American Victims of H-1B Get Their Chance — Will They Take It?

Two key parts of the Trump administration have now announced something of a get-tough policy on H-1B employers. Today USCIS released a memo announcing the policy, and DOJ released a similar statement. To my knowledge, this is the first time that American STEM workers have been given a voice.

On the surface, the USCIS document is the less powerful of the two, as it says that it will focus on the H-1B-dependent employers. But its language is quite general:

U.S. Citizenship and Immigration Services (USCIS) today announced multiple measures to further deter and detect H-1B visa fraud and abuse. The H-1B visa program should help U.S. companies recruit highly-skilled foreign nationals when there is a shortage of qualified workers in the country. Yet, too many American workers who are as qualified, willing, and deserving to work in these fields have been ignored or unfairly disadvantaged. Protecting American workers by combating fraud in our employment-based immigration programs is a priority for USCIS…

Employers who abuse the H-1B visa program negatively affect U.S. workers, decreasing wages and job opportunities as they import more foreign workers. To further deter and detect abuse, USCIS has established an email address which will allow individuals (including both American workers and H-1B workers who suspect they or others may be the victim of H-1B fraud or abuse) to submit tips, alleged violations and other relevant information about potential H-1B fraud or abuse…

Additionally, individuals can report allegations of employer fraud or abuse by submitting Form WH-4 to the Department of Labor’s (DOL) Wage and Hour Division or by completing ICE’s HSI Tip Form.

The agency seems to be saying that it is interested in any form of abuse of the program. This is potentially quite powerful when coupled with the DOJ memo, which promises to investigate claims of discrimination against Americans in favor of foreign workers.

The reference to the H-1B-dependent employers (which by the way now includes Facebook) may allude to the old Intels Good, Infosyses bad argument. But the Intels discriminate plenty against Americans, because they love the immobility of foreign workers they are sponsoring for green cards. Given two applicants of equal quality, there is huge incentive for the employer to choose the foreigner.

I’ve mentioned, for instance, the Web site of immigration attorney David Swaim, who explicitly urges employers to hire foreign students instead of Americans. Swaim was the architect of Texas Instruments’ immigration policy before going on to private practice. A number of lawyers have made similar pitches to employers to bypass the American applicants. (Maybe DOJ should investigate the lawyers too.)

Today’s Washington Post had an excellent quote on this point from the head of an H-1B worker advocacy group:

American tech companies who use workers hired by these firms benefit from the cheaper labor, as well as the automatic loyalty engendered among workers who would otherwise lose their legal status.

The H-1B visas last for three years, and can be renewed once. But workers applying for green cards can renew their visas indefinitely. There is currently a decade-long backlog of Indian green card applicants. Given the tremendous delay, companies have an incentive to hire workers from India, who critics say end up in a system of de facto “indentured servitude.”

“It’s not because Indians are smarter. These companies want more control over their employees. An immigrant worker has few rights and is now stuck with the employer for many years,” said Aman Kapoor, president of Immigration Voice, a nonprofit advocating on behalf of high-skilled foreign workers concerned about the green card backlogs.

Kapoor calls the H-1B visa program a federally sanctioned “long-term employee retention insurance program” because green card applicants cannot change jobs while their applications are pending or they have to re-start their applications.

Remember, by the Intels I mean any firm that hires H-1Bs directly, typically foreign students earning degrees at U.S. universities. I’ve mentioned, for instance, a California bank that has a department consisting almost entirely of Chinese students (and no, the job has nothing to do with China).

Again, this gives employers tremendous incentive to hire foreigners instead of Americans, outright discrimination.

I was pleased to see that neither of the memos uses the word replace (contrary to today’s Computerworld headline). Keep in mind, even though the Infosyses have something like half the visas and are reviled for replacing U.S. workers, most Americans who have been harmed by H-1B have never been replaced by an H-1B; instead, the H-1Bs are hired instead of the Americans. I’ve mentioned “Ike” before, who has applied for more than 2000 jobs in the Bay Area in the last two years. He has two Master’s degrees from a top university, is highly articulate, is a team player etc., but all he has to show for all that is a couple of very short-term contract positions.

