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.