Immigration Lawyer Concedes That the Intels Underpay Their Foreign Workers

Yesterday an NPR piece featured an interview of Bay Area immigration lawyer Ann Cun. Her tone was refreshingly mild, and she made one big concession:

(host) SIEGEL: One criticism of the H-1B visa program – it’s a criticism against guest worker programs – is that they limit the visa holder to working for one employer. So the employee has no bargaining power over pay or promotions, unlike an American who would be free to go work for someone else. Is that a fair criticism?

CUN: I would say initially not necessarily. When you’re in a very competitive market and you’re negotiating with a particular employer, you have the upper hand to negotiate a compensation package that is consistent with the industry and consistent with your peers. Now, on the other hand, if you’re tied to one employer long term for X number of years and you’re relying on that employer to continue to sponsor you for a visa, I could see over a long term period that power of negotiating can diminish over time.

As I pointed out in a recent post, even at the time of hire, the foreign workers have less negotiating power than do U.S. citizens and permanent residents, because the work visa and possible green card are of huge value to them. Indeed, even a pro-H-1B person quoted by the San Francisco Chronicle article I discussed in my post said a foreign worker might be willing to take $25,000 less in salary in exchange for green card sponsorship.

So Cun is being naive here in saying that starting salaries will be equal for equally-qualified Americans and foreigners. But at least she admits that, once hired, the foreign worker’s negotiating power rapidly goes away.

Unfortunately, most of the report has the “Intels Good, Infosyses Bad” theme that I have been saying is so destructive, and that issue matters here in terms of mobility issue Cun brings up. The fact is that immobility is worse under the Intels.

If the employer is simply sponsoring the worker for the H-1B work visa and not a green card, the worker is fairly mobile. He will not be subject to the H-1B lottery or cap if he moves, and the bureaucracy involved is minimal.

But if the worker is also being sponsored by the employer for a green card, the picture changes dramatically. He now would have to begin the green card process all over again if he were to switch employers. Though he may be able to retain his priority date, he still would have to go through labor certification and so on again.  Even more important, there would be lots of uncertainty involved. What if the new employer reneges on his promise to sponsor for a green card, or drags his feet? What if the new labor certification hits a snag? What if the new employer is a startup, with funding in hand for two years but merely hope for what happens afterward?

The Infosyses almost never sponsor their workers for green cards. (See Ron Hira’s work if you need numbers.) Unfortunately, some people use that as an argument supporting the “Intels Good, Infosyses Bad” point of view — the Intels are claimed to use H-1B responsibly, because they sponsor for green cards. But it is exactly the opposite — since the Intels sponsor for green cards, and then use that sponsorship as a way to trap their foreign workers, the Intels’ abuse of the foreign worker system is actually WORSE than that of the Infosyses.

But, you might counter, isn’t it true that the Infosyses generally pay less than the Intels? True but irrelevant. The two sectors are hiring different classes of people. I’ve made a car analogy on this in the past: The Infosyses are buying Toyota Corollas while the Intels are buying Camrys — but both are getting a 20% discount on the classes of cars they are buying.

And once again, the wages are not even the major point. A much bigger issue is loss of job opportunities for Americans.  To suddenly lose one’s career at age 35 or 40 is far worse than having to take somewhat lower wages. Both the Intels and Infosyses are employing foreign workers in jobs that could be filled by Americans.

And in turn, one of the most dangerous aspects of the “Intels Good, Infosyses Bad” mythology is the emphasis on the word replace, as in “The Infosyses are using H-1Bs to replace Americans.” But the Intels hire H-1Bs instead of Americans. There is no difference.

The end of the NPR piece is priceless:

SIEGEL: And we should acknowledge NPR has a small number of H-1B workers. Last year it filed for three applications for H-1B visas with the U.S. Department of Labor.

Yes, H-1Bs are hired in the journalism field too. My favorite example was given to me by a reporter at the Dallas Morning News. Turns out the paper was hiring an H-1B as a “bilingual sports photographer.” No qualified Latino-Americans down there in Texas? Wonders never cease.

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31 thoughts on “Immigration Lawyer Concedes That the Intels Underpay Their Foreign Workers

  1. Completely AGREE. Even within LPR candidates Indians and Chinese are the most attractive. For instance, my friend from Taiwan who was on H1B received his LPR within 6 months. I am certain employers will only go for a Taiwanese candidate if he or she were really excellent for that position. If that were the case for Indians and Chinese as well. You might not find them all stacked in the same numbers like you now do in Silicon Valley. That is why, in the current scenario, to correct the IMMOBILITY factor it is critical to eliminate the per country limits to make an even playing field.