I was pleased to see the statement by John Trasvina in the Computerworld piece:

John Trasvina, who was special counsel from 1997 to 2001, said that even then “there was serious congressional concern about the danger of high-tech employers favoring H-1B holders over U.S. engineers.

“Little has changed over that period of time – the industry has grown dramatically in significant part because of the contributions of H-1B visa holders, employers maintain that they can’t find U.S. engineers, and laid-off or older engineers say they are passed over for younger, cheaper and widely available engineers either trained in U.S. colleges or trained abroad,” said Trasvina, who is dean of the University of San Francisco School of Law.

“U.S. engineers can and should make these claims and have them investigated by the Justice Department and adjudicated by immigration judges,” he said.

I met Trasvina years ago, and he seemed only mildly concerned at the time. The above statement is strong and accurate.

For comic relief, see the video in the Bloomberg coverage of the USCIS/DOJ announcements. The show asked Vivek Wadhwa for his views, and this time he really has gone off the deep end. He insists we vitally need the foreign workers for innovation, bellowing that China is out-innovating Apple, with the firm now reduced to having to “steal Chinese innovations.” The journalist didn’t call him on that.

At any rate, those American tech workers who have long been frustrated by the inaction by (if not complicity of) Congress now have their chance. I hope they take it.

 

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46 thoughts on “American Victims of H-1B Get Their Chance — Will They Take It?

  1. A lot of people who have been in this struggle for while will know exactly what to do with this ‘boot’….because for once in the past 25 years the shoe might be slipping on to the other foot.
    I have list of over twenty five companies that I plan on filing a report on the DOJ/USICS web site over the next few days.
    I am starting with Microsoft and will work my way down to the dregs…pepto in hand…bucket ready.
    To the rest of you reading this…”If you don’t stand up, you don’t stand a chance”…
    For gods sake don’t make me type my ‘d-memo’ to you all again. 🙂
    We don’t have time for it and you should all be well aware of the clock by now.

    Liked by 1 person

  2. Of course this is ambiguous. Fraud would be illegal and actionable, however what is “abuse”? If you click through the USCIS link you get to their report page, that suggests –
    Examples of H-1B fraud indicators may include:
    The H-1B worker is not or will not be paid the wage certified on the Labor Condition Application (LCA).
    There is a wage disparity between H-1B workers and other workers performing the same or similar duties, particularly to the detriment of U.S. workers.
    The H-1B worker is not performing the duties specified in the H-1B petition, including when the duties are at a higher level than the position description.
    The H-1B worker has less experience than U.S. workers in similar positions in the same company.
    The H-1B worker is not working in the intended location as certified on the LCA.

    The only one that might be actionable is the “less experience” metric, but as you have discussed many times, this requires a lot of argument to make a point.

    Where I worked last year the floor was flooded with H-1B, but I couldn’t vouch for the idea that any of them were violating any of these guidelines. There’s a fair chance that I lost at least a part of my contract time there at least indirectly, because I was probably making 3x what they were paying a putative H-1B replacement. Let’s say I was even worth it, but where is the law that says they can’t go with the bargain basement option? I’d hate to argue my own case in court.

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    • First of all, it shows the government that the Intels too are Bad, not just the Infosyses. Hopefully this information leads to stronger legislation than would have otherwise been written. Second, some employers, such as the bank I mentioned, will realize that people are watching, and start hiring at least some Americans.

      But most important, discrimination IS actionable.

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    • When a company employs 100% Chinese H1B visa workers, isn’t that Prima facia proof?

      Or when a whole floor – 75, 100 developers – Is 100% East Indian? These are both mathematically impossible.

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      • If the whole floor were H-1Bs, the employers’ argument that they can’t find Americans for the jobs, while certainly false, would at least be consistent. But when a project is all-Chinese, all-Russian, all-Indian etc., it’s a much harder argument to make.

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  3. Hi Norman,
    I visited the website of immigration attorney David Swaim (hiref-1students.com). In there he says:

    “The employer can protect its financial investment by entering into a liquidated damage agreement with the employee at the beginning of employment. If the employee leaves during the first several years of employment, which means the international employee must find another H-1 and permanent residence sponsor or return to school, than the employer has a legally binding agreement which can be enforced.”

