DIY Legislating

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.

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21 thoughts on “DIY Legislating

  1. Wouldn’t the liberals be fairly, to say the least, indignant if Geedubya would have even attempted to do something like this?
    I guess its more important to please the clients of the democratic party and break faith with the very people that made the party what it used to be.
    One that stood up for the American worker and not what the Chamber of Commerce or a few wealthy donors.
    We need a third party. Not the tea party. Not the libertarian Ayn Rand anarchists.
    A party that will stand up for working Americans.

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  2. The prohibition on working in the US while on H-4 visa status, has nothing to do with the labor market. The rule is based on the fact that an H-4 is not allowed to form any ties with the U.S. Originally that was also true for H-1B visa holders but around the year 2000 it was watered down.

    When I came in ’94 – on an H-4 indeed – the economy was starting to boom and there were many job openings. I was offered a job just about every other week. Some potential employers even got abusive towards me when I said that I would love to work at the store/office/practice/etc. but that their Government did not allow it. “Our Government would NEVER prohibit someone from working ! You are just a lazy broad !”

    Why are the H-4’s singled out for this cruel and harsh punishment ? Permanent immigrants can start to work as soon as they get of the plane. Of the temporary immigrants (non-immigrants) L-2 and J-2 visa holders, E-2 and E-3 spouses, spouses of G 1-4 visa holders, they all can apply for an EAD – a Work Permit – immediately after arriving.

    Yes, the H-1B program is misused, abused. But how does ruining the lives of a group of about 100,000 people – for over 80% women – help remedy this ? I await the A. to that Q. for over twenty years already.

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    • There are so many lives of Americans being ruined. An H-1B and his/her spouse comes to the U.S. (or did, before the recent change) knowing that work rights won’t be available, just like the spouses of F-1s. You make the decision accordingly.

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      • When I decided we would indeed go to the US, the waiting time for a Green Card was under two years – and I came almost one year later than my husband. But thanks to a lot of different factors, it became eight – very long & stressful – years. By then of course it was over for me, too long unemployed, too old.

        And who tells the truth ? The employer who wants to hire the H-1B ? The lawyer who is paid for a succesful petition ? The U.S. Embassy/Consulate who puts the visas in the passport ? None of these.
        And even if an off-hand remark is made about not being allowed to work, it is not mentioned that most H-4’s will NEVER work in the U.S., therefore will have no Soc.Sec./premium-free MediCareA rights.
        If the immigration fails, if the marriage fails, there is no way out. H-4’s are stuck, courtesy of the U.S. Government.

        An H-4 is also not allowed to (meaningful) volunteer, to start a business, to continue an existing business in the home country – while in the U.S., nor can she work for a foreign employer while in the U.S. All of this is NOT mentioned.

        And as I already said elsewhere, the H-1B worker is NOT paid enough to maintain two households, one here, one there. So how are we supposed to know that this is what we are meant to do ?
        Also does taking a job in the U.S. mean that from then on you can have sex only once a year ? Also not mentioned !

        F-1 visas are for students, who come to the U.S. for a limited time and then leave. The H-1B visa is DUAL INTENT, which means the worker is allowed to immigrate permanently. So the comparison is ridiculous.

        Furthermore does no-one realize that by prohibiting to work, by making H-4’s lose their abilities, by not allowing them to add value to their resumes, they CANNOT go back home after a few years in the U.S. Because by then overthere they are as unemployable as they have become here.
        I put it to you that MORE H-1B’s would return home, if they had a nest egg thanks to a working spouse and if the spouse had (better) job prospects in the country of origin.

        Prohibiting people to reach their potential is what totalitarian regimes do. So no immigrant expects it to happen to her in the U.S. – the country of opportunity, the land of the free, the home of the brave.
        The H-4 visa is shameful and so is defending it !

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        • It is definitely true that if an H-4 goes several years without work, especially without local (i.e. U.S.) work, he/she will find it extremely difficult to get a job once the person acquires work rights. But the same is true for Americans who go several years without work in their field, and the H-1B program is frequently a big contributing factor to that lack of work.

          The sad truth is that no law or policy is perfect. One has to try to strike a balance, and that was not done in the design of H-1B. It was intended to benefit the employers, not the workers, whether American or foreign. THAT is the big shame to the U.S. image.

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        • I’m sorry, but after being unemployable from 2003 to 2015 I just have no sympathy for those that destroyed my life by forcing me out of the job market.

          If we were discussing your country and how you were working to create jobs in your country, maybe.

          but here in America, no…

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  3. My husband did NOT steal a job. He pulled several projects from the brink of failure, he saved jobs, he helped create new jobs. He mentored the people in his teams and other workers too, so that they could go on to better and better paying jobs inside the company or outside. He helped build products that are sold all over the world, making money for the co.’s where was employed, and for the U.S.

    The current lack of jobs in the U.S. is caused by many factors: the broken immigration system, greed at the top, too many wars being fought in too many countries, the breaking down of the U.S. education system, etc. etc.
    However, people from my home country who marry a U.S.citizen or win in the Visa Lottery, usually have NO problem at all in rather quickly finding good, well-paying jobs. They are preferred by employers because they work harder and better. They show creativity and initiative.

