President Obama announced a couple of months ago that he would postpone taking executive action on immigration — in essence, legislation by fiat — until after the election, apparently fearing his actions would move the electorate in some way. Concerning H-1B and related issues, there has been much speculation as to what actions Obama would take, and whether he has the authority to take them.
A possible hint as to what Obama might do regarding foreign tech workers may lie in a letter to the editor published in the October 21 edition of the Wall Street Journal by Bruce Morrison, a former congressperson who was involved in crafting the Immigration Act of 1990. That legislation created the H-1B program (replacing the old H-1), and expanded employer-sponsored green card programs. Morrison wrote
President Obama can move the lines for green cards much faster. How? In 1990 Congress authorized the president, if he chose, to stop counting dependents of the principal immigrant n both the family and employment-based legal immigration categories. I know because I was part of the team that wrote the statutory language when I was in Congress.
The Wall Street Journal op-ed by Michael Malone, to which Morrison was responding, itself raises some interesting questions, which I will address shortly. But first, let’s look at Morrison’s claim.
Since I have high respect for certain people close to Morrison who read this blog, I do not relish portraying him in a negative light. But the fact remains that Morrison is not the innocent former public servant making a helpful point, but rather a highly-paid lobbyist for an organization whose leaders have a vested interest in the green card issue. I’m told he or his firm has made over $500,000 through lobbying on this and related issues; I’ve not done a tabulation myself, but interested readers can do so at the Lobbying Disclosure Act Database. Morrison and the organization, IEEE-USA, have been pushing Congress to enact legislation to automatically award green cards to foreign STEM students at US universities, which I have explained is harmful to the rank-and-file members of IEEE-USA, who are not even aware of the lobbying efforts. Morrison mentions none of this in his letter. All’s fair in love, war and lobbying, I guess.
Given all that, I certainly look at Morrison’s WSJ letter with some cynicism. He uses the term statutory language, but the statute appears to have no provision for excluding the dependents. (See a blog post by John Miano at CIS for details.) Yet presumably the well-connected Morrison has the White House’s ear regarding his dependents claim, so what does he have in mind? Is there some internal House document from that era that indicated an intent to give presidents some leeway on this issue? Granted, the courts sometimes give weight to legislative intent, but when privately expressed intent is starkly counter to the actual wording of a statute, executive action based on a claimed intent would seem to be on shaky legal grounds.
But what about the larger question, the possible merit of Morrison’s proposal? As a strong believer in process, especially regarding the Constitution, I basically dislike the proposal; the President is supposed to implement the laws, not make them.
But on the other hand, it does address an issue I have strongly emphasized in my writings on foreign tech workers: One of the major attractions to employers in hiring the foreign workers is that that H-1Bs who are being sponsored for green cards are de facto indentured servants, IMMOBILE. This makes a foreign applicant for a position much more attractive to an employer than a similarly-situated U.S. citizen or permanent resident.
On paper, the auto-green card proposals in Congress would appear to remedy this, by expediting the process of making the foreign workers free agents in the labor market. However, they would be YOUNG free agents, thus exacerbating the other major type of harm that foreign worker programs bring to Americans — age discrimination. I’ve thus strongly opposed such proposals. Excluding dependents from the caps would not directly have that effect, but since the H-1Bs are overwhelming young, the adverse impact would be similar.
Now to the Malone op-ed: Malone is the author of a major book on Intel’s founding, so he does know something about the industry, but his piece on H-1B and green cards is quite poorly-informed. His main source seems to be Vivek Wadhwa, but he seems not to have made any attempt to get the other side of the story. He cites the usual misleading points, which I won’t list or discuss here. Instead, the point worth mentioning is that Malone accuses the industry of the same thing I write so much about — the industry’s exploiting the foreign workers for their immobility. He claims that the industry always pushes Congress and the President for more H-1B work visas, rather than more green cards.
As I said, Malone is correct in claiming that the industry likes, indeed exploits, the long waits that many foreign workers have for green cards. But they have at least paid lip service to supporting reform in this regard, and in fact may actually support Morrison’s proposal. Here’s why:
- As mentioned, the industry uses the H-1B program as a means to avoid hiring older (age 35+) U.S. workers, who are more expensive, not only in wages but also in benefits. The H-1Bs who have been waiting for green cards for 5 years or so (for many, it’s close to 10) are starting to be problematic to employers, taking on exactly the characteristics the employers were hoping to avoid by hiring the young foreign workers. These H-1Bs have gotten some raises — smaller ones than Americans get, according to the NRC report, but still of some size — and they now are more likely to have families, which increases the cost of medical benefits. In short, they have largely outlived their usefulness.
- A number of those in the waiting line are in the very last stage of the process, under which the law does give the worker mobility in the labor market. Thus the employers’ hold on them is gone.
- The workers experiencing long waits are concentrated in the EB-3 green card category, the one for “ordinary” people, as opposed to EB-1 and EB-2, which are designated for those of outstanding ability. So, Morrison’s proposal would primarily affect workers whom the employers are not that keen on retaining anyway.
- Much as the employers love the foreign workers’ immobility, some are beginning to worry that this will become a disincentive against the foreign workers coming to the U.S. in the future. Having a mechanism with which to render workers immobile isn’t very useful if they don’t come here in the first place.
- Supporting Morrison’s proposal serves as a shield against charges against the industry like those leveled by Malone.
There actually are actions that President Obama could, and should, take, things that are squarely in the realm of regulation rather than legislation. For example, he could greatly tighten up the procedures for determining whether an employer seeking to sponsor a worker for a green card demonstrates that no qualified, willing American worker could be found to fill the job. He should have the Department of Labor pounce on every job ad that specifies new or recent graduates (read young), examples of which I’ve shown for companies like Intel and Facebook. He could direct that “hot” skill sets be taken into account in prevailing wage determination, for both H-1Bs and green card sponsorees. He could direct government agencies to use their purchasing power to pressure firms to give real priority to hiring American workers. And so on.
I’ve said this many times: If government were to take actions limiting the use of H-1B and employer-based green cards to legitimate cases, the H-1B cap would never come close to being filled, and green card waits would be short for all. Quotas simply would not be an issue.