The President’s Latest Controversy

I hesitated before using my posting title above, because anyone who reads this post one day late will think it’s about whatever new controversy Trump’s has stirred up on that particular day, not the one that was raging today. šŸ™‚

I assume, though, that most readers know that I mean Trump’s executive order temporarily banning certain types of entries to the U.S. from a list of Middle Eastern countries. Ā There is an uproar from “the usual suspects,” as no doubt the Trump people anticipated, but it is remarkable that the topic has eclipsed the controversial policy set by Trump earlier this week on sanctuary cities.

I wrote about this topic when Trump first proposed this sort of thing back in 2015. Then-President Obama disagreed with the proposal, and in my post I stated that I sided with Obama BUT that Obama’s sanctimonious statements were not entirely realistic.

I don’t know the legal implications of Trump’s executive order, issued late yesterday and causing all the commotion today, and I don’t know how it will be implemented in practice. Thus I have yet to form an opinion on it. But as I stated in my previous post, Trump’s critics on this issue must face a cruel fact: If there are more and more terrorist acts within the U.S., even they would feel compelled to take very strong action in the President’s shoes, uncomfortable as they may be in coming to such a decision.

The cruel truth is that we do NOT believe that “Even one lost life is too many.” We are willing to tolerate the occasional terrorist act, because we feel the ideological principles at stake are that important. But would we tolerate 5 major terrorist acts per year in the U.S.? How about 10? How about one or two incidents per year like the mass refugee attack on women a year ago in Berlin? What about incidents like the attack on a kosher supermarket in Paris? Just how many incidents would it take for Trump’s critics to change their minds?

My point, then, is that we all would draw the line somewhere. Those who are berating Trump today have their own tipping point; they just disagree on where it is.

What is new today, though, is that apparently Trump’s policy extends to those with green cards. One source cites White House officials confirming this, and it raises questions.

First, does Trump have the right to include green card holders in his action? Doesn’t a green card grant the right to enter the U.S.? I think the answer is pretty clearly No. As I recall, the law uses the term “brief absences” but frowns on the green card holder spending much time outside the U.S. People who are returning are indeed subject to close inspection.

Some years ago, U.S. Customs agents queried elderly Filipino immigrants about their use of welfare (SSI); how could a person on welfare enjoy international travel? Immigration activist and professor Bill Hing went to their defense, pointing out that their welfare usage was perfectly legal (badly constructed statute), and the feds stopped detaining the seniors, for political reasons, but clearly green card holders are subject to different entry rules than are citizens.

Second, since green card holders have already undergone fairly extensive vetting and have a track record of responsible life in the U.S., was it justified to include them in the current executive order? Maybe not, but it still goes back to the question I raised above: Where do we draw the line? The Boston Marathon Bombers had seemingly-good track records in the U.S. too. The wife in the San Bernardino attacks last year seemed to be doing well in the U.S. too, as was her second-generation husband. So vetting is far from perfect, and even those with green cards can cause tragedies. (So can natives, but we are stuck with them, but have a choice as to whether to allow green card holders re-entry.)

Most of us would want to strike a reasonable balance between the potential for danger and our idealistic principles. But if pressed, how many of us would know where to draw the line? Trump has now set a timeout while his government tries to determine what a good policy ought to be. He has set a temporary moratorium, exactly what he campaigned on, proposing in his words at the time to “close the door until we figure out what the hell is going on.” I don’t think those who were attacked in Boston and San Bernardino would consider such an approach to be totally off base.



Gung Hei Faat Choi

Though Mandarin is the official national language of China, the pronunication of the Chinese New Year greeting familiar to many Americans is Cantonese,Ā Gung Hei Faat Choi (“Congratulations and produce wealth”). Happy Chinese New Year to you all, Chinese or not.

An oft-heard justification for a liberal immigration policy, “It helps the economy,” is overly simplistic and largely misleading, but in my view a compelling justification is that immigration brings diversity. A wonderful TV commercial run by the Bank of America a few years ago put it best: “Californians can celebrate three New Years each year,” with the picture showing January 1 and the Chinese and Jewish New Years. Actually, they could have thrown in a couple more.