    Many H-4’s owned a business in their home country. They could have created employment here, if the U.S. had let them.

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      • He was hired because he had unique qualifications. In fact, he was offered the job, did not respond at first, and about 6 months later the co. still had been unable to fill the job. The project was on the verge of failure. The co. was ready to scrap it, and pink-slip the whole team. He went in, worked long days/long weeks, saved the project and also the jobs. He was also very talented as manager, inspiring his people.
        My husband was 35 when we immigrated, with not only education but also many years of experience. In those days an H-1B had to prove he was THE man for the job in question. (And the cap was not reached.)

        You, and many others here are suffering from tunnel vision, blaming H-1B workers and hardly looking further.
        FIY: people from my country who immigrate through a marriage, or because they won in the lottery, have usually NO problem finding a good job here rather quickly. Often that job is in IT/high tech/STEM.

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        • Unfortunately, you don’t know that no American was available for the job. In many cases, the employer is anxious to get a foreign worker, for reasons I’ve explained many times.

          Unless you husband was hired before 1991, H-1B (formerly H-1) did NOT require the employer to prove that no American was available.

          As to my vision, its principle “defect” is seeing too many American victims of the H-1B program.

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          • I wrote it had to be proven that he was THE man needed for the job in question. I did not mention the ‘no USer available’ requirement. That is part of the Green Card procedure.

            The job was advertised extensively for over 1 year – the co. had been looking for almost 2 years to fill the position. The co. originally did NOT want an H-1B’er because of the hassle involved.
            Furthermore my husband did not respond to the job offer at first, so the job was advertised for 6 more months.

            In the mid 90ies there were less software/high tech workers available, and there were also more jobs in general as the economy was improving in the mid-90ies. (As I said, I was offered a job every other week – in many areas.)

            And yes I KNOW that my husband is very, very good at what he does.

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          • I don’t know your husband, so I’ve been careful not to say specifically that an American could have been found for that job. What I have been doing instead is talk about how the system works. I’ve been writing about this subject since 1993, and have been observing it since 1980. I know a lot of people in the industry, all over the nation, and as I mentioned recently, happen to be in a situation in which I visit some industry firm at least once a month. Based on that experience, and statistical data, I find that in the vast majority of cases an American could have been found for the job, and that most employers DON’T WANT to find one. Again, many WANT a foreign worker in the job.

            There was never a software labor shortage, including during the Dot Com Boom, and quite the opposite in the early to mid 90s.

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    • @ollieallears July 22, 2015 at 7:59 pm: “Prohibiting people to reach their potential is what totalitarian regimes do.”

      Your claim is misleading in 2 ways. Firstly, non-totalitarian regimes regularly “prohibit people to reach their potential.” E.g., I suspect Bernie Madoff could have “earned” much more if the merely plutocratic US regime hadn’t prevented him from maximizing his “potential.” Secondly, democratic regimes *do not* have responsibilities to enable non-citizens to “reach their full potential”!

      As fellow members of one planet, we have responsibilities to preserve the quantity and quality of its carrying capacity for each other, for fellow species, and for future generations. Beyond that, citizens of one any nation may *choose* to help the citizens of another, and citizens of one nation *should* choose not to harm citizens of another (ceteris paribus). But citizens of the US have no *responsibility* (ceteris paribus) to assist your fellow citizens, much less to assist you to become a citizen of the US.

      @ollieallears July 23, 2015 at 12:16 am: “[H-4s] are preferred by employers because they work harder and better.”

      When you have empirical evidence for that claim, do let us know. However, you seem to forget that, as a citizen of a democracy, I care about what’s good for (e.g.) my environment (in the many senses of that term–physical, cultural, political, among others), me, my friends, my neighbors, the majority of my fellow citizens. I really *do not care* what US bosses (a rather small minority of my fellow citizens) want, except to the extent that it affects one of the groups above. (And, in case you should be so foolish as to assert the contrary: empirically, at present, the interests of US bosses seem rather strongly opposed to the interests of the entities listed above.)

      @ollieallears July 23, 2015 at 12:16 am: “Many [H-4s] could have created employment here, if the U.S. had let them.”

      The question is not, can H-4s create employment? The question is, can H-4s create *more* employment than the current citizens who are already here? When you have empirical evidence for that claim, do let us know.

      Err, let me rephrase this: if you and your husband are so great, why don’t you help *your* fellow citizens? Does the term “brain drain” mean anything to you?

      Liked by 1 person

      • My standard question to them is this.
        If you can create jobs, why have you not created them in your country where your citizens so desparately need them.

        The answer, never given is that the wages in America pay 100,000 and the wages in their country pay 1,860 per month, whatever that is.

        It always can be tied back to dollars

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        • I must admit that when we came to the USA in 1994 my husbands income was just under $ 100,000 – but it quickly got over that amount and rose steadily in the years after. How is this relevant ?

