Errors and Misquotes

Ian Smith of the Immigration Reform Law Institute, which has worked hard to fix the problems of policy related to foreign tech workers, has an article on the Durbin/Grassley (D/G) bill in the November 19 edition of The Hill. While I highly appreciate his work, I do wish to point out that he has misquoted me, and note some errors.

Ian writes,

Numerous provisions of the bill would offer big changes to the status quo. Sections 101(b) and 121 would require H-1B-using companies to make a good faith effort to hire American professionals first. Contrary to popular belief, this has never been a requirement under the program. It does currently apply to H-1B-using companies seeking to obtain green cards for their existing H-1B employees, however, this is a smaller part of the overall problem. As H-1B expert, Norm Matloff has written, this change would “bring an absolute sea change to the business of importing foreign programmers and engineers.”

As I understand the bill — I do know the technical aspects of the statutes pretty well, and I’ve scrutinized the text of D/G, but it’s always possible I’m overlooking something — the bill does NOT require employers to give hiring priority to qualified U.S. citizne/permanent resident applicants for a job…. [Corrected, Nov. 21: Technically, there is such a provision in the bill, though not effective.]

Next, that quote of me above is egregiously incorrect. If you follow the link Ian has provided, you’ll see that my statement on the Pascrell bill, introduced at the same I wrote those words about a “sea change” referred to Pascrell’s change in the prevailing wage requirement, NOT a U.S. worker recruitment requirement.

Ian also writes:

Companies wishing to import foreign professionals would now be required to list available positions on a Department of Labor website for 30 days before submitting a visa petition. Matloff guesses this alone would shrink H-1B usage by “maybe 70-80 percent.” Such a requirement would finally confirm whether or not a “skills shortage” really does exist.

Again, egregiously incorrect; again, I was plainly referring to the revised prevailing wage requirement.

Ian does correctly quote me that H-1B is used by employers to avoid hiring older (age 35+) workers, and that the revised prevailing wage requirement would be very helpful in that regard.

Then Ian states,

Section 101(d), meanwhile, will restrict employers from hiring H-1Bs within 180 days of a layoff of American workers (expanded from the old 90-day requirement). This would be too little too late from those tens of thousands who’ve been laid off this year from Disney, Intel and Cisco, but it’s nonetheless a welcome improvement.

Not true! D/G would only disallow replacement of Americans by H-1Bs during that period.

Ian does say, correctly, that “Pressure to dull the better parts of the bill and fold in H-1B cap increases will be fierce.” I’ve made the same point myself, noting that the prevailing wage reform provision was the first one to die in previous incarnations of D/G.

But let me add to that:  I’ve explained many times why focus on the “Infosyses” — the rent-a-programmer firms — has badly distorted the conversation on H-1B. The D/G bill epitomizes that problem, by punishing the Infosyses while rewarding the Intels. As long as that is the ethos among the drafters of D/G, then the Intels will be allowed to “dull” the bill at will. Indeed, the bill already contains some Waiver provisions that seem to have been put in there by the Intels.

In addition to Ian’s overly-positive (from my viewpoint) praise of the D/G bill, another analyst for an immigration-reform group recently posted to my blog a comment praising the bill. Since this person is one of my top favorites in DC, I was quite taken aback by his comment.

I wonder if that is common among the immigration-reform crowd. It would be natural for them to praise D/G, as they would feel “Wow, we finally are getting traction on the Hill on H-1B.” But I would say they’ve been too hasty to embrace the bill.

But wouldn’t D/G be a step in right direction, you ask? I must repeat: The ONLY criterion for whether a reform bill is worth pursuing is whether it would result in more Americans being hired/retained. As I showed in my last post, D/G fails that test.





19 thoughts on “Errors and Misquotes

  1. > [the immigration-reform crowd has] been too hasty to embrace the bill. [They ask,] wouldn’t D/G be a step in [the] right direction

    I don’t know “the immigration-reform crowd,” but it is certainly my experience that “nice liberals” are almost desperate to compromise, about almost everything. The ones I know personally seem to find conflict distasteful, almost immoral. I observe this pattern repeatedly: they start negotiations with a fair proposal, which the rightwing deceitfully (and contemptously) bargains down to nothing, as the liberals keep chasing the rightwinger’s increasingly hard line. Viz. the ACA, in which Obama’s team started negotiations by taking single-payer “off the table.”

