You Can’t Fix It If You Don’t Understand It

Donald Trump named his Labor Secretary today, causing considerable consternation among those who hope that Trump will tighten up the H-1B work visa program. It would appear that nominee Puzder may be a big fan of H-1B and similar programs. I’ll come back to Puzder below, but even if he has the best of intentions to help American workers — which I will believe unless I see otherwise — the key point is that you can’t fix H-1B if you don’t understand it. And it IS a complex issue.

A case in point is Alexia Fernandez Campbell’s second piece on H-1B in less than a week, titled “There’s a Clear Way to Fix the H-1B Visa Program,” with subheadline “Closing a 1998 loophole would prevent companies from replacing American IT workers with foreign guest workers. Why hasn’t that been done yet?” Sadly, the entire premise of her piece is wrong.

Though I dismissed her earlier article as being paid for by a pro-immigration group, I must say that there her errors this week, though certainly egregious, are not her fault. She appears to have been fooled by a fast-talking lobbyist who took liberties in explaining this complex topic to her. Indeed, I learned today that another journalist, one whom I respect quite highly, was also taken in.

Many, I suppose most, readers of this blog have a specific interest in H-1B. Some are programmers and engineers, some are journalists, some are government policy people, some are immigration economists. If indeed you have a keen interest in H-1B, please pay close attention below. The vulnerability of the above two journalists to lobbyist obfuscation shows how easy it is to go wrong.  And going wrong leads to wrong policy!, even with good intentions.

Here is what Ms. Campbell says:

Ultimately, nothing happened with these investigations [of Disney and SCE, who replaced their American workers by H-1Bs supplied by H-1B-dependent employers such as HCL] because replacing American workers with H-1B workers is perfectly legal in many cases. That’s due to a loophole in the law that exempts certain companies from complying with the requirement not to displace an American worker when they petition for one of the 85,000 H-1B visas available each year…

[the 1998 revision of H-1B] allows those same H-1B reliant companies to ignore the requirements about protecting American jobs as long as they pay the foreign workers at least $60,000 a year, or hire a foreign worker with a master’s degree. …Considering the average IT worker in the United States makes far more than $60,000, that exemption makes it lucrative—and legal—for companies to displace American workers with cheaper H-1B workers.

Wrong, wrong, wrong. ALL employers of H-1Bs, whether they are H-1B-dependent or not, are required to pay the legally-defined prevailing wage. That wage is typically below what a free agent would command in the market, but as Campbell points out, even that lowball figure is typically well above $60,000. So the $60K figure is irrelevant.

Say the legal prevailing wage for a given occupation, region and experience level is $75K. Then ALL employers, including those designated as H-1B-dependent, MUST PAY AT LEAST $75K, not $60K. The H-1B-dependent employers do NOT have special permission to pay only $60K.

The author is also confused as to which employers are currently allowed to replace American workers with H-1Bs:

While some lawmakers have proposed raising the $60,000 threshold to $100,000 or more, this would still allow companies to replace American workers. Instead, some have suggested eradicating the salary exemption altogether, which would require H-1B employers to show that they are not replacing American workers, regardless of how much money they are paying the foreign workers. Eliminating this exemption would have bipartisan support…

The author seems to think that the non-H-1B-dependent employers are currently banned from replacing Americans by H-1Bs. That is totally false; no such statute.

The lobbyist who she quotes, and on whose statements she is clearly basing her entire article, is Bruce Morrison, who was involved in the original 1990 H-1B legislation. He has disseminated misleading information of the above nature before, e.g. in a letter to the editor in the New York Times.

Which brings me back to Trump and Puzder. Those who are upset about the latter being tapped for Labor are missing the point, which again is that even if Puzder tries to do right by American workers, he can be bamboozled by the slick lobbyists, who will offer deceptive “solutions” that in the end will INCREASE the number of foreign STEM workers added to our labor markets each year.

