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.
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.