    A similar behavioral description applies to crypto-progressives, but in their case, their motivation is not to reach a progressive agreement, but merely to get through the “revolving door.” Viz. the numerous Obamans who {leave from, return to} Goldman Sachs, Covington & Burling, et al. Media liberals are almost as bad, though their desire to leave the precariat for more stable/profitable thinktanks, academia, etc, is more morally defensible.


    • What you describe is my experience with both parties in Congress (when they actually do pass a bill). Much of the time, this results in a deliberately cosmetic bill. But in this case, they simply don’t understand, and are letting the industry walk all over them.


    • As a minor figure in the anti-H1B movement, I would like to assure you that I am not a “nice liberal”.

      I really want thousands of people to go to prison for bribery and immigration fraud, and
      I do not see any reason to show them any mercy.

      We intend to show them the same amount of mercy that they showed to us: None!

      Any questions?


    17 Section 212(n)(1) of the Immigration and Nationality
    18 Act (8 U.S.C. 1182(n)(1)), as amended by section 101,
    19 is further amended by inserting after subparagraph (G)(ii)
    20 the following:
    21 ‘‘(H)(i) The employer, or a person or entity act
    22 ing on the employer’s behalf, has not advertised any
    23 available position specified in the application in an
    24 advertisement that states or indicates that—
    1 ‘‘(I) such position is only available to an
    2 individual who is or will be an H–1B non
    3 immigrant; or
    4 ‘‘(II) an individual who is or will be an H–
    5 1B nonimmigrant shall receive priority or a
    6 preference in the hiring process for such posi
    7 tion.
    8 ‘‘(ii) The employer has not primarily recruited
    9 individuals who are or who will be H–1B non
    10 immigrants to fill such position.

    This must be the text they intend to give Americans preference – but it does not! It only prevents H-1B preference, but it leaves the field “even”. And it is hopelessly vague in any case.

    (notice the “has NOT advertised”, or it makes no sense at all!)


    • Right.

      A charitable explanation would be that the author was so obsessed with the Infosyses that he/she was overly influenced by stories of “H-1B only” job ads by the Infosyses. A less charitable explanation would be that this language is deliberately deceptive.


        • Legal in the sense that it would not be clear as to what law they are breaking, and lack of political will to bring charges.

          Just look at all the tech jobs that specify New or Recent College Graduate. I asked an employment law specialist how this could be legal, and she said she didn’t see how it could be. But it’s never been challenged.

          Anyway, this bill would have trouble even in that sense. While it’s clear that many companies ARE giving preference to H-1Bs, proving it would be very difficult.


          • Back in the day, the ONLY way to join IBM was as a new college graduate, and this was largely true of most large businesses, you worked your way up through the ranks over twenty or forty years, and mostly stayed there even if you didn’t. And television came in over rabbit ears, and phones were wired to the wall. So I wonder if that preference should be illegal even now.

            (oh, btw, joining IBM was also a good thing back then …)

            It never quite cleared my consciousness before that an open, stated *preference* for H-1B might be legal, but on consideration I guess it is, it does not explicitly cross any EEOC tripwires. Given the fact, I wonder that it’s not much more common!


  3. I was not even aware of the B-1 and L-1B issues. I did not think things could be worse than I knew – but they are. No wonder I find available wages reduced by another 30% this year.


  4. One thing I found interesting is that comment about the dol maintaining a job listing area where they must post all jobs for x days before a H-1B could be imported to displace/replace us.

    If we had that, being programmers, we could work the hell out of that database if we were united rather than divided.

    Imagine company x saying that they can’t find somebody and all of a sudden we pull up a list of 500,000 of them that are unemployed and desperately needing work.

    That said, the key and one I’m always harping on is we need to pool our funds and do the steps that I describe in this article.

    An older gentleman that I know and respect has a saying that goes like this.

    “Nothing can be hurt by trying”


  5. Ian Smith for reasons best known to him seems to be very good at distorting facts/truths. Don’t know why they cannot put the truth the way it is. No interpretations, No sugar coating, No distortions – As it.

    As recently as few days ago, one of his articles on the hill ( regarding a leaked memo about Admin proposing EAD/AP rule for approved 140 “Immigrant Petitioner”s, he stretches it so far as to say the Admin in trying to get EADs for DAPA/DACAs/illegals by circumventing the court ruling.

    The ‘alleged’ memo clearly speaks of 140 (and legals) and options surrounding it (what if a legal person goes out of status etc).

    And IRLI is not the run-of-the-mill MSM or some reporter who does not know what immigration is. Their focus is very much on immigration (Much respected Miano is part of it).