How can the lobbyists do this? It is quite easy. They simply blame the problem on the “Infosyses,” saying that the “Intels” use the H-1B program responsibly. This article does this, and indeed we have had an almost daily diet of such articles in the last few years. I’m told that Trump did so in his speech today, saying,

We will buy American and hire American…During the campaign, I also spent time with American workers who were laid off and forced to train the foreign workers brought in to replace them. We won’t let this happen anymore. Can you believe that? You get laid off, and then they won’t give you your severance pay unless you train the people that are replacing you. I mean that’s, that’s actually demeaning, maybe more than anything else.

Very nice, but the key word here is replace. Trump said “hire” but in the details it is clear that he really means “replace.” As I have explained before, the Infosyses use H-1Bs to REPLACE Americans but the Intels hire H-1Bs INSTEAD OF Americans.

Parsed carefully and with proper background, Morrison’s letter to the Times is consistent, though with a false premise. The background here is that Morrison is assuming Intels Good, Infosyses Bad. The $60K figure only was intended to apply only to the Infosyses, and due to inflation it no longer applies even to them. So, Morrison is saying we need to simply clamp down effectively on the Infosyses, and all is good.

And though I appreciate the author’s brief mention of the age aspect of H-1B, she misses the point that the four-tier experience structure in the rules for prevailing wage is the driving force behind that age issue. The law allows ALL employers of H-1Bs, not just the Infosyses, to hire young H-1Bs in lieu of older (35+) Americans.

So, unless there are people who have Trump’s ear and can explain that the Intels are just as culpable, what we will get in the end is legislation that punishes the Infosyses but REWARDS the Intels. The reward would be in the form of increasing the H-1B cap (for non-Infosyses) and/or implementing a Staple a Green Card program. Either way, we will get an INCREASE in the number of foreign workers added to STEM labor markets every year.

All because of a lack of understanding of the complexities of the H-1B issue, even by critics of the H-1B program.








28 thoughts on “You Can’t Fix It If You Don’t Understand It

  1. > All because of a lack of understanding of the complexities of the H-1B issue, even by critics of the H-1B program.

    Agreed. I think that another problem is false claims that are being made that imply that there is a drastic shortage of STEM workers. Two such claims are posted on the White House website. The first claim is that “by 2020 there will be 1.4 million computer-science-related jobs available and only 400,000 computer science graduates with the skills to do them” and is described at . The second claim is that “economic projections indicate that by 2018, there could be 2.4 million unfilled STEM jobs” and is described at . The number of jobs in both claims are based on very old projections and both claims ignore many of the workers that fill those jobs. The first claim looks only at an old (and low) estimate of the number of computer science graduates from U.S. universities. It ignores all other degrees and all degrees from non-U.S. universities. The second claim just ignores ALL workers! I suspect that these bad claims are on the White House website because there is little to no fact-checking of commentaries that are posted there. This causes a huge problem because many people rightfully expect anything on the White House web site to be carefully fact-checked. In any event, these particular postings may become moot as they will likely disappear with the new administration. But I have no reason to think that they will not be replaced by new, equally bad and non-fact-checked claims. Trump has shown no inclination to provide sources in his tweets and I will not be surprised if they continue to be lacking on the White House website.


    • 90 MILLION Americans are out of work. 2-3 million new STEM jobs by 2020 is a drop in the bucket. Americans need 30 TIMES that many new jobs.

      You can’t keep flooding a country with unlimited numbers of unemployed from the 3rd world when there are only 160 million jobs available and not have unemployment. H-1B has become a foreign takeover program, not workforce augmentation.


  2. It is NEVER legal to hire ANY foreign worker for any job in the USA if Americans “similarly employed” (i.e. in the same profession) will be “adversely affected”. Having your job/living ripped out from under you by unqualified, and therefore, illegal workers ALWAYS “adversely affects” American wages and working conditions. Therefore hiring foreign workers when Americans are available is always illegal.

