My title here of course refers to President Obama’s plan to circumvent a Congress that is deadlocked on immigration legislation, by issuing Executive Orders aimed at accomplishing part of what the Senate tried and failed to do. Regarding foreign tech worker policy, Computerworld reports that President Obama is contemplating finalizing action such as granting spouses of H-1B visa workers (who hold H-4 visas) the right to work, and not counting spouses in green card caps.
The degree to which such measures would impact U.S. citizen and permanent resident tech workers is unclear. Opening the labor market to the H-4s would clearly have an adverse impact on those already in the market, but the degree is uncertain. As I’ve pointed out many times, one of the major attractions of the H-1B program to employers is that the H-1Bs are essentially immobile if they are also being sponsored for a green card, and sometimes of limited mobility even if not currently being sponsored (e.g. the employer promises sponsorship in the future). The H-4s would have no such restriction, which ironically may reduce their chances to find a job. And since many have been out of the labor market for quite a while, they may quickly learn what many Americans have found–if you’ve been out of a job for six months or more, many employers won’t touch you.
Though unfortunately neglected by many of the H-1B critics, including researchers, green card issues are just as important as H-1B. The Senate would give fast-track green cards to foreign STEM students in U.S. graduate schools, a measure I’ve strongly opposed, as the new grads are almost all young, thus exacerbating the already-disgraceful age discrimination problem that is rampant in the tech industry. But the effect of speeding things up for those already in line waiting for green cards is less clear.
Of course, the aspect that should trouble Americans of all political persuasions is whether Obama–a former constitutional law professor–has the right to do all this. It would seem obvious that he has no such right. The courts tend to stress legislative intent, in this case presumably meaning that if Congress had meant the H-4s to have work rights, Congress would have said so. Yet, when President George W. Bush changed the work rights period for newly-graduated STEM foreign students from 12 months to 29, a Programmers Guild lawsuit opposing the action was dismissed. The cause for dismissal was a lack of standing, but don’t we all have standing, in the sense that OUR Constitution is being flouted? Congress did say 12, after all; Bush (later reaffirmed by Obama) can’t say that Congress meant 29.
As noted in the above Computerworld article, former congressperson Bruce Morrison, who chaired the committee that wrote the H-1B statute in the Immigration Act of 1990, claims that that status makes him an authority on whether Obama can unilaterally change the Act. Yet Morrison is now a lobbyist, with a vested interest (via his client) in such changes–how can he have any credibility? And it is irritating that Morrison continues to say his client, IEEE-USA, represents U.S. engineers on foreign-worker issues, when in fact it has never polled its members on the topic. (The organization, formerly in the vanguard of objection to foreign-worker programs, changed radically after coming under industry pressure around the year 2000.)
The recent Computerworld article cited above also reports that Obama is being asked to institute a priority system for years in which H-1B is oversubscribed, with the Indian “bodyshops” being given lower priority. As I’ve frequently argued, this is a scapegoating effort to distract attention from the fact that the entire industry abuses the foreign worker programs, not just Tata et al. But a prioritization does seem to be within the Executive Branch’s powers, and if so, a much better approach would be to prioritize by salary offered, as has been proposed by some. This would likely reduce the amount of abuse, though certainly not eliminate it.
And where does this all stop? If presidents can get into the legislation business, will their “laws” be, say, exempt from the Bill of Rights? The latter uses phrasing such as “Congress shall make no law…,” but what happens when the president makes “laws”? Surprisingly, this issue seems not to have been settled, making the recent actions by Bush and Obama all the more troubling.