    I sometimes wonder if it is to mislead the average readers by mixing up legals with illegals just to everyone is riled up and oppose everything. This probably would be to feed other vested interest (lobby) groups that are rightfully reasoning against illegals (DACA/DAPA etc).

    There is certainly a way to go about presenting facts – H-1/L-1 abuse, age/wage issues with legal immigration (if thats the focus of the article) or DACA/DAPA related issues with illegals (if thats the focus) and they *must* be highlighted…But mixing up everything leads to people going against any and every reform which results in – a status quo, and is beneficial to … ?

    So much that Grassley questioned DHS about the provisions in that leaked memo and how admin is circumventing court ruling and helping out illegals, the basis of which certainly is Ian Smith’s article.


    • @Despicable Congress: ‘mixing up [H-1/L-1 abuse, age/wage issues, legal and illegal immigration, and DACA/DAPA] leads to people going against any and every reform which results in – a status quo, and is beneficial to … ?’

      To a first approximation, beneficial to “bosses” (shorthand for “renters of labor”) and “landlords” (shorthand for “rentees of housing”).

      Both bosses and landlords want their counterparties (i.e., the people on the other side of their transactions–here, workers and tenants) to be as exploitable as possible. This means maximally excluding regulation and litigation from those markets (labor and housing), and generally excluding counterparties from politics but not markets. That in turn is most easily done when the tenants/workers are illegal (or “undocumented,” or your-euphemism-here), but when there is no significant cost (e.g., serious fines or prison terms) for renting their labor or renting housing to them. The same end can be accomplished (albeit with more effort) by creating special legal but rights-deprived classes (e.g., indentured H-1Bs). Both are status quo in the US in 2015.

      Toward that end, the US 1%’s current game is to play off, as long as possible, xenophobes against liberals. The xenophobes want borders closed and illegals expelled. This would have the positive result (for the US 99%) of reducing labor-market supply and housing-market demand, particularly reducing the most exploitable parts of those markets. The 1% absolutely opposes that, though they need to obscure their opposition to maintain their long-standing and useful (though increasingly troublesome) alliance with “red-state” whites. Liberals want open borders (which *would* have the advantage of reducing exploitability by making everyone legal), but that’s a “love which dare not speak its name”: even liberals realize open-borders would massively increase immigration and associated negative externalities. (E.g., for liberals, landuse problems. My impression is, most liberals don’t see overloading low-end housing and labor markets as net negative–they certainly don’t wanna talk about it–but that’s a separate topic too large to address here.) More significantly, most liberals are conflict-averse compromise-worshippers, which enables the 1% to offer the following as a “bipartisan compromise” (so beloved by the US corporate-funded media) between open and closed borders:

      1. Don’t deport current illegals, but don’t make them “really legal” either. Create a new residency/work-eligibility status that is long-lasting and maximally-exploitable (though nominally-legal). I’m guessing this will have striking parallels to both the “bracero” programs of the past and to today’s STEM foreign-student and -worker programs.

      2. Leave “the door open” to future, truly-illegal immigration, in the same way that the Immigration Reform and Control Act of 1986 led to barely-controlled illegal immigration in the 1990s.

      3. Absolutely don’t do *anything* tangible to impose real costs on bosses and landlords who transact with completely- and semi-illegal counterparties.

      4. Expand US labor supply and housing demand as much as feasible.

      Illustrating the parallel political dynamics of STEM is left as an exercise for the reader 🙂


      • Succintly put, @Tom Roche.

        What pains me is the fact that those that claim to be pro-american-workers (Ian Smith/John Miano’s IRLI) are themselves resorting to these ambiguous/confusing/misleading articles.

        On one hand they are supposedly fighting court cases against H-4 EAD/OPT and selling books(‘Sold Out’) to highlight the issue, but simultaneously are watering down/misleading the same folks with such articles.

        Instances like these tend to influence folks like Sessions/Grassley that are very vocal and vociferous when it comes to american worker rights and they shoot off half-thought questions to DHS. Ian Smith’s article that I refer to is a classic example of that. When the allegedly leaked memo was all about legal ‘non-immigrant’ workers, Grassley focuses his attention to DACA/DAPA in his letter to DHS. Sadly worker rights has become a political ballgame even for Sessions/Grassley.


        • I had respect for these pro-american-worker groups. Looks like it’s time to pick and choose individuals from those orgs who are trustworthy while other flag bearers can do the PR and muddy the waters by posting their random thoughts to rile up the already aggrieved american worker.


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