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.