Dream (not DREAM) Act

Senators Cruz and Sessions have introduced a new H-1B reform bill, and lo and behold, it really would bring genuine reform. This bill is even better than the Nelson-Sessions bill that came out last week. In the words of an old, old song, “A drunkard’s dream, if I ever did see one.” 🙂 This is indeed a nearly ideal piece of legislation for those of us who have been critical of H-1B and other tech worker programs for years.

Of course, for that very reason, the bill may not have any chance of even reaching committee, let alone being enacted. And as I pointed out regarding the Nelson-Sessions bill, if “staple a green card” legislation were to pass (automatic green cards awarded to STEM foreign students at U.S. universities), all bets are off; the bill applies almost entirely to H-1B, which would become largely irrelevant under staple-a-green.

Here are what I consider the major features (I won’t list the Infosyses-specific provisions, e.g. anti-benching):

• $110,000 salary floor: Actually, the required pay would be the higher of $110K and “the annual wage that was paid to the United States citizen or lawful permanent resident employee who did identical or similar work during the 2 years before…”
• Goodbye, OPT: The Optional Practical Training program, added years ago by executive fiat to the F-1 student visa program, is an abomination, key to the hiring of foreign students instead of Americans. This provision disbands the program, and says if such a program is to exist, it must be properly implemented, i.e. enacted by the legislative branch.
• Anti-layoff provision: The language here could be a little tighter, but basically it would ban hiring of H-1Bs in time proximity of a layoff for workers in the same occupation.
• H-1Bs must have a PhD or 10+ years of work experience: The tech industry has always claimed it hires H-1Bs because not enough Americans pursue doctoral degrees. This is egregiously misleading — most of the H-1B they hire don’t have PhDs — but this provision calls the industry on that claim. Ditto for the industry claim that it hires people who are world leaders in their field — fresh out of school? And paid at Level I or II on the 4-level scale?
• Recruit Americans first:  Other than for the H-1B dependent category of employers, H-1B has no such requirement. Employer-sponsored green cards do have such a provision, but it is easily circumvented. Nevertheless, in combination with the OPT disbandment and this bill’s provisions for public posting of jobs, more complaint rights and so on, this is worthwhile.
• Whistleblower freedom: If an employee reports abuse of H-1B, the employer cannot consider that to be a violation of the Nondisclosure Agreement the worker signed.

It’s odd that the first press reports I’ve seen on the bill, such as those in Computerworld, Breitbart and CIS, don’t mention the most draconian provision of all, requiring a PhD or 10+ years of work experience. This will be the first one the industry will shoot down, citing examples of “brilliant” foreign workers who don’t have a PhD.

Some have wondered whether that $110K salary floor is high enough in high-cost areas like Silicon Valley, and the answer is mostly yes, I believe. I’ve stressed over the years that a core ingredient of H-1B is age; younger workers are cheaper, so employers hire young foreign workers instead of older (35+) Americans, with new graduates being the main group of interest to employers.

The majority of new graduates in computer science get nowhere near that $110K figure, so this provision would quash most of the abuse. Even Stanford grads, who I found in 2010 were getting offers 37% above graduates of “ordinary” schools, are averaging “only” $90K.

That figure is presumably at the Bachelor’s level. Carnegie-Mellon University, another very top CS program (Rank 2 in the U.S. by some surveys), reports a mean of $104,000 for new Master’s degree grads in Silicon Valley; again, the figures for most schools will be well below those for CMU.

Note that the bill actually requires that the H-1B be paid the higher of $110K and the American worker who last held the position filled by the H-1B. This is very poor phrasing, nonsense really. It clearly is aimed at the “Infosyses” setting in which Americans were directly replaced by H-1Bs.

So, though the bill would be “safer” with a higher floor than $110K, this figure would do a lot of good. There would still be many foreign workers hired in place of qualified Americans, but the number of such instances would be greatly diminished.

Note carefully that these figures are for CS. For most fields, such as statistics/data science (a very rapidly increasing field for H-1Bs) and non-CS branches of engineering,  that $110K floor would stem almost all of the abuse.

The bill is not perfect, of course. For example, consider the second core reason why employers love to hire H-1Bs: If they sponsor the worker for a green card, the worker is trapped, for fear of having to start the very lengthy green card process all over again with another employer. As I’ve explained before, this is hugely important to employers, even more than saving on salary. The bill does not address this problem, even though it does ban employers from penalizing foreign workers who leave for another employer.

As another example of what the bill is lacking, the bill enables American worker to file a complaint if they are replaced by H-1Bs, but NOT if an H-1B is hired instead of them.

Both of these shortcomings reflect an obsession with the Infosyses. But that is to be forgiven, as the bill does plenty to stem abuse by the Intels, and those firms will howl.