    Eliminating Immobility is not a perfect policy or a complete solution. But atleast, it is a major step in the right direction

    Before you pounce on me for completely ignoring AGE. Let me admit that YES, I do agree that age is still a major factor that makes my Taiwanese friend more attractive over a 35 to 40+-year-old American Engineer. But to fix that the entire skilled based entry into in the US needs to be shuffled. Most American Universities these days are relying on Young Foreign students from abroad because it’s an indirect funding that they provide in the form of fees. Any policy, that will restrict those students entry into the job market will indirectly affect the numbers pouring in. Let’s be honest, in order to enter the American job market if you are expecting 25-year-old students lacking industry experience to be far better than American workers of ALL AGE groups than very few would be able to stay. Ideally as an American worker, that’s the best policy one could ask for but not sure if universities and congress are willing to let go the revenue earned from international students to enact such a policy.

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    • Yes, it will be interesting to see what the universities do, both for the reasons you cite and others.

      For example, it is reported that the Trump people are considering doling out visas according to offered salary. Well, where does that leave the universities’ post docs? That alone would be enough for the administration to decide against the salary ranking plan. Of course, currently the univesity H-1Bs, such as the post docs, are exempt from the cap, so it would be natural to also exempt them from the salary ranking scheme. But once they make one exception…

      Liked by 1 person

      • University post docs have such a poor salary scale in my part of the US that I find it hard to believe they can reasonably support themselves much less a family. I expect many are J-1s so their spouses can work as well.

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        • The original development of the post doc concept was to deal with a glut of PhDs. The fact that we still have post docs, and indeed have made it quasi-mandatory in some fields, shows how bad the glut is. So much for the “STEM labor shortage.”

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    • >> That is why, in the current scenario, to correct the IMMOBILITY factor it is critical to eliminate the per country limits to make an even playing field.

      Yep. That would be a very sane assessment.

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  2. Praise for the reporter in actually having some knowledge of the issues. Re Zuckerberg advocating against the Muslim ban: sounds altruistic until we consider he hires a lot of H-1Bs, and any extensive ban on foreigners would impact his bottom line.

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  3. When I checked on H1-Bs, the Washington Post was listed as having 41. Its new owner, Jeff Bezos, owner of Amazon.com as well, employs several thousand H1-Bs at Amazon.

    Liked by 1 person

  4. This episode, with the “gotcha” of conflict of interest at the end, is so typical. The media pretends to be fair, but it’s bread is buttered on both sides. It reminds me of 15 years ago when I was banned from the Washington Post comment boards for complaining that H1-B leads to U.S. worker layoffs and age bias. The lady in charge of the comment boards, who lambasted me for being ignorant and biased, was herself laid off a few months later.

    Liked by 1 person

  5. The story about Texas newspaper reminds me of a CA local newspaper that fired all of its staff, went totally online, and hired people in India to write the online stories. I searched for the article but could not find it. I remember looking at the website and it seemed to be mostly rewrites of local government announcements, meetings, etc.

    But this could be a model for even the large media outlets. Much of the mass media stories are just pure stenography of what this-or-that person or agency said. Why does the NYTimes need to pay somebody in NYC to do stenography when a bright and inexpensive editor in Bangalore could do it on the cheap. The mass media outlets have already done that for foreign news reporting. Take the situation in Ukraine and Syria. In the Ukraine, reporters if any sit in Kiev and simply pass on press releases without going into the Donbass. In Syria even more so. All the news out of Syria come from third party groups supposedly on the ground.

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  6. “…. since the Intels sponsor for green cards, and then use that sponsorship as a way to trap their foreign workers ….”

    Then why do the Intels support Staple? Staple will take the green card out of play for the Intels when hiring grads of US universities.

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    • First of all, as I keep harping on, the biggest issue of H-1B is age, hiring young H-1Bs instead of older Americans. The new foreign grads are almost all young, expanding the pool of young labor.

      Second, there is a concern among the Intels that if green card waits continue at the absurd time we have now, say 10 years for EB-3/India, the foreign students will simply stop coming to the U.S.