    This is the law and no amount of lobbying and talk will change it. In ALL cases it is completely illegal to both replace and not hire Americans if doing so will “adversely” affect them. This is the law in ALL cases – H-1B, L-1, OPT, replacement, hiring foreign instead of America.

    THE LAW is quite clear – American jobs belong to US citizens first and always first. If ANY qualified Americans are unemployed and foreign workers are hired, the hiring company is BREAKING THE LAW.

    Read TITLE 8, Section 1182 INADMISSIBLE ALIENS, in particular subsection 5.

    The problem is not the law, but rather US gov’t policy of non-enforcement because we now live in a communist (globalized) world in which the US economy and jobs are being used as wealth redistribution engines for failed communist states such as China, India, Russia, Mexico.

    Those are the facts and until the American people DEMAND ENFORCEMENT, and US companies are RAIDED by the DOL, USCIS, and ICE, then nothing will change.

    American workers ARE protected by the law always in all cases. The US gov’t simply chooses not to enforce those laws.

    So much for the usual propaganda that “We are a nation of laws” and GHWB’s 1991 speech about “The rule of law and not the rule of the jungle” governing nations.

    Laws only apply to the people that the powers that be would rather eliminate.

    We need to demand that Trump begins enforcement AND deportation immediately. Nothing else will fix the problem.

    “We must now face the harsh truth that the objectives of communism are being steadily advanced because many of us do not recognize the means used to advance them. The individual is handicapped by coming face to face with a conspiracy so monstrous he cannot believe it exists. The American mind simply has not come to a realization of the evil which has been introduced into our midst.”
    — J Edgar Hoover, Father of the FBI

    “You Americans are so gullible. No, you won’t accept Communism outright. But we’ll keep feeding you small doses of Socialism until you finally wake up and find you already have Communism. We won’t have to fight you; we’ll so weaken your economy until you fall like overripe fruit into our hands.”
    — Nikita Krushchev, former Soviet President


    • The problem with your “adversely affected” interpretation is that it comes from historical context, which was to prevent, for example, union workers being replaced by non-union ones. So while a literal interpretation of that phrase would say that Americans always have priority (which I too have pointed out over the years), a court would have to take congressional intent into account.

      The clause on admissible aliens is ONLY for green cards, not H-1B.


      • TITLE 8 doesn’t mention anything about green cards, nor about unions or union workers. It simply says “American workers”. Subsection 5, which mentions “adversely affect” applies to ALL workers within US borders, not just H-1Bs or green cards. “INADMISSIBLE ALIENS” is not a clause in Title 8, it IS Title 8 right at the top:

        8 U.S. Code § 1182 – Inadmissible aliens

        The entire section deals with inadmissible aliens – which are defined as ALL foreign workers if American workers are adversely affected.

        90 million Americans are out of work and have had their lives stolen by inadmissible aliens.

        American workers ARE protected in the law in all cases. Bottom line is that foreign workers are inadmissible if American workers are unemployed or have their wages reduced, or are replaced, or are forced to train then are replaced.

        There simply is no enforcement. The law isn’t the problem, lack of enforcement is.


        • I appear to stand corrected on 1182. I have the recollection that it was different before, and that John Miano said there was a change, but in any case, it is clear now, as you said. But you seem to have misunderstood my point about the unions etc., as to how “adverse effect” is interpreted and what Congress intended.


        • Your subsection 5 says, “is inadmissible, unless the Secretary of Labor has determined and certified to the Secretary of State and the Attorney General that ….there are not sufficient workers…… will not adversely affect the wages …..”

          Those H-1B databases on the Internet clearly say “Certified” when a guest worker visa is issued. No wrongdoing is occurring.


          • “Those H-1B databases on the Internet clearly say “Certified” when a guest worker visa is issued. No wrongdoing is occurring.”


            “There are not sufficient workers”. Really? 90 million Americans out of work and there aren’t sufficient workers? Do you really expect us to believe that out of 90 million Americans NO qualified IT workers can be found? Come on. We all know what is going on: cheap labor replacement. And even if there aren’t sufficient workers, foreign workers cannot work if it adversely affects wages and working conditions of Americans. 90 million unemployed is adversely affecting the working conditions of Americans. Therefore all foreign workers are illegal an inadmissible.

