DHS Strikes Again — But with Less Than Meets the Eye

There is yet another proposal by DHS to please employers, foreign workers and foreign students. See the Breitbart account, DHS’ “summary” and the actual proposal.

The proposal is yet another outrageous attempt of the Obama people (and before them, the Bush people) to take the law into their own hands, bypassing Congress and thus the Constitution. Though, contrary to the Breibart headline, the actual impact on American tech workers would be small (details later below), it’s quite amazing that the White House has the gall to make this proposal, in light of recent scandals.

I have one scandal in particular in mind, the one discovered by the local press at Wright State University. I discussed this in blog posts here, here and here, but a summary is as follows.

Basically, private industry is setting up shop near/on university campuses as an end-run around the H-1B cap. University workers are exempt from the cap, so the strategy is for the private company to contract out work to the university, who hires the H-1Bs, yet still with the private company playing the main role in supervising the work. As a bonus, the prevailing wage for the job is figured on academic levels, so the company attains salary savings too. The work is called “research,” and though there may indeed be university researchers who publish some papers on the work, it’s a mainly a great way for industry to save on labor costs.

Wright State was engaged in such activities, and though for the most part both Wright State and the private firm were likely in technical compliance with the law, it certainly made for bad press for the university, especially when it was found that some of the university administrators seemed to have overstepped their bounds. Two were fired.

This setup is surprisingly common. I mentioned in a previous post that for instance, that Intel has several such centers. And needless to say, this approach is highly popular with universities, as they get fat commissions (known as overhead) for the companies sponsoring the research. Just today a reader called my attention to this one at the University of Illinois. There the details are given for one of the arrangements for hiring students:

Indirect hire at an hourly rate through Research Park Internship Program: Under this program, the intern is a student that is regarded as an employee of the University and performs work or services for the company as an independent contractor without any employment relationship between the company and the student.  The University of Illinois is responsible for all human resources services and the student is on the University’s payroll.  The company pays an hourly wage to the student plus an overhead charge on all student wages to the University for administrative services.  The company retains ownership of the work product. Contact Megan Puzey in the UI Office of Corporate Relations at mpuzey@illinois.edu.

Did you catch that part about the company having ownership of the work product? And of course, UIUC here points out that the companies can definitely hire international students. Also, though this document was about hiring students, in the Wright State case full-time workers were being hired, and this is probably common.

Plug “university research park” into Google, and you’ll find lots of other examples of such cooperative entities.

The DHS proposal would simply tweak policy on these setups. Indeed, DHS said that they are merely codifying policy that they had been using informally. But it is BAD policy to begin with.

This is only one of many aspects of the new proposal, most of which clarify current DHS practice. One of the provisions having the most consequence to foreign workers would allow many who are currently waiting for a green card to “jump the gun” and enter the labor market essentially as a free agent, rather than waiting the years until their visa comes up. They only will get an Employment Authorization Document (EAD), and must still wait for the green card itself (and its role as a first step toward chain migration of others), but they are free to leave the employer who sponsored them for the green card.

The impact on Americans would be quite small, because these foreign workers are ALREADY working in the U.S. — for the employers who sponsored them. So, for those who view these workers as taking jobs that Americans could have filled, they are ALREADY doing so, and thus there would be no real net loss to the Americans. On the contrary, I’ve repeatedly emphasized that one big reason tech employers like hiring foreign workers is that the workers become immobile during the years the green card is pending. The DHS change would slightly reduce this attraction to employers (though again, only slightly).

All in all, the impact on American workers of the new DHS proposal would be minor. It pales in comparison with what DHS has been doing with OPT, which has been quite harmful. In fact, Satya Ganti, the foreign worker profiled in the press accounts of the Wright scandal, had already been working the U.S. for 29 months, under exactly the DHS OPT policy which was recently vacated by a court, pending fixes to be made by DHS. That case, currently hanging in the balance, will have far greater impact, one way or the other.

 

Advertisements

22 thoughts on “DHS Strikes Again — But with Less Than Meets the Eye

  1. >>> One of the provisions having the most consequence to foreign workers would allow many who are currently waiting for a green card to “jump the gun” and enter the labor market essentially as a free agent

    False.

    Whatever is being reported/alleged by Breitbart/WND/Sessions etc) is only confined to the Executive summary section of the proposed rule (promotions/job mobility etc) . The actual rule content (proposed changes to the actual regulation) addresses none of those ‘perks’.