      Third, the “devil in the details” issue really comes into play. “Staple a green card to their diplomas” implies that the foreign student gets a green card immediately upon graduation. But the proposals I’ve seen would not do that. Instead, they would set up a parallel visa to H-1B, and though the green card process would be somewhat simpler, the foreign worker would still be immobile for, say, 2-3 years,

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      • >>> absurd time we have now, say 10 years for EB-3/India

        That’s patently false. I do not think it’s that small that as there are no concrete numbers to support this. And please, don’t tell me you are going by the department of state’s visa bulletin dates to reach this ’10/15′ year wait. What I am afraid of is that the cartel will use your number to justify the ‘need to recoup costs’ they incur on the india born employee for his/her LPR immigration paperwork

        The nearest any one (think tank/media) has addressed this issue (LPR backlog wait time for indians) is https://www.cato.org/blog/no-one-knows-how-long-legal-immigrants-will-have-wait

        Essentially, per your logic, ~ 2700 LPR visas/year/country (7% country cap) translates to ~27,000 in the queue for India for 10 years for each of EB* categories and you think that’s the # of folks waiting?By the way, this country quota also includes (indian born) spouse and (india born) children, whereas all the feeder systems (H1/what not) do not include the ‘dependants’

        I’d like to see someone come up with a concrete number to pin this vague 10/15 year wait period fnumber or india born individuals – And by the way, the same applies to EB2/india, EB1/india as well.

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  7. Hello Norman,
    I have some questions regarding this foreign worker trap / immobility.
    1. I have read some articles that claim that the foreign guest worker cannot accept a pay rise / promotion when he/she is being sponsored for green card. Some other articles claim that they can accept a pay rise but it has some technicalities.
    Or is it that the employers know the foreign guest workers are immobile and simply don’t offer them pay rises or the foreign guest workers pay is still substantially lower after the rise than the market rate for his skill and experience?

    2. Regarding the pattern of immobility, I have some questions regarding the pattern:
    i. Foreign guest worker (assuming Indian nationality) joins the employer on H1-b / OPT.
    ii. Foreign guest worker is sponsored for green card and is locked with that employer for 10+ years.
    a. During this immobility period, the foreign worker doesn’t receive any pay rise / very low pay rise. (This is where some real data could be useful. What is the actual scenario with respect to pay rise?)
    (or) b. Some employers just pay their foreign guest workers the same salary for the whole green card sponsorship period? (Again, some real world examples would be great.)

    In case you haven’t already done it, I would like you to write a post on this foreign worker trap / indentured servitude with some real world examples and actual pay data for the indenture period. [Reference: http://cis.org/labor-shortage-not-reason-employers-want-alien-workers%5D
    That would put the immobility factor into a whole deeper perspective.

    And thank you for your time and effort. I really appreciate your posts on this subject.

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    • Yes, there are some procedural issues in terms of whether the employers could give a promotion or a big raise to the foreign workers — if the employers wanted to, which they typically don’t. Again, see the industry’s own statements on this. There is no hard data that I know of, but there is an old DOL study and a recent academic one that shows workers getting substantial raises right after getting their green card.

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      • The biggest loop hole is in the LPR labor certification process. Lets say a foreign worker is working for a company on H1B for a few years and then they decide to file for his LPR under EB2. During the LPR labor certification process, the employer receives a prevailing wage determination from OES which they are legally obliged to pay to the foreign worker ONLY WHEN HE RECEIVES HIS GREENCARD. Bingo!. So Indians will get a prevailing wage from their employer roughly 10-15 years post its determination. Up until then the foreign worker is treated as H1B and prevailing wage requirements for that can be easily altered (play with skill levels and occupation titles) by employers to match the amount of pay they are willing to pay the worker.

        Surprisingly during labor certification for H1B renewals ( when LPR application is also in process) the DOL does not bother to catch this blatant abuse.

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        • >> So Indians will get a prevailing wage from their employer roughly 10-15 years post its determination

          10-15 years is a gross understatement (although rest of what you said is very accurate). Sorry to nitpick on the granularity, but this is the number that is being peddled around by the cartel with the congressional folks. (of employers needing to “recoup” their costs the invest on the foreign [indentured/indian] employees and they need these 10/15 years to do that).

          .. To a point that even matloff used that number (10 yr) as a ‘random point on the canvas’ and later said that it could be much larger.

          As I point out in my other comment, it’s more like a lifetime for indian nationals.. in other words, ‘no one really knows’ => more of status quo, more mayhem, more job losses, more american worker vs indian worker fights, more borjas vs perri “studies” and so on..