            H-1B is a workforce AUGMENTATION program – to be used only in times of true labor shortages. It is NOT a replacement program and it is NOT a mass immigration program, which is what India has turned it into. 90 million Americans out of work is not a labor shortage – it’s a labor SURPLUS, and therefore H-1B is invalid, illegal, and must he halted immediately.

            If the Secretary of Labor “certifies” that there are not enough workers when 90 million Americans are out of work, many of them with multiple advanced degrees working in minimum wage jobs, then she is LYING.

            We all know the DOL is run by big corporate interests and is used to manipulate the labor supply. The current head of the DOL is Mitch McConnel’s wife, Elaine Cho, herself of Asian persuasian. We all know this is all part of the War on White America. Asians are given preferrential treatment because an Asian is running the DOL. Of course “no wrongdoing was found”. Rubber stamp them, get them in.

            And now Trump’s pick for DOL head is Carl Jr’s CEO, who is an outspoken advocate of both immigration and cheap labor.

            Try putting in a worker’s advocate in as DOL head and do some real investigations instead of a corporate representative and see what happens.


        • So True.

          What follows is a response from the DOL (Yes, I really do write them many, many times)

          All of us here could teach this class, yet that is their remedy.

          Mr. Bierschwale:

          Your correspondence dated Nov. 4, 2016 regarding your continued employment search was received by the Department of Labor. Your correspondence was forwarded to me for my review and response.

          I have attached a copy of our December 30, 2015 correspondence and would like to provide you with the updated and new information to assist with your search. Please note the updated phone number for the Kerrville American Job Center which is now (830) 257-3171. Additionally, I have attached new information on the attached flyer for the Patriot Boot Camp which is scheduled for February 3-5 2017 in San Antonio, TX and sponsored by Techstars to assist entrepreneurs in technology careers. Please note the application deadline is 12/11/2016.

          Thank you for contacting us regarding your continued difficulty with obtaining employment and again, do not hesitate to contact our Texas DOL-Vets office at (512) 463-2814 for continued assistance.


          George J. Riedel
          Deputy Regional Administrator
          Veterans’ Employment and Training Service

          U.S. Department of Labor |

          525 S. Griffin Street, Rm. 858

          Dallas, TX 75202
          (972) 850-4719 | Fax (972) 850-4716


    • H-1B doesn’t need reform. ALL H-1B is illegal if qualified Americans are unemployed. H-1B is for labor force AUGMENTATION, not replacement. H-1Bs can only be legal if no qualified Americans can be found, which today is clearly not the case.

      ALL foreign workers are inadmissible aliens under TITLE 8 if Americans are unemployed. If Americans are unemployed and foreign H-1Bs are working, they are working illegally according to the law. Raids, arrests, and deportations should be happening in all cases if Americans are unemployed. Title 8 says so. 90 million US citizens are out of jobs, and millions of H-1Bs are working (illegally according to Title 8). We need raids, arrests, deportations. Any other country would do the same to Americans if 10 million of us entered other countries and threw natives out of their jobs.

      Let’s stop the mish-mash of the law. H-1B is for labor shortages only, never for replacement. With 90 million citizens unemployed, there can’t possibly be a shortage. What was once a limited augmentation program has today become a full-scale invasion and takeover vehicle.

      American jobs for Americans first. All others can fix their own countries.


        • >> Again, you have to keep in mind that the industry lobbyists have brainwashed Congress and the press

          Very few get this. Everyone “knows” it, but very few actually *get* this. If Chamber of Commerce can have such a grip on the much abused EB5 visa (supposedly no job losses/replacements etc vs the much spoken H-1) —

          >> When H1-B’s start being given to married men and women in their 40’s and 50’s
          While people may be getting their H-1s in early twenties, but once they are pushed into the greencard backlog, they will virtually die in those backlogs (all the while remaining on H-1).