    So have you come across any of these liquidated damage agreements? Is it for a sum like $8,000 or even higher like more than $10k or $20k? If its on the higher side, then no wonder the employers have the H1-b worker over the barrel of the gun.

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    • I think the attorney is correct. See section (j) of the following complaint form which has a check list of violations.

      https://www.dol.gov/whd/forms/wh-4.pdf

      “(j) Employer imposed an illegal penalty (as opposed to liquidated damages permissible under state law) on nonimmigrant worker(s) for ceasing employment with the employer prior to a date agreed upon by the nonimmigrant worker and the employer.”

      So, an “illegal penalty” is a violation but “liquidated damages permissible under state law” are not a violation.

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  4. > The reference to the H-1B-dependent employers (which by the way now includes Facebook) may allude to the old Intels Good, Infosyses bad argument.

    The fact that Facebook is now an H-1B-dependent employer would help explain why they have the lowest median employee age of 28 among top tech companies as can be seen in the first graph at http://econdataus.com/svjobs.htm . That page contains several other charts and links regarding the ages of tech workers in Silicon Valley, along with some career resources at the top.

    > Today’s Washington Post had an excellent quote on this point from the head of an H-1B worker advocacy group:

    I noticed that the Washington Post article also mentioned “a new study Monday from New American Economy, a national business coalition founded by former New York mayor, Michael Bloomberg, showed a growing gap between the number of science and engineering jobs available and the number of American workers able to fill those jobs.” That study is at http://www.newamericaneconomy.org/research/sizing-up-the-gap-in-our-supply-of-stem-workers/ and uses data from Burning Glass Technology, the same group that did the questionable study addressed at http://econdataus.com/claim600k.htm . As stated there, the Burning Glass database and methodology are proprietary and cannot be examined or verified. For example, there is no way to verify that Burning Glass properly accounts for duplicate or fake ads and a number of other problems.

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    • When a reader brought my attention to the Post article, my first thought was, “Right, another Intels Good, Infosyses Bad” article — which it was. BUT the author, in her confusion and ignorance, included some really great material showing Intels Bad.

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    • Job ads are not a usable metric because green card application federally requires they advertise the position, it does not require hiring qualified citizens who apply for it. Hence, years of bogus ads, while GC application is pending.

      Like

  5. Reblogged this on alexmrpg's Blog and commented:
    I’m truly grateful for the opportunity to be in the IT Industry. It has given me the chance to work with and meet a lot of incredible individuals. My start in this field was in 1999 for a company in Astoria NY two years before 911. I remember that well because I my position was “eliminated” just as an intern had been awarded a VISA from the lottery one month prior. That was sadly my introduction to the H1B visa program. Little did I know how much worse this new trend was going to become. Here we are in 2017 and the IT industry has all but rendered extinct the American IT worker and the job security this field once provided individuals who chose to make this a career. I’ve been fortunate enough to be mobile as to be able to stay in my field, which blessed me with living although temporarily, in wonderful cities such as Pittsburgh, Chicago, Philadelphia, and North Carolina. One such place Chicago, touched me particularly for the circumstance to which I had been employed there. Unbeknownst to me I had been employed by the very company who replaced the entire iSeries IT department. I actually attended the going away party. I currently live in Long Island and I want to stay here so for them and for myself I’m blowing those job taking companies out of the water.

    Liked by 2 people

  6. There are likely hundreds of thousands of man years of unused time (from the 6 year maximum before a worker must leave the country or meet the requirement for extensions based on green card filing) that need to be cancelled for everyone not currently working in the US; if an H-1B worker stops working for any time exceeding their earned paid time off, they should forfeit the remaining time. Use it or lose it.

    Additionally, an individual whose petition has been approved should be required to report for work within a very short time (like one month) of the approved start date or the approval for the petition should be revoked without a waiver for reinstatement.

    There are too many applicants and employers without an available job and too many individuals who have an excuse as to why they cannot begin working on the specified date.

    People should also be required to work for a minimum period of time with the petitioning employer before they can move to a new employer. Too many individuals report paying for a visa filing with no intention of working for that employer just so they can enter the US to look for work.

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  7. Trasvina says, :“U.S. engineers can and should make these claims and have them investigated by the Justice Department.”

