well even by critics of H-1B.

As noted above, a reporter in the audience had earlier asked Perrero why tech workers don’t organize. Paul then said “I represent the largest tech workers association in the nation,” an egregiously misleading statement. IEEE-USA has refused to poll its members on the H-1B issue. In 2000, the year Paul started work for the organization, they disbanded their excellent Misfortune 500 Web page, profiling 500 engineers who were having troubling finding work, right in the middle of the Dot Com boom. I believe most of their members don’t even know what IEEE-USA is doing about H-1B. The notion that this organization “represents” its members on H-1B is outrageous.

Paul’s answer to Malkin’s complaint that any criticism of H-1B is met with charges of xenophobia was to deflect such charges by supporting fast-track green cards.

There is much interesting, and very unflattering, material on Paul and Morrison in Malkin and Miano’s book, especially in pp.272-273. During the Q&A, Paul, alluding to the phrase “beltway crapweasels” in the book’s title, joked, “I’m one of the crapweasels,” prompting Malkin to interject, “You ARE!”

Francis Cissna:

He is Director of Immigration Research at USCIS, the immigration section of the Dept. of Homeland Security. As I understand it, he has been temporarily detailed to staff work with Senator Grassley.

My interactions with Francis have been very limited, but it is clear to me that he is very sincere, a decent guy who by the way is passionate about keeping Americans in STEM. (He has a physics degree from MIT.) Good for him.

He noted that Grassley and Durbin have a new bill “that addresses this whole nightmare.” He emphasized that “The primary reform of the bill is that it requires employers to hire Americans first…” That provision, which has always been in the green card process, has been shown to be notoriously ineffective for years, as illustrated in the TubeGate videos. Indeed, Sen. Grassley is quite familiar with these videos, as he wrote a letter of protest about such behavior. This is standard practice throughout the industry — recall the statement from prominent immigration attorney Joel Stewart, “Employers who favor aliens have an arsenal of legal
means to reject all U.S. workers who apply” — yet the Grassley bill does nothing to fix it; it merely reuses the same failed policy, one that immigration attorneys thmselves have called a “charade.” Since Francis bills this as the “primary reform” of the bill, they should have done much, much better. I’m sorry, but that reform is essentially useless. Under the bill, it would be business as usual for the employers.

This is especially key in light of the fact that the bill does nothing to rein in the OPT program, which gives work rights to foreign STEM students, and which USCIS has been pushing to extend, not cut back. This ties directly in to the issue of giving (or not giving) Americans hiring priority.  Here is what I wrote when the bill was first announced:

…as the Cohen and Grigsby videos show, the current green card process, which (unlike H-1B) already requires recruitment of American workers, is easily circumvented. This will get even worse if the current White House proposal to expand OPT is approved, as the foreign students will acquire experience in the job supposedly posted on the Internet as open to all, thus rendering the foreign students “more qualified” than the Americans. (Alas, the bill does nothing about OPT.)

As I mentioned above, in all likelihood Texas Instruments passed over Darin Wedel for numerous jobs for which he was qualified, while hiring H-1Bs instead. Moreover, as one of the “Intels,” TI likely sponsored most of those H-1Bs for green cards as well, thus going through the same process that the new bill would add to H-1B hiring. So, had the Durbin/Grassley bill been in place at the time, it would have been of no help to Wedel at all.

For that matter, what about Leo Perrero? Suppose the Durbin/Grassley bill had been enacted a year ago. Would the firing debacle have been prevented? That seems highly doubtful. For one thing, Disney could have hired OPTs; as non-H-1Bs, the situation would not be covered by the bill. (Showing once again how important OPT is.) There are many other possibilities.

Moreover, in the future replacement wouldn’t be an issue anyway, because Disney would be hiring foreign workers INSTEAD OF Americans rather than TO REPLACE Americans. Once Disney starts using foreign workers in those positions, they will always do so.







Today’s Example (Plus Rant): Sr. Modeler Advanced Healthcare Analytics

In my earlier post today, I mentioned, as I often do, how “recruit Americans first” policies, currently in place in the green card process and for H-1B-dependent employers, are easily circumvented, by tailoring the job ad to the foreign national whom the employer wants to sponsor. From now on, I will often post such ads, to make concrete for you readers how the system works. I’ve done so many times before, but I’ve found that many people need reinforcement. :-) Note that there are far more such ads than I have time to post here.