But the topic also raises questions. First, how much immigration-generated diversity is “enough”? We in the San Francisco Bay Area are pretty darn diverse now, and have major problems doing well by the folks already here. It’s hard to get across the Bay Bridge almost any time of the day; BART is standing-room only for increasingly-long periods in the morning and evening; at my university, UC Davis, it’s gotten quite difficult to find a seat in the Ā student union cafeteria, let alone a seat in a classroom. Ā UC just raised tuition again, and in recent years the trend has been that students pay more and more but get less and less. After they graduate, many will wonder how they will ever be able to buy a home, even with two incomes. We have double the number of people in the state today than when I was growing up.

Second, in most if not all ethnicities, the culture and traditions do fade away from one generation to the next. NPR’s Kat Chow had a nice piece today on feeling guilty that she is not being “Chinese enough” to please her immigrant dad. Do we need a “pyramid” scheme to keep replenishing that diversity? And, as noted above, can we afford it?

For now, though, enjoy the holiday. As Ms. Chow said, during Chinese New Year it is customary to eat fish for prosperity (the word for fish is a homonym for one meaning “abundance”) and noodles for longevity (long noodles). I wish abundance and longevity for you all.

Point System-Based Immigration Policy?

Reportedly the incoming Trump administration is considering a points system to replace current policy on (legal) immigration. Canada and Australia, among others, have policies along these lines.

The basic idea is to bias policy in favor of immigrants who will be most beneficial to the U.S. Seems plausible. What’s not to like? As the son of a skill-less immigrant who barely finished high school, I do continue to hold the romantic notion of the U.S. being a mecca for “your tired, your poor” and so on, and I have always advocated having a policy that consists of a mixture of socioeconomic classes. But this might be impractical today, and in any case, my interest in writing this post concerns how Silicon Valley, and another interest group to be explained later in this post, might view a points system.

The Trump people seem to think that the tech industry would love the plan, which presumably would bring in lots of engineers and scientists. But I’m pretty sure the industry would oppose the idea outright. I say that because they have done so before, when the Comprehensive Immigration Reform bill was brought before Congress in 2007.

Again, what’s not to like, in this case from the point of view of the tech industry? They want highly-skilled immigrants, right? The problem is that Google and Facebook don’t want skilled software engineers; they want YOUNG software engineers. They don’t want the 35-year-old software developer from Georgia, whether he be from Atlanta orĀ Tbilisi. Most of the foreign workers hired by Google and Facebook are young new graduates.

But…if only points could be awarded for being a young new graduate, the industry might be interested. And lo and behold, that’s exactly what Canada is doing.

In other words, Staple a Green Card, the type of program I have argued vigorously against. It would exacerbate the age problem, reduce wages and job opportunities, increase displacement of Americans by foreign workers (albeit ones who become Americans), and above all, bring down the level of insight and innovation of our technical workforce.

There is another interesting pressure group here. Currently a major part of immigration policy is family-based immigration, part of which is known as Fourth Preference. This is the portion of the statute that allows U.S. citizens (typically naturalized ones) to petition for their adult siblings for a green card. This and other aspects form the core driver of what is called chain migration: John immigrates to the U.S., later naturalizes and then petitions for his sister Mary to immigrate. She brings her husband James, who later petitions for his brother Jared and so on.

There has been heavy criticism of chain migration over the years, and people of various immigration-ideological stripes have proposed eliminating the Fourth Preference. But such efforts have been repeatedly thwarted by heavy lobbying by Chinese-American activist groups, who know that the growth in their numbers has come largely from the Fourth Preference. Would they oppose if a point system were proposed today? Possibly not. I’ve heard that at least one of the Chinese groups thinks that the best way to increase the numbers of Chinese immigrants is through H-1B and the like. A solid majority of H-1Bs is Indian, but the second-largest nationality is Chinese

As the vendors at baseball games used to say, “You can’t tell the players without a scorecard!” Identifying the players — and their “positions” — in the immigration game is getting more and more difficult.




DOL Sues Oracle

The Dept. of Labor has filed a complaint against Oracle, charging discrimination on the basis of race, gender and ethnicity. DOL especially alleges that the firm favors Asians in general, and Indians in particular. This is the same agency that charged that Palantir was biased against Asians, as I reported here in September.

Of course, the connection to H-1B, OPT and so on could be major. Oracle does hire a lot of foreign workers, and the general data on H-1B show that most H-1Bs are Indian. It is also worth mentioning another suit against Oracle, in which a former Oracle manager was told to underpay an H-1B because it was “good money for an Indian.”