    I had no idea about this, but my prominent labor attorney knew and we did file discrimination based on national origin. The Justice Dept said they were looking for such a case, an usual use of the law with American being the ones discriminated against.

    We just missed the deadline to file, which then was 90 days. Today is 180 days (half year). Wish it had been that when my attorney filed.

    Info is here:
    https://www.justice.gov/sites/default/files/crt/legacy/2015/05/27/ChargeForm_ENG_010215.pdf

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  8. Dr. Matloff,

    Glad to see you comment on this and explain it in more detail along with the links. I saw this on the news with Sean Spicer making a short comment on it as well as Wadhwa’s comment on Bloomberg.

    So what is reportable – and more importantly – what is actionable?

    – when I apply to a job where I have all the required skills in the job description and I don’t hear back from the company?
    – when I apply to a job where I have all the required skills in the job description and the company responds with a ‘thank you but you did not meet the requirements’ email?
    – when I apply to a job where I have all the required skills in the job description and the company responds with a ‘thank you but we had an overwhelming response and decided to go with another candidate’ email?
    – when I apply to a job where I have all the required skills in the job description and the company asks me to do a coding test; I pass the test with flying colors and the company responds with ‘you were not strong enough of a candidate’?
    – when I get offered a job that pays half the salary or rate that someone with my experience should be compensated at market?

    With any of the above situations, there is nothing concrete to convict the company of choosing an H-1B over an American. It’s even harder to convice them of age discrimination. All they have to do to find a candidate’s age is Google.

    Even with the Disney and Southern California Edison cases of replacing American IT workers with H-1Bs, it was said that these companies were legally allowed to do what they did.

    This sounds like an appeasement move. I mean, seriously – what can the DOJ do to a ‘guilty’ company? Ban the company from ever applying/using the H-1B visa? Cancel all the visas that company currently has and send the H-1B worker back home?

    The bottom line is still the number of H-1B workers here in the U.S. – everything else is just courtroom and media drama.

    From what I’ve read, the H-1B program can only be changed in Congress so this is as much as Trump and Sessions can do for now until they can actually pass a bill.

    Like

    • Just a comment to those of you who expect anything more than lip service from the new H1B policy. Take a good look at the Wall Street fraud and how they were punished by TPTB. This is your clue of what you can expect. The comment from NETMOUSE, on just missing the deadline to file a suit supported by the DOJ, made me laugh out loud. Did NETMOUSE really expect to get any relief from the govt on a govt supported policy.

      This is a political issue and those you voted for again and again are responsible for it. So, now you know what you need to do. Vote them all out, while you still can.

      Like

  9. I plan on taking the opportunity but I won’t get my hopes up. The law doesn’t really have teeth, and I doubt much will be invested in such investigation. Employers have been clever with their sophistry in constructing rationale. For instance, one company I worked at as a consultant (medical device company) focused their H-1B hires on Canadians who graduate from McMasters because they claim they have skills Americans don’t have (the CS program had a management minor). They would put them in leadership positions before the end of their first visa expiration so they could claim them as essential to their business – instead of more experienced Americans who too had management minors or majors. Perhaps it was poetic justice seeing them forced to sell because of the mounting problems due to poor judgment that lead to bad decisions.

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      • I’ve thought on this a number of times before, and came up empty. The only way I can think of is adorning the visa law with additional legislation that requires they prove the inability to hire American workers that fit their skill requirements, but how do you implement that practically? I haven’t been able to answer that question to my satisfaction as a manager.

        Managers tend to hire more subjectively than many of them would admit. Along with that subjectivity is also bias. (As a sideline, I believe such keeps the Glass Ceiling in place.)

        Many won’t even pursuing candidates who have recently been laid off, or candidates that have something else in their job submission that turns the manager off. And the two biases I see so prevalent is younger is cheaper and smarter (thanks to Mark Zuckerberg for the latter), and H-1Bs are more controllable.

        When it comes to such bias and subjectivity, no manager I know actually thinks them out, challenging their assumptions and biases. They just decide – an execute now, think later trend I’ve seen so much of in my career. This is why they call it an implicit bias.