Today’s example is an ad for an opening titled Sr. Modeler Advanced Healthcare Analytics. In case you are a bit behind the times, analytics is one of the currently-favored synonyms for statistics. Other currently popular terms are predictive analyticsdata science, data miningBig Data, machine learning and so on. The first sentence of the ad is likely a good description of the job:

Designing and developing intelligent solutions working with health insurance claims data, preventing fraud, predictive modeling, statistical modeling, data mining, fraud analytics, deriving business insights, solving complex business problems, improving decisions, analyzing medical policies, risk/revenue analysis, cutting out waste and abuse…

Now, look at the laundry list of required skills:

MLR, SQL, SAS, SPSS, R Excel, univariate and multivariate regression analysis, GRM, factor analysis, sampling methods, survey sampling, clustering, classification, CART, Decision Trees, CHAID, Linear Optimization.

This is my field, folks. If you recall, in my earlier post today, I quoted immigration lawyer Joel Stewart, and noted that he has “literally written the book on the green card process” (The PERM Book). Well, I literally wrote the book on the R language (The Art of R Programming). I’ve done research on regression and classification throughout my 3+ decade career, and am currently working on a book on that too. Etc., etc. I even accidentally referred to Durbin/Grassley as “Durbin/Watson” (a statistical time series method) in a recent post to my e-mail list. :-)

I point out my background because I “know where the bodies are buried.” Unlike the other researchers in H-1B and related issues, I know in detail what is involved in typical jobs for which the “Intels” (i.e. mainstream employers, not rent-a-programmer firms like Infosys) hire foreign students. Forgive the rant, but I have to say it’s frustrating to see analysis and policy being pontificated by people who have no idea what CART is (it’s that thing you push in the supermarket, right?) or what Linux internels are.

(Part 2 of rant.) It’s also highly frustrating to me to continue to see my foreign students get jobs from the same employers who are rejecting older Americans I know who have the same qualifications, yes, including up-to-date skills. Again, this is what the other researchers and policymakers on H-1B don’t see. I don’t begrudge the foreign students’ success in their job search, and sometimes write good letters of reference for them, but this just ain’t right.

With that point being made, let me tell you: It’s ridiculous to demand that the applicant know SPSS and SAS and R; one of the latter two is sufficient. There is similar redundancy in the rest of the laundry list.

Given how specific the skills list is, it might appear odd that the educational list is so broad: “MS in Statistics, Computer Science, or other related Quant discipline.” This is likely because the foreign national they wish to hire actually is in some “other related Quant discipline”; could be business, geography (GIS) or something like that, with a lot of coursework in “analytics.” The listed salary is suspect, likely bait-and-switch, but certainly below what a good candidate would get in an uber-expensive area like NYC.

This is a textbook study of how employers circumvent recruiting requirements, and would continue to do so if the Durbin/Grassley bill were to pass. They tailor the ad so that only the desired foreign worker qualifies. It’s the oldest trick in the book, and standard practice among the big mainstream employers in Silicon Valley and throughout the nation. I mentioned earlier the “TubeGate” videos and Stewart’s “arsenal of weapons to reject all Americans” remark, but those are only the tip of the iceberg.

The Dept. of Labor people are no dummies, and they understand that this is common. But the statutes and regulations are vague to put it mildly, lots of gray area, and in any case the DOL has no expertise in CART or Linux internals or whatever. They really have to take the employers’ word on the “need” for the stated qualifications. And need I point out that Durbin/Grassley does nothing about this? Once again, folks — business as usual for the Intels. (And for the SCEs and Disneys, as I’ve explained.)

It is of course no accident that this ad has phrasing like “Sponsorship: Yes” and “2+ years of U.S. experience.” D/G does try to address this, but really, there is nothing D/G can do about such phrasing; the ad does NOT exclude American applicants.

And last but not least, note that this “Senior” position requires only 2 years of experience. Senior! I’ve shown so many examples over the years of this, which goes directly to the connection of H-1B and age discrimination in the tech fields. Employers use H-1B as  a vehicle to hire young H-1Bs in lieu of older (35+) U.S. citizens and permanent residents.

What else can I say? Plain as day.