    There is “no jumping the gun” or “going full monty” in the proposed text. In other words, no EADs are being rolled out, no portability/mobility/no promotions — essentially no respite from the indenture for foreign workers other than a status quo.

    The only case when some foreign worker can apply for a EAD is when

    1) He/she can show ‘compelling circumstances’
    2) The EAD is a 1-time deal and is valid for 1-year only (non-renewable)
    3) Will be given at the discretion of the DHS on a case-by-case basis.
    4) Once this route is taken, he/she will have to go out of the country for consular processing

    >>> The DHS change would slightly reduce this attraction to employers (though again, only slightly)

    Nope. The change will maintain a status quo. Nothing will reduce the attraction – American workers will continue to lose jobs, and foreign workers will continue to get exploited.

    I would love to be proven wrong on this, but would love to come back with numbers in the next year or so if this rule passes as-is. An early litmus test would also be in the way of no lawsuits being filed against this rule (if it becomes a regulation in it’s current format). Since there is hardly any work authorization or EAD or portability or mobility being addressed by this proposed rule. *If* something is filed, they may be able to revoke the compelling EAD clause above which again is no victory for anyone, frankly.

    If someone is going by the ~150k/year number DHS proposes that this rule affects, I’d love to see a breakdown of that number.

    What it *does* is broadly the following:

    1) EADs with compelling circumstances (as mentioned before)
    2) 60 day grace period for H-1 who are laid off (I’d love to see # of H-1s/Backlogged folks are being laid off is huge that this helps address that, but I am finding it difficult even to find anecdotal evidence for the same)
    3) Non-revocability of 140 by employer after it’s approved.
    4) Remove Interim EAD.

    ps : Allegedly, a chamber funded lobbyist who has joined DHS recently was instrumental in crafting this rule that favors the status quo in a lengthy, beautifully masked rule text that does nothing to help the american worker (or the foreign worker).

    Like

    • See my reply to the other commenter.

      One thing I’ve never understood is why it is such a big deal to leave the country for processing. Don’t most people who need this just make a quick one-day trip to Canada?

      By the way, apparently even if the H-1B is fired he is eligible for these proposed provisions.

      Like

      • >>> why it is such a big deal to leave the country for processing

        One has to wait for Priority date becoming current (or a greencard visa being available) to be able to choose between Consular processing (in their *home* country, not necessarily canada for everyone) or filing for adjustment of status if they want to do it in this country itself.

        Its obvious that in this proposed rule text, if EAD is requested under ‘compelling circumstances’ clause and *if* DHS provides it at their discretion, they will only be able to do a CP at the end of 1-year time when the EAD expires and assuming that at the end of that 1-year duration, the visas for that country has not retrogressed. If it retrogresses, the individual need not even come back to this country.

        Another point I make is that ~150k number that they say that this rule affects in terms of being able to request for ‘EAD’ is clearly flawed. Per the regulatory analysis document here (http://www.regulations.gov/#!documentDetail;D=USCIS-2015-0008-0270),

        “This analysis is unable to model for or predict the number of individuals who would find themselves in a compelling situation, and of that number, then predict their eligibility along those discretionary lines. Thus, the eligible population estimates presented below provide the maximum number of individuals that DHS estimates may be eligible to apply, as the Department is not able to predict the smaller numbers that are expected to meet the compelling circumstances criteria.”

        And Amy Nice seems to be the lobbyist I was referring to. Her profile page on Chamber site indicates that she has advocated for AILA (a powerful immigration lawyer group) in the past.

        As recently as the recent DHS ombudsman conference, this question was raised and the panelists had no answer to that.

        Some of the comments on the regulation seem to be be asking for a FBI enquiry into the lobbyist role.

        Things are getting interesting to speak of the least.

        Like

      • >>> even if the H-1B is fired he is eligible for these proposed provisions.

        “if” is the key word in that statement.

        The whole dialogue gets diluted if employers fire H-1s. It could happen technically, but the evidence is *highly* anecdotal.