          >> The clause on admissible aliens is ONLY for green cards, not H-1B

          H-1 and greencard are often conflated even by the ‘best-of-the-best’


          • Section 1182 INADMISSIBLE ALIENS applies to ALL aliens – not just H-1Bs, green cards, or anyone else. That is the law. The law is the law.


          • As I said, though at first glance, your reading of 1182 seems correct, my recollection is that it applies only to green cards. I just checked my copy of Immigration Law and Procedure, by David Weissbrodt, 4th ed., 1999. This book is used in law schools and by practicing lawyers. It states that 1182 pertains to green cards. And by the way, for what it’s worth, it refers to “labor certification,” the term used in the green card process. It could be that things have changed since then, as I said.


        • I agree with you Norm, but that does not change the fact that inadmissible aliens working while Americans are unemployed is still illegal in all cases.

          I agree lobbyists and media are the problem, and they mislead the pols, but the law is the law.

          We need enforcement, we need raids, arrests, and deportation.


      • To add insult to injury, we did not send our jobs overseas and we did not import non-immigrant guest workers to take our jobs.

        Companies like Walmart did, enabled by Free Trade Agreements and non-immigrant guest worker visas that are licensed by the Department of Labor.

        These actions, as compiled from the Social Security annual reports have destroyed my credit, and the credit of what I believe is millions more.

        Many will turn their nose up at me and say “Get a job at Walmart So that you will have a JOB”.

        Apparently they reject you based on credit now.

        So tell me, if I can’t get hired for software projects that I used to manage.

        And if I can’t get hired for “paper or plastic” jobs.

        What option does that leave for me, and others?


  3. Norm, thanks for the refresher on these important points.

    The below link, I found the DOL presentation on the H-1B. Pretty easy to find, the first link in a Google search “h-1b dependent employers fined”. It has a link to the DOL website on current fines as of 08/16. As I recall the fines are so mild that any violation is a simple cost of doing business.


  4. I don’t follow. From the quotes you provide, I see no sign that Campbell knows an Intel from an Infosys. Nor that she understands anything at all, even the most basic intentions or facts, frankly. Trump’s comment, while incomplete, says nothing incorrect. More to the point, do we have anything from or about Puzder?

    Puzder is head of CKE Enterprises (Carl’s and Hardee’s), so he employs many thousands of legal and illegal immigrants. He has supported the immigration reform bill that would have brought in more H-1B.

    Not good. Jeff Sessions cannot approve. There’s some column being passed around that Trump is being Machiavellian in hiring many who have opposite views. Puzder has supported Trump – after other Republicans dropped out.

    Well, we shall see.


  5. The other side of the equation is this: A U.S. citizen knows enough about what’s “reasonable” and “traditional” to expect to have a “life” outside of work, and not put in 80 to 100 hours a week for a 40-hour position. The U.S. citizen knows he/she can find a job with a more reasonable employer if their current boss makes unreasonable demands. An H1-B is not in a position to bargain for 40-50 hour workweeks, and has no leverage to escape to another employer — because the H1-B visa is tied to the one employer who sponsored them into the country.

    Not only does the H1-B’s employer get to undercut the wage somewhat, but getting a compliant 80-hour worker is more appealing than a 40-hour worker who can leave at-will.

    Not only that, but look at the demographics of the H1-B’s. The vast majority are single males below the age of 25. This means –
    No family responsibility – no wife or kids to divide their time
    No family or friends to rely upon if they have work issues
    Usually few or no major health issues, and lower health insurance costs

    When H1-B’s start being given to married men and women in their 40’s and 50’s with families, then we’ll know the program has finally been fixed.


      • Most of the ones from India appear to be married as well.
        BUT, they are being forced to work those hours from what Kumar has said, and their wages are being “clawed back” for various reasons according to the pay stubs I have seen.

        One thing that stood out on those pay stubs is the hours worked are never mentioned.


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