At that time I wrote about the Palantir case, I discussed some statistical issues, which seem to be carefully addressed in this Oracle case. DOL found that

Specifically, OFCCP found gross disparities in pay [at Oracle] even after controlling for job title, full-time status, exempt status, global career level, job speciality, estimated prior work experience, and company tenure.

When the Mercury News reporter contacted me today for comment on the suit against Oracle, he asked whether I thought the Trump administration will continue to bring suits of this nature against Valley firms. Interesting question, I told him. šŸ™‚ I said I was hopeful that they will.

H-1B Reform Proposal — a Great Start or a Cruel Ruse?

For some time now, various people and organizations have been proposing a simple, effective solution to abuse of the H-1B work visa: Dole them out according to offered salary, highest first. When the visa cap is hit, we stop issuing visas. Reportedly it is under serious consideration by the incoming Trump administration.Ā I myself support this idea. It would not be a full solution, but would be a great start if properly implemented, though of almost no value if badly implemented, a point I will come back to below.

The proposal is appealing for a number of reasons. It is a clean, market-based approach, trivial to implement and would seem to directly benefit the U.S. economy and society: Assuming that the higher-paid workers have more value to add, this proposal is very attractive.

And unlike related executive actions by George W. Bush and Barack Obama that usurped Congress’ legislative authority, this proposal is clearly within the rights of the executive branch to write regulations; the H-1B statute says nothing about the order in which visas are issued, so the executive branch can set that order as it pleases.

And lo and behold, the proposal has wide support, ranging from strong critics of foreign worker programs to supporters of such programs, notably Rep. Zoe Lofgren of Silicon Valley and the IEEE-USA engineering organization.

Well, wait a minute. The fact that Lofgren and the IEEE-USA support the highest-salary-first idea ought to raise some suspicion. As I have pointed out before, the claimed benefit of the policy may be illusory if it is implemented in the manner advocated by Lofgren.

H-1B and green card law require employers to pay the foreign worker something called the prevailing wage, which is the average salary for a given occupation in a given geographical region, and at a given level of experience. Concerning the latter, four levels of experience — proxies for age — are defined. There lies the problem — would a highest-salary-first policy rank wages overall, without regard to experience level, or would the ranking be done separately within each level?

Lofgren has already proposed that the ranking be within-level. If that is the policy that is adopted, we are for the most part BACK TO SQUARE ONE.

How so? As I have often stated — yes, yes, often harped on — the core of H-1B is AGE. Younger workers are cheaper than older ones (age 35+). Employers, both Intels and Infosyses, love H-1B because it expands the pool of younger, thus cheaper, workers to choose from. The vast majority of H-1Bs are classified as Level I or II, and they are hired instead of Americans, or to replace Americans, who are at Level III or IV.

In a case given wide publicity, Walt Disney company replaced OLDER American IT personnel by YOUNGER foreign workers. Sorry for the all-caps format here, but the age issue is almost never mentioned in discussions of the Disney scandal, and yet it was the central issue, the main way Disney saved money by hiring the foreigners.

But it is not just Disney; it is basically all of the mainstream U.S. tech world.Ā I’ve shown before, for instance, job ads by firms such as Intel and Facebook that specify new or recent graduates (NCGs and RCGs, in HR parlance). They ignore the older American applicants and then hire H-1Bs, claiming a “shortage” of applicants.

Note especially the invention of rather bizarre job titles, such as HP’s concocting the title Associate Software Engineer. Indeed, it was clear from the rest of that HP job ad that it was targetingĀ cheap foreign nationals.

The point is this: Even salaries that are well above average in Level I would be much lower than what established Americans make. Disney would still replace Americans by cheaper H-1Bs, and HP would still aim its “creative” job titles at hiring foreigners rather than Americans.

So, if the Trump administration caves to the lobbyists and defines its highest-salary-first policy to mean highest within prevailing wage level, it will be fraudulent “reform.”Ā It will look good, but for the most part just continue the current tragic situation, in which employers employ foreign nationals in preference to equally-qualified Americans. To be sure, it would help a little at the margin, but it will be end of H-1B “reform.”

If the motivation for highest-salary-first is truly that a high wage means a high contribution to the American economy, then the ranking should be done overall, not within experience levels.