Lots of comment in blogs and e-mail today about Trump’s seemingly reversing himself on the H-1B issue in last night’s Republican presidential primary debate. But he didn’t really reverse himself, because he had already done so back in August. After posting the best platform on H-1B I’d ever seen by a major presidential candidate, Trump backpedaled the very next day, saying that he hadn’t been referring to the H-1Bs hired from among foreign students at U.S. universities. It is this group of H-1Bs that are hired by the Intels and Googles, which Trump was alluding to last night in statements such as “I am all in favor of keeping these talented people here so they can go to work in Silicon Valley.”
I stated at the time that Trump’s sudden reversal then was apparently due to the fact that “Someone got to him.” Given that last night Trump referred to Mark Zuckerberg, who has been outspoken in support of liberalized policies on H-1B and immigration in general (and of whom Trump had been critical), as “Mark,” we see that the one who “got to him” may have in fact been “Mark.”
I certainly don’t mean to defend Trump here, but it’s hard for me to understand why so many of my readers have been contacting me about his supposed “reversal” last night.
Rubio, on the other hand, is perceived has having changed course in the other direction in the debate, towards more caution concerning H-1B, and again that perception is probably sadly naive. Like most politicians (though unlike Trump), any statement Rubio makes on a major issue is the result of deliberate calculation, and on the subject of immigration, Rubio’s calculations are made with the advice of a top expert — prominent immigration attorney Enrique Gonzalez. H-1B law is byzantine, and it is easy to come up with reforms that are (by design) just as loophole-laden as the present H-1B/green card statutes, but look good to the public.
First, Rubio stated last night that employers found guilty of violating H-1B law should be permanently banned from the program. This is a favorite ruse of the industry PR people, obfuscating the issue by implying that the problem of H-1B abuse is mainly one of lack of enforcement of the law — rather than the gaping loopholes in the law itself. He also obfuscates the discussion by claiming a need for training, implying that we have a tech labor shortage and thus further implying a need for more H-1Bs.
Rubio proposed that employers be required to advertise a job for 180 days before hiring an H-1B to fill the position. Sounds good, but the industry would never allow enactment of such a provision, and there are lots of ways that Rubio could support “reform” while still keeping industry happy. For instance, some years ago there was a provision in which employers in certain sectors with (alleged) labor shortages, notably tech, would be preapproved for hiring foreign workers. This provision could be revived, so that while a180-day rule would be on the books, it would include a huge exception of this type. Other past proposals that could be revived would give automatic approval to employers that had a record of hiring foreign workers without violating the laws; this would dovetail nicely with Rubio’s vows last night to come down harshly on violators, while doing nothing about the current loopholes that allow everyone to abuse the programs scot free.
It’s interesting to see H-1B brought up at all in a presidential debate, a first to my knowledge. This is undoubtedly due to the negative publicity generated by the cases at Disney and SCE, in which Americans were replaced by H-1Bs. But I have warned that such publicity has its downside, which is to draw attention away from the fact that abuse of these programs pervades the entire industry. In particular, I’ve noted that the notion that the H-1Bs hired as foreign students are the “good” H-1Bs will lead to end-runs around the H-1B cap. We are seeing that in the DHS proposal to expand the OPT program, and more perniciously, congressional proposals to give fast-track green cards to foreign students.
This latter point alone would be enough for Rubio to make fingers-crossed-behind-the-back promises to “reform” H-1B — while intending to develop a parallel program that is just as harmful to U.S. citizens and permanent residents.
In some ways, I actually am admirer of Rubio, but to borrow my favorite quote from Senator Grassley regarding H-1B, “Nobody should be fooled.” Rubio’s seeming new sympathy for American programmers and engineers should keep in mind this report of a statement of a Rubio staffer in a New Yorker article
“‘There are American workers who, for lack of a better term, can’t cut it,’ a Rubio aide told me. ‘There shouldn’t be a presumption that every American worker is a star performer. There are people who just can’t get it, can’t do it, don’t want to do it. And so you can’t obviously discuss that publicly.’”
I myself have stated often how important it is to hire GOOD programmers, people who are really sharp. But that comment above is way out of line. I know plenty of very high-quality Americans, especially those over 35, who face real challenges in the labor market, and lose jobs to H-1Bs. Even in the Disney case, it has been reported that the U.S. workers had gotten stellar performance reviews not long before being laid off. If that staffer’s view reflects that of Rubio, his comments about adding worker protections are worthless.