I urge all readers to take a careful look — or five or ten careful looks — at John Miano’s latest blog entry, which calls upon people of the press to stop being so naive about congressional intent regarding the H-1B work visa. (He could easily have written a similar post about the related topic of employer-sponsored green cards.)
John, in case you are not aware of his work, is in a unique position to ferret out the truth about H-1B and Congress, as he is a former programmer turned lawyer. He has a book on H-1B coming out with Michele Malkin. He is the attorney involved in suing the government for its end run around Congress in extending OPT, a program that allows foreign students to work in the U.S. for a period after graduation, which is in various senses even worse than H-1B.
I often hear from programmers and engineers who are sure that employers are violating the law by hiring H-1Bs instead of Americans. I find that these people are so trusting of Congress that they take it for granted that Congress wouldn’t allow such a thing. Well, Congress has indeed allowed it, consciously so, as John’s blog post shows so well. In fact, Congress has deliberately stacked the deck in favor of employers.
Note that John details how destructive the current four-tiered system for H-1B wage floors is. This is a topic I mention frequently, as a core mechanism enabling firms to employ H-1Bs instead of Americans. (Note that I’m including in my phrasing here both the situation in which employers replace Americans by H-1Bs and the setting in which they hire H-1Bs instead of Americans; both are equally harmful, but sadly only the former case is being discussed these days.) As I’ve explained before, the reason H-1Bs are so cheap for Disney and SCE is this four-tier system, which corresponds roughly to age. In essence, Disney and SCE replaced older Americans by younger H-1Bs, who are cheap because of their lower level of experience.
The four-tier system replaced an earlier two-tier one in 2004, and of course the new lowest tier is much lower than the old lowest tier. In other words, Congress took positive action to make H-1Bs even cheaper than before. The immigration lawyers had been pushing for this change. And if my memory is correct, IEEE-USA, which claims to “represent” 250,000 American engineers, lobbied Congress in favor of the change.
Getting back to John’s broader point, the press is not the only sector that needs to jettison its naivete about congressional intent. Those who seek to make the law fairer to U.S. workers need to understand this too. Beware of seemingly-plausible solutions coming from members of Congress; they are likely going to be unhelpful, if not downright worsening the problems.
In particular, as I have been warning, all the recent commotion about employers using IT services firms to replace American workers by H-1Bs will likely result in Congress mildly punishing the IT services firms (VERY mildly, if the examples John cites are any indication), while tripling the cap on general H-1B visas and setting an infinite cap on one particular type of H-1B visa.