In reading the D/G bill for the umpteenth time late last night, I realized that I had been unwittingly skipping over Section 101(d)(2), as it was so short. (A Hill staffer also contacted me about this today.) I had earlier stated that the bill contains no provision requiring employers to give hiring priority to American workers, but in fact this section does so. The title of the section is even “Recruitment,” so it’s doubly odd that I missed it. My bad. Unfortunately, though, it really doesn’t make any difference.
As many of you know, in existing law there are two places in which employers must try to fill a position with a qualified American:
- “H-1B-dependent” employers, defined as those with 15% or more of their workforce being H-1Bs must show they tried to recruit Americans for the job before filling it with an H-1B.
- Employers sponsoring a foreign worker must also show they tried to hire an American first.
And as many of you also know, both of these requirements have been dismal failures:
- The H-1B-dependent employers, such as Infosys and TCS, are staffed almost entirely by H-1Bs (and L-1s).
- The infamous “TubeGate” videos show lawyers in a prominent immigration law firm, Cohen and Grigsby, explaining exactly how to circumvent the recruitment requirement. The videos, ironically shot by the firm as a promotional vehicle, were quite explicit in the goal. Here is an excerpt:
And our goal is clearly, not to find a qualified and interested U.S. worker. And you know in a sense that sounds funny, but it’s what we’re trying to do here. We are complying with the law fully, but ah, our objective is to get this person a green card, and get through the labor certification process. So certainly we are not going to try to find a place [at which to advertise the job] where the applicants are the most numerous. We’re going to try to find a place where we can comply with the law, and hoping, and likely, not to find qualified and interested worker applicants.
I’ve shown numerous examples of this in job ads, often posted by Silicon Valley firms, over the years.
Employers who favor aliens have an arsenal of legal
means to reject all U.S. workers who apply
The employer may say, for instance, that not only is the Python programming language needed for the job, but it must be Python on a Mac, and moreover, it must be Python on a Mac with applications to the medical industry, and not only that, but it must be Python on a Mac with applications to the medical industry in Los Angeles County, and not only that but…well, you get the idea.
The language of the bill says that the employer must offer the job if the American is at least as well-qualified as the prospective H-1B hire. But as you can see, the word qualified can be manipulated every which way.
For example, I’ve mentioned the strong connection of H-1B and age discrimination. I’ve often shown examples here in which employers such as Intel have jobs earmarked New College Graduate and Recent College Graduate or similar language. That immediately makes the older American applicant unqualified. So much for giving priority to qualified American applicants! And remember, the D/G bill gives priority to foreign students in the awarding of H-1B visas, which I consider the most harmful part of the bill.
In my first post about D/G, I wrote
…as the Cohen and Grigsby videos show, the current green card process, which (unlike H-1B) already requires recruitment of American workers, is easily circumvented. This will get even worse if the current White House proposal to expand OPT is approved, as the foreign students will acquire experience in the job supposedly posted on the Internet as open to all, thus rendering the foreign students “more qualified” than the Americans. (Alas, the bill does nothing about OPT.)
These comments also apply to the bill’s recruitment requirement. Employers will hire a foreign student on OPT, and the next year, after she has special experience in the job, apply for an H-1B visa for her. She will then be “more qualified” than American applicants for the job, by virtue of the experience gained, and so employers can reject the Americans out of hand.
I endorsed the original D/G bill in 2007, but stated clearly that I did so mainly because it proposed a very powerful reform of the prevailing wage requirement. That bill also had a U.S. worker recruitment provision, but I explained that it would be easily circumvented:
Though non-H-1B-dependent employers have not been subject to the “good faith recruitment” requirement before, the employer-sponsored green cards have always had such a requirement. Typically employers circumvent that by requiring so many special skills that the only one in the world who would qualify is the foreign national they want to hire.
Thus the best I could say for that provision was that it would have “some value” (just as I said the Internet posting requirement in the current bill would be “somewhat helpful”). The current D/G bill also has such a provision. But as I pointed out recently, the prevailing wage reform in 2007 was the first one to be emasculated in the subsequent political negotiations, and the same is sure to occur with the current bill.
Sorry for my error, but nothing has changed about my negative assessment of the current bill.