        Like

    • Don’t know who you are, but send me a email to vbiersch@gmail.com and I will send you a years worth of pay stubs from a H-1B that will show definite proof that they have been benched without pay which should be the same as a layoff

      Like

      • >>> benched without pay which should be the same as a layoff

        sure. ‘pay rotation’ is another – where in the employee is on a ‘payroll’ with his own pay. and there are several other which can qualify for ‘layoff’..

        on the other hand, the “top 20” sponsors every year (intels and infosyses) bring in more indentured folks and let the citizen/LPR workforce bleed. add to this the half-thought fanning-the-flame comments such as ‘going full monty’ by some otherwise pro-american-worker kinds, the status quo will stay for a long run.

        Like

  2. Yet another example of the DHS making U.S. citizens’s science and engineering careers more INSECURE. I witnessed this scandalous conduct first hand when I attended a number of DHS H-1B “Stakeholder” meetings in Washington, DC while I was working there from late 2007 through April, 2012. While the immigration bar was well-represented, there were very few individuals (including myself) that advocated for the employment rights of experienced American citizen technical professionals.

    Liked by 1 person

    • I’ve noticed that a lot of the foreign workers themselves are angry at the immigration lawyers, who apparently lobbied AGAINST rules changes that would help the foreign workers but result in less income for the lawyers.

      Like

    • In the recent DHS ombudsman’s conference, all the non-admininstration panelists were Immigration lawyers representing employer interests. There was only voice representing *any* worker and that too was towards the end of the talk session and he was the *only* person to ask a question on behalf of workers. He even raised the point if there was anyone in the audience representing american worker and there were absolute crickets.

      Here is the video if anyone is interested – https://www.youtube.com/watch?v=Eu7bat3S3EI

      I find it very weird that all the noise by the pro-american-worker groups is made *after* a rule text is published (not just this rule – OPT and others as well). Cannot fathom why can’t they cannot participate in these public conferences and take the admin officials to task. While a lot of behind-the-scenes lobbying may be happening, it would also be nice to see someone voice out worker’s point of view and put rightful questions even before something gets drafted.

      Looks like it’s very difficult to bust the employer-immigration attorney cartel.American workers losing/denied jobs, wage suppression, indentured servitude are here for a long run.

      Like

      • This is an excellent point. But who would participate? There is NO “full time” organization representing American tech workers, software developers in particular.

        Like

        • All of these so-called unions/groups that claim (most of the time) to represent the american worker can have a satellite office in DC and spend couple of minutes in these conferences. But I digress.

          Any worker in the DC area could (and should) go out there and voice out the dissent. Tech workers (in DC vicinity at the least) – I do know people talk to their congressmen/senators in their respective districts, but administration is only in DC and lobbying/regulations are made in DC and hence the need to have some participation in these conferences.

          Like

          • It is not as easy as you say — who has funds for a satellite office? The Programmers Guild, which is one of only two organizations devoted to supporting programmers and engineers, is a volunteer group.

            I do agree with you that the Americans could do MUCH more.

            Like

      • I have been running this article for the last 3 days and I’m going to run it for 1,000 days if that is what it takes.

        http://keepamericaatwork.com/day-2-no-american-programmers-are-willing-to-stand-up-for-their-future/

        Nobody is willing to stand up and I find that utterly astonishing to say the least.

        I guess American programmers have been neutered by the promise of severance agreements over employment.

        My point is this, I have been trying to get to the point where I could take KAAW to Washington simply because I agree with what you are saying here and I believe we have no other choice as nobody is speaking up for us other than research and we can’t live on research, unless they are hiring us to do it.

        There are others in much better shape financially and more political savvy than I am but it is obvious they will not step up to the plate or they are just trying to make their money while they can before they too are displaced.

        If the American citizen and even the Green Card holders that monitor this site will pool their resources and pay my back pay, I am willing to use that money and go to DC because I think it is necessary.

        http://keepamericaatwork.com/backpay/

        Relax guys and gals, I’m pretty sure that this will not happen which means I need to find a way to do it myself and believe me, I work on it daily, but so far with zero success.

        Like

  3. Professor Matloff –

    This is not entirely true –> “One of the provisions having the most consequence to foreign workers would allow many who are currently waiting for a green card to “jump the gun” and enter the labor market essentially as a free agent, rather than waiting the years until their visa comes up. They only will get an Employment Authorization Document (EAD)”

    The Breitbart article and your post is misleading in that DHS is not handing out EADs to anyone (in effect), which has the immigrants (myself included) majorly upset as it does nothing to end the indentured servitude. This is because, DHS says that they will only provide 1 yr EADs under “compelling circumstances” that practically <1% visa population can *dare* demonstrate. As such, It is a risky proposition that scares the immigrants and hence ensures the indentured servitude continues as usual on H-1B tied to the employers.