          $ 1,860 is about what one person who is on welfare gets every month in my country.
          Again, I fail to see what the relevance of this fact is to the discussion here ?

          When we still lived and worked in our home country we both helped create employment and wealth. Here only my husband was allowed to do this. Again, please explain relevance ?

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      • Your Madoff example is ridiculous. And as I have no desire to become a citizen of the USA, I do not understand your argument about ‘no responsibility to assist me’ with that.

        I know that US employers often prefer to hire immigrants from my country. They are able to secure jobs after immigrating here – based on family reunion or in case they win the lottery – rather quickly. Good jobs, for good wages, in a wide range of professions. So I will not back down on that comment.

        Our ‘fellow-citizens’ do not need ‘helping’ but how nice of you to worry about them. I appreciate it !
        But we originate from one the wealthiest countries in the world – where the wealth is better distributed than in the U.S. bytheway – and it has a well-educated work-force.
        Despite being small, my country continues to play its role in furthering science and technology.
        When it comes to brain drain, our country is – and has been through the ages – favored by many well-educated foreigners as a place to live and to work.
        Also, we have special work permits for ‘knowledge immigrants’, allowing their wives to work too !

        If the US had let H-4’s create employment it would have been on top of employment created by US citizens – and legal temporary and permanent immigrants (groups you conveniently overlooked). As we were not allowed to do this, it is a cheap shot to ask me ‘to prove it’.

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        • [hoping WP handles this citation format correctly]

          @ollieallears July 22, 2015 at 7:59 pm
          >>>> Prohibiting people to reach their potential is what totalitarian regimes do.

          tlroche July 23, 2015 at 1:57 am
          >> Your claim is misleading in 2 ways.
          >> Firstly, non-totalitarian regimes regularly “prohibit people to reach their potential.”
          >> E.g., I suspect Bernie Madoff could have “earned” much more if
          >> the merely plutocratic US regime hadn’t prevented him from maximizing his “potential.”
          >> Secondly, democratic regimes *do not* have responsibilities to enable non-citizens
          >> to “reach their full potential”!

          ollieallears July 30, 2015 at 12:57 am
          > Your Madoff example is ridiculous.

          No more ridiculous than your previously-challenged, empirically-unsubstantiated claim that

          ollieallears July 23, 2015 at 12:16 am
          >>> [H-4s] are preferred by employers because they work harder and better.

          or your newer claim (previously rebutted by Norm) that

          > If the US had let H-4’s create employment it would have been on top of employment created by US citizens

          Hence I repeat:

          >> When you have empirical evidence for [those claims], do let us know.

          ollieallears July 30, 2015 at 12:57 am
          > as I have no desire to become a citizen of the USA, I do not understand your argument about ‘no responsibility to assist me’ with that.

          Then let me rephrase that. You seem quite clearly to want to claim that

          1. One or more US bosses, at some time, for some reason, wanted to hire you and your husband.

          2. Therefore, US citizens, as a polity, have either an obligation or a compelling interest to

          2.1. allow both you and your husband to “reach [your] potential” and work in the US.

          2.2. allow any US bosses who wish to hire you to satisfy their preference.

          Regarding claim 1:

          You seem to want to claim that any hiring preference by any US boss must be honored. But this is plainly false: both case law and common experience demonstrate that US bosses have regularly sought to discriminate illegally and immorally on the basis of age, ethnicity, gender, and sexual orientation, among other deniable preferences. Equally clearly, US citizens, as a polity, have legitimately chosen to deny such preferences by law. The mere fact that one or more US bosses wants to hire one or more persons does not constitute a prima facie case that said preference is rational, much less ethical.

          Regarding claim 2:

          Neither the desire of you to work here, nor the desire of any US boss to hire you, creates any obligation for or compelling interest in US citizens collectively or politically. In fact, US citizens as a polity have a reasonable, morally sound interest in compelling US bosses to hire only citizens and previously admitted guests absent compelling contrary interests (e.g., to admit and hire legitimate refugees at such times and places as carrying capacity allows). To reiterate:

          >> democratic regimes *do not* have responsibilities to enable non-citizens to “reach their full potential”!

          You further claim that you and your husband

          > originate from one the wealthiest countries in the world
          > – where the wealth is better distributed than in the U.S. bytheway –
          > and it has a well-educated work-force. Despite being small,
          > my country continues to play its role in furthering science and technology.
          > When it comes to brain drain, our country is – and has been through the ages –
          > favored by many well-educated foreigners as a place to live and to work.
          > Also, we have special work permits for ‘knowledge immigrants’, allowing their wives to work too !

          That *may* be true … though until you *identify* your allegedly-delightful nation of origin, one must remain uncommited to the factuality of your claims. But for the nonce I’ll take them “at face value,” and hope you enjoy staying and working *there* 🙂

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  4. If we count ALL employment created by USers who were allowed to do this, and H-4’s are allowed to create some more employment, it is ‘on top of’.
    I am not a mathematician – but I know that if you have a barrel of apples and somebody gives you a bag with some more apples, these go ‘on top of’.

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