Though the main attention on Obama’s speech on immigration last night will be on his plans for the unauthorized immigrants, he definitely included provisions regarding foreign tech workers, specifically regarding H-1B, employer-sponsored green cards and the F-1 foreign student visa. His proposals have something for the employers, something for the foreign workers, but nothing to help American workers. In this post, I’ll explain the proposed changes and their likely impact, and also discuss what executive action a labor-friendly president could have taken.
From my point of view, the President’s plan has three major elements:
- Granting work rights to spouses of H-1Bs.
- Further extending the Optional Practical Training (OPT) part of F-1. OPT gives foreign students the right to work for a period after graduation. For years, the period was 12 months, but George W. Bush used executive action to change that to 29 months, and there are reports that Obama may change this to 48.
- Allowing green card sponsors to switch employers much earlier in the green card process.
There are obvious adverse impacts here to American workers, by swelling the labor market, thus reducing job opportunities and wages for Americans. This is especially true in that the foreign workers are overwhelmingly young, thus exacerbating the rampant age discrimination that we already have in the tech world.
Some readers may be surprised to hear that I strongly support one of those proposals, but they shouldn’t be surprised at all. I’ve been stating for years (e.g. in my 2003 article in the University of Michigan Journal of Law Reform) that, for many tech employers the appeal of hiring foreign workers is to have not just cheap workers but even more important, immobile ones. As a result, employers often hire a foreign worker over an equally-qualified U.S. citizen or permanent resident. The third point in Obama’s proposal above would actually be beneficial to American workers, as it would make the foreign workers’ period of de facto indentured servitude much shorter, thus rendering the foreign workers less attractive to hire in the first place.
However, the key word in the last sentence is would. For the reasons I’ve given, employers will NOT like that provision, which by the way, the foreign tech worker organization Immigrant Voice is taking credit for. So, the employers may work behind the scenes to quash it. In doing so, they would have to speak carefully, as they don’t want to admit that they prefer hiring foreign workers for their indenturability. But the lobbyists are very good at spin, and they will likely say something like “Why would any employer pay $10,000 in legal fees for green card sponsorship if the worker can jump ship to another employer?” One mitigating factor is that the employers do want the potential foreign workers to find work in the U.S. attractive, and freedom of movement would help in that regard, but again, it’s vital to keep in mind that indentured servitude is hugely valuable to many employers. I don’t think they’ll go quietly on this one.
Now, what actions could Obama have taken to help the American worker? In a more positive tone, what could he still do now?
- He could roll back the OPT period to the original 12 months, instead of extending it.
- He could enforce the section of green card law (note: NOT H-1B law) that states that the Secretary of Labor must ascertain that employer-sponsored immigration does not adversely impact American workers. This could be applied to the definition of prevailing wage, the defining of jobs by employers to be entry-level (negatively affecting Americans over age 35), and so on.
- He could apply federal age discrimination laws to the foreign tech worker issue. I mentioned one example in the previous bullet, and here is another. While most H-1B employers are not required to give priority to American workers, those employers are still subject to age discrimination laws like anyone else. Since a large part of the wage savings accrued by hiring H-1Bs comes from their youth, enforcement of age discrimination laws could really reduce H-1B usage; they wouldn’t want to hire older foreign workers in most cases. Of course, those laws are complex and subtle, but much could be done with this.
- He could direct federal agencies to give contracting preference to those vendors who hire large percentages of American engineers and programmers (no, NOT American secretaries, janitors, accountants and marketers).
But all indications are that the Obama administration simply doesn’t care about American workers, so the above is just blue-skying.