    I thought you would agree with the idea of giving EADs to the H-1B people who are already here as that would take away a few incentives from the Intels (e.g. immobile loyal worker). Perhaps you still do.

    Like

    • I have read the material on “compelling circumstances” several times, and still don’t understand what DHS has in mind. They state that they “are not defining it at this time.”

      In my post, I wrote,

      …here would be no real net loss to the Americans. On the contrary, I’ve repeatedly emphasized that one big reason tech employers like hiring foreign workers is that the workers become immobile during the years the green card is pending. The DHS change would slightly reduce this attraction to employers (though again, only slightly).

      Like

      • @matloff,

        DHS has *nothing* in their mind when they are proposing the EAD under compelling circumstances. Here is why:

        1) This “EAD by compelling clause” can be invoked only once and for 1 year only (if granted at DHS discretion) and when it’s used, the worker has to go to his home country and apply for consular processing. It means that it can be invoked only when the worker’s priority date is about to become current

        2) With the recent changes to visa bulletin for setting priority dates (which was another fiasco to speak of), they have introduced a ‘filing date’ and this date is approximately 1 year prior to the priority date becoming current (or a visa number being available for that worker, based on his/her country of birth). If this is the ‘intent’ behind that bulletin change, then the worker for file for ‘adjustment of status’ by continuing to work in this country itself 1 year before the date would become current

        Now, why would *anyone* go with (1) above when (2) is much easier (from logistics standpoint) and lot more practical. DHS just wasted a ton of pages in the rule trying to explain and justify (1) above which no one would use, literally. It’s only for them to thump on their chests to say they did introduce a ‘EAD for people waiting in greencard queue’ concept with this rule.

        Too, (1) would mean the worker has to go to his/her home country, take another appointment with the consulate there wait for a slot to open up and all the time hoping that the dates do not retrogress. *If* the dates retrogress, that’s DHS way of saying – ‘Tough Luck – Sorry to not let you back in US despite you having waited in the greencard queue for decades and all the time working in indentured manner’. So another reason why no one would opt for this option.

        As for ‘not defining at this time’, they never will get to define it in future as well since no one would use it and thus need for them to define it would never arise.

        Like

  4. > All in all, the impact on American workers of the new DHS proposal would be minor. It pales in comparison with what DHS has been doing with OPT, which has been quite harmful.

    Regarding OPT, Breitbart has a long but interesting article on OPT and all of the other visas by which low-wage workers are brought into the U.S. For example, in describing the estimated 1.2 million foreign, professional guest-workers holding jobs in the United States, it states: “That broader 1.25 million estimate is based on a population of 95,000 H-1Bs at universities, 550,000 H-1B professionals at for-profit companies, 110,000 OPT graduates, 350,000 L-visa holders, plus other professionals with fee-trade visas, O-1 visas or other H-1 visas.” However, all of the attention is paid to the annual caps of 65,000 and 85,000. The article states:

    “Basically, the executives and advocates have constantly spotlighted the arguments over supposed annual caps of 65,000 and 85,000, have constantly hustled journalists to focus on computer and software”shortages,” and have rarely even hinted at the existence of the huge university exemption.”

    Like

  5. I’ve had several conversations with immigrant tech workers who’ve told me they use EAD to get multiple bites at the H1B apple. The enroll in some diploma mill masters program then apply for the H1B lottery. If they get selected they’re golden. If they miss out, they enroll in a different masters program, work again on EAD and apply again. Wash, rinse, repeat until they get H1B. The bonus for them? If they take average tech jobs in India, they wouldn’t earn as much and would likely live at home with their parents. With our immigrant worker programs, they can earn decent enough wages in the US, have their own apartments and travel; and no Mom and Dad.

    The handful of outstanding Indian tech workers I know have the ability to earn enough to live like princes in India. On Facebook they post pictures of their houses, multiple servants, frequent vacations, and drivers who take them everywhere.

    Awesome guest worker program. We get average workers and earn a fortune for immigration lawyers.

    Like

    • The general feeling in among the foreign students is “If you want to stay, there is a way.” (Not their phrasing, just my attempt to make a memorable slogan. 🙂 ) In fact, there are lots of ways, as you point out.

      Like

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s