Correction Regarding the Durbin/Grassley Bill

In reading the D/G bill for the umpteenth time late last night, I realized that I had been unwittingly skipping over Section 101(d)(2), as it was so short. (A Hill staffer also contacted me about this today.) I had earlier stated that the bill contains no provision requiring employers to give hiring priority to American workers, but in fact this section does so. The title of the section is even “Recruitment,” so it’s doubly odd that I missed it. My bad. Unfortunately, though, it really doesn’t make any difference.

As many of you know, in existing law there are two places in which employers must try to fill a position with a qualified American:

  • “H-1B-dependent” employers, defined as those with 15% or more of their workforce being H-1Bs must show they tried to recruit Americans for the job before filling it with an H-1B.
  • Employers sponsoring a foreign worker must also show they tried to hire an American first.

And as many of you also know, both of these requirements have been dismal failures:

  • The H-1B-dependent employers, such as Infosys and TCS, are staffed almost entirely by H-1Bs (and L-1s).
  • The infamous “TubeGate” videos show lawyers in a prominent immigration law firm, Cohen and Grigsby, explaining exactly how to circumvent the recruitment requirement. The videos, ironically shot by the firm as a promotional vehicle, were quite explicit in the goal. Here is an excerpt:

    And our goal is clearly, not to find a qualified and interested U.S. worker. And you know in a sense that sounds funny, but it’s what we’re trying to do here. We are complying with the law fully, but ah, our objective is to get this person a green card, and get through the labor certification process. So certainly we are not going to try to find a place [at which to advertise the job] where the applicants are the most numerous. We’re going to try to find a place where we can comply with the law, and hoping, and likely, not to find qualified and interested worker applicants.


I’ve shown numerous examples of this in job ads, often posted by Silicon Valley firms, over the years.

How do they do it? As Joel Stewart, an immigration attorney who literally wrote the book on the employment-based green card process, put it:

Employers who favor aliens have an arsenal of legal
means to reject all U.S. workers who apply

The employer may say, for instance, that not only is the Python programming language needed for the job, but it must be Python on a Mac, and moreover, it must be Python on a Mac with applications to the medical industry, and not only that, but it must be Python on a Mac with applications to the medical industry in Los Angeles County, and not only that but…well, you get the idea.

The language of the bill says that the employer must offer the job if the American is at least as well-qualified as the prospective H-1B hire. But as you can see, the word qualified can be manipulated every which way.

For example, I’ve mentioned the strong connection of H-1B and age discrimination. I’ve often shown examples here in which employers such as Intel have jobs earmarked New College Graduate and Recent College Graduate or similar language. That immediately makes the older American applicant unqualified. So much for giving priority to qualified American applicants! And remember, the D/G bill gives priority to foreign students in the awarding of H-1B visas, which I consider the most harmful part of the bill.

In my first post about D/G, I wrote

…as the Cohen and Grigsby videos show, the current green card process, which (unlike H-1B) already requires recruitment of American workers, is easily circumvented. This will get even worse if the current White House proposal to expand OPT is approved, as the foreign students will acquire experience in the job supposedly posted on the Internet as open to all, thus rendering the foreign students “more qualified” than the Americans. (Alas, the bill does nothing about OPT.)

These comments also apply to the bill’s recruitment requirement. Employers will hire a foreign student on OPT, and the next year, after she has special experience in the job, apply for an H-1B visa for her. She will then be “more qualified” than American applicants for the job, by virtue of the experience gained, and so employers can reject the Americans out of hand.

I endorsed  the original D/G bill in 2007, but stated clearly that I did so mainly because it proposed a very powerful reform of the prevailing wage requirement. That bill also had a U.S. worker recruitment provision, but I explained that it would be easily circumvented:

Though non-H-1B-dependent employers have not been subject to the “good faith recruitment” requirement before, the employer-sponsored green cards have always had such a requirement. Typically employers circumvent that by requiring so many special skills that the only one in the world who would qualify is the foreign national they want to hire.

Thus the best I could say for that provision was that it would have “some value” (just as I said the Internet posting requirement in the current bill would be “somewhat helpful”).  The current D/G bill also has such a provision. But as I pointed out recently, the prevailing wage reform in 2007 was the first one to be emasculated in the subsequent political negotiations, and the same is sure to occur with the current bill.

Sorry for my error, but nothing has changed about my negative assessment of the current bill.