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          • Which cartel are you referring to? This is really interesting.

            Again, I used 10 years as a conservative estimate. One figure I saw a couple of years ago, from a very highly biased source, was 80 years. As you said, no one really knows.

            Let me be clear, though. Even if there were no country caps, the number of American victims would still be quite large.

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          • >> Which cartel are you referring to

            It’s the cartel everyone here is already aware of 🙂

            1) The employers

            2) Lawyer groups

            3) Lobbyists – Chamber and the like that act on behalf of #1 and #2 above

            and to some extent,

            4) ‘Think tank’ immigration groups

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          • The reason I asked is that you said that the cartel is explicitly making the argument that employers need to trap the foreign workers in order to recoup the employers’ investment. If you have a public source for that, I would certainly be interested in seeing it.

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  8. Your argument that employer is to blame for employee trapped in green card backlog is nonsense. You can blame congress for creating such a stupid system and not removing per country limits on green cards.

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    • >> Your argument that employer is to blame for employee trapped in green card backlog is nonsense. You can blame congress for creating such a stupid system and not removing per country limits on green cards

      You may be surprised to learn that a certain country cap removal bill (not part of CIR or any other vehicle) passed 112th congress (yes, it did) and it got stalled in senate. Per the logic you layout, commonsense dictates that this should have law of the land today…. Follow the “trail” and you *will* find answers. !

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      • I really don’t understand your point. I didn’t say that Congress was blameless. What I said was that the employers really like the ability to trap the foreign workers.

        As to the country cap, I have been, and am, officially neutral on that. I can sympathize with those waiting for so long, but look, it was their choice to do get into this very long line. And meanwhile I also sympathize with their American victims (I sympathize with the victims even more when I see the foreign workers refuse to acknowledge that there indeed are victims).

        And on a philosophical level, I’m not convinced that the country cap is a bad idea. The U.S. has to set policy according to its own benefit, however defined, rather than what is “fair” to people who wish to come here from India and China. If “benefit” is defined in terms of diversity among immigrants, I don’t see an inherent problem with that.

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        • All I was replying was to the other’s posters comment on ‘why’ country caps were not removed and why congress is to be blamed by that poster (and ‘who’ runs the congress) – Nothing in what I wrote directly/indirectly was aimed at you.That said,

          >> I’m not convinced that the country cap is a bad idea. The U.S. has to set policy according to its own benefit,

          And I totally agree with that philosophy. Why then, with what we now know, is there a “plan” or a bill or event a “talk” in congress (even for ‘posturing’/’US has to set a policy to benefit itself (aka its workers etc)’ purposes) which would

          1) Propose a blanket ban the alphabet soup employment based visas
          2) Include spouses/dependants into the feeder system and not just the applicant
          2) Introduce a country cap on all the feeder systems that lead to LPR/greencards
          4) or some flavor of above

          [assuming that country caps are something that are still needed in ’employment’ based LPRs/diversity/philosophical/other high-and-sundy purposes]

          Even if #1 above is implemented, what will happen to the ones in backlog, Do we expect them to, realistically, leave the country voluntarily because they are tired of the wait times..?

          As to ‘its [indians] their choice to get into this very long line’, let’s assume for a moment that the ones in these long lines,somehow,magically, go away.. Now, will the law prevent others (indians) from taking their place in the line (thanks to the cartel) and most importantly, will it fix the american job bleed we are seeing today and which is getting worse with every single day that passes by..

          >> If “benefit” is defined in terms of ..

          Sure, we now know how this benefit is defined and ‘who’ (certainly not the people/workforce) defines it for ‘U.S’.

          It does not sound like diversity is to bring in more Indians/populated folks into “skill” based system, shove them into the backlog.

          Lastly,

          >> I also sympathize with their American victims ..

          This issue cannot be fixed/reformed/addressed until everyone gets who/what constitutes “their” in this line above. (the constant MSM/cartel narrative of indian worker vs american worker, when it should be cartel/”traders” vs american worker)

          Would be pretty interesting to learn what the think tank organizations think about all of this. My bet is that they are certainly aware of this, but just that how long can they push/live with the status quo is all is left for us american workers to ‘wait and watch’

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          • I don’t defend either Congress or the MSM, but I have to say that in my interactions with them (very numerous in the case of the MSM, somewhat numerous for Congress), they are in the dark. They really have no idea what is going on. Now, you may ask whether the party leaders know.

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