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  10. It’s also a question of whether there should be a large number of individual suits, or a large class-action, against each company. And, whether the outcome should include a Consent Decree with federal oversight of hiring, and/or a public statement admitting guilt (and over what period and how many Americans were victimized). I know it’s early in the game for these kind of decisions, but there should be a “game plan” with definite goals in mind. However much I hate to see federal interference in hiring (as with anything private), at least the threat of same may bring Big Tech to the bargaining table in earnest.

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  11. You are correct the Intels are among the worst H1B abusers, but mainly over looked. US corporations gain from H1B abuse in 3 primary ways, lower pay, immobile work force and no long term liability. The H1B is terminated automatically by design at the end of the term. No worry about wrongful termination or long term support. It’s cheap labor business model nothing more.

    The Bloomberg report seemed more like an ad for H1B than a report, very hard to watch. Vivek Wadhwa was unbelievable, first he asserts that all H1B are geniuses. So let’s look at that, India has been the main beneficiary of the H1B program for decades, nearly 70% of H1Bs come from India. There are far more candidates from India as there are H1B visas given out each year, so for decades India has been the main beneficiary of returning geniuses. But when Vivek listed out competing companies he didn’t name even one from India. After decades of returning geniuses, the main export from India is outsourcing companies and a desire for more and more H1Bs. Other than outsourcing, where is the technical innovation from India? I can’t think of even one.

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  12. I visited a new website supposedly targeting OPT opportunities. I had to chuckle. One job in my state was for a COBOL programmer on an AS400.

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  13. Norm, I wish success to anyone pursuing a lawsuit. However, companies need to see that you get what you pay for – and hopefully the marketplace will settle some of this.

    Said several times before “Cheap labor gets cheap ethics.” Companies will only change when they get ripped off major or their products get thumbs down from the public.

    Just called my old firm that I left in March 2016. Their idiot H1B DBA still hasn’t figured out how to do a simple Oracle database upgrade after trying for over a year.

    Still say there is going to be more scandals of the nature of OPM and Wright State. When some Silicon Valley firm gets ripped off big time then maybe the CIOs and CEOs will wake up.

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  14. Maybe it might be a client of an outsourcer who mounts a case. Many clients, especially government departments, become furious when they realize their project is not working and the outsourcer has them over a barrel. Then they find the contract is watertight in the outsourcer’s favor.

    However if the outsourcer knowingly hired less capable developers, that might be considered a breach of the implied term that they will make best efforts to deliver the project. And that might provide a cause of action.

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  15. Just to clarify, Trump has done many a bad thing for STEM in the forms of slashing funding and spreading anti-green energy ideology. And there has as of January there’s been a bill to amend H1B, one of the major points of it being to more than double the minimum salary a H1B worker receives (it’s been unchanged since 1989), which may help curb abuse by corporations only hiring H1B workers to save money.

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    • Trump has said that he believes in climate change but is skeptical about whether it is severe enough to take drastic action. As I have said, I have not studied the matter myself, so I have no idea as to whether there is any merit to his claim.

      A lot of science research is not very helpful to the advance of science, let alone to practical matters. I believe that science funding should actually be increased, but it should be better targeted.

      Like

    • There is NO minimum salary for H-1B, other than prevailing wage. That $60K figure you are referring to is NOT a minimum salary. A lot of people are obfuscating the argument (either deliberately or due to ignorance) by misrepresenting that $60K provision.

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  16. Vaguely glad to see this come along as weak as it is. Unfortunately it has come way to late for me. I was dumped out of IT in 2001 when the industry crashed and being older than 50 I never had a chance to get back in.

    Over the ensuing years I have had many interactions with H-1B’s as I live within 10 minutes of One Microsoft Way. As a group the Indians are definitely weak on problem solving skills. They eventually will learn task A but seem to carry little of the knowledge gained to the next task. The Chinese and Japanese are much better and grasp new ideas more quickly. None of them, as a group, show any particular “Unicorn” abilities.

    FYI: My last boss in IT was an Indian who immigrated to the US in the 1980’s. He definitely did NOT fit the above description at all. I have lost track of him but I wouldn’t be surprised if he had participated in creating a Unicorn. While a sample of one doesn’t prove anything it makes me think the basic problem for the IIT graduates is a combination of cultural and curricula. The US students grow up in a culture that supports and encourages “thinking outside the box” that is lacking in India

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