I think that in general we should oppose EMPLOYER sponsored immigration and/or work programs. I can't name an employer sponsored visa that hasn't resulted in fraud and abuse from employers - and a defacto indentured servitude relationship between employer and employee.
If you support the rights of labor and the notion that a worker, immigrant or citizen, should be able to leave their job without civil penalty, you should oppose the H-1b visa and evil cousins H-2 and L-1.
When an employer controls your right to live in this country, you will allow that employer to subject you to all forms of abuse out of fear. When an employer sponsors you for a green card, you won't negotiate for higher wages and better benefits because you know that losing your job would not only result in a loss of income, it would reset your perment residency process.
As a Democrat I find it disheartening that Senator Schumer would support a program that enables the exploitation of foreign workers, and harms American workers. He needs to get with the program and read what the AFL-CIO says about the H-1b visa. I can't imagine any self-respecting Democrat supporting an anti-labor and anti-immigrant agenda that embodies the H-1, H-2, and L-1 visa programs. Read the Article at HuffingtonPost
HR 4321 – Analysis of the Gutierrez Comprehensive Immigration Reform Bill and the impact on skilled workers
I have had a long break from blogging, and wanted to take some of my spare time over the holidays to write about the immigration bill recently introduced. This 643 page bill tackles many immigration issues outside the purpose of this blog; as such I will focus solely on the provisions that impact the IT industry.
I reveal my support or lack of support further down. Please read my analysis so that you understand why I came to the conclusion that I did.
As I have stated for years, the H-1B and L-1B visas are disproportionately harmful towards the IT workforce. This is mainly because of a few factors:
First, the lion’s share of H-1B and L-1B visas go companies who sponsor IT workers. The concentration of workers in our profession impacts us more than any other. To make matters worse, in 2006 six of the top ten sponsoring companies of H-1B visas were Indian offshore outsourcing firms. Studies have shown that staff augmentation firms, or “body shops” are the worst offenders of the program and involved in high levels of fraud.
Second, many sponsors of H-1B workers are not paying market wages to their employees. Although the law requires “prevailing wages” to be paid, the legal definition of “prevailing wage” is well below market wage. As a result, a program originally created to fill labor shortages is now used to lower the cost of labor. The L-1B visa does not require any market test at all.
And the third (and last point) I will make is that H-1B workers aren’t able to participate in the free labor market. Because they are “sponsored” by a company, it is difficult for them to change jobs or find another sponsor. Workers seeking a permanent residency (a green-card) must reset their long and tedious process if they change jobs. This factor makes these workers exploitable, and less likely to bargain for market wages. Many are intimidated by their employers and fear being forced to leave the country. L-1B visa holders face a similar dilemma. This factor is why I often refer to H-1B and L-1B visa holders as “indentured servants” given their lack of mobility.
Although that is not a comprehensive list of problems with the H-1B and L-1B visas, it highlights some serious issues I have with the program. If you want more information on these programs and general concerns, a great resource is Wikipedia. Hopefully this short explanation is enough to set the stage for my analysis.
Instead of a verbose explanation of the impact, see the two tables below. In it I have a comprehensive list of H-1B and L-1B visa problems and correspond that to how this bill addresses each. I also indicate what I believe the impact on the IT profession will be (either positive, negative, or undecided). The first table is specific to the H-1B program and the second is specific to the L-1B visa program. Although I don’t agree with the politics of Greg Siskind and wouldn’t nominate him for “Person of the Year” he is one of the most respected attorneys in his field; as such I relied mainly on his analysis which can be found here: http://blogs.ilw.com/gregsiskind/2009/12/the-siskind-summary-a-section-by-section-review-of-the-gutierrez-immigration-reform-bill.html. Although I’m no legal scholar, I could find no discrepancy between Siskind’s analysis and the parts of the legislation I am discussing below.
Table 1.0 – HR4321 H-1B visa reform impact on IT professionals
Issue
Impact
Explanation
Distribution of workers throughout occupations
Section 501 (described in more detail below) provides a commission to recommend the limits and characteristics of workers to be admitted in various employment-based visa categories.
The effectiveness of this provision in the bill depends on what recommendations the commission makes, what methodologies they use to make such decisions, and of course who is appointed to the commission. Results may vary from administration to administration.
Numerical limits of H-1B visas
Section 501 of the bill calls for the creation of a new federal agency called the Commission on Immigration and Labor Markets. This commission will include 7 voting members with no more than 4 from each party, each to serve five year terms. Members are appointed by the President with the consent of the Senate.
This commission will be responsible for delivering an annual report to Congress which will amend quotas based on their findings of market needs for immigrant workers. Congress will have 90 days to vote down their findings, or they will be automatically approved.
It is unclear what will happen to the 65,000 visa cap established in trade agreements. I believe that exemptions from the cap could be rolled into that count for the purpose of satisfying our trade obligations established it GAT.
Although I support a market based solution, the problem with this solution is that the members of the commission are political appointees. The current administration is more friendly than the last towards labor, and we have no idea what to expect from the next administration. Our labor market needs stability and shouldn’t shift every four to eight years when the political winds shift.
I have suggested a methodology based on unemployment and employment rates in each occupation. This methodology would rely on statistics and things that can be measured – not people influenced by powerful politicians with a variety of agendas. Instead of creating yet another federal agency, I would invest money into the Bureau of Labor Statistics and make sure they have the resources to accurately measure the state of our labor market. Those improved statistics could automatically adjust numerical caps.
I would point out that labor groups, such as the AFL-CIO, approve of this measure and requested that it be included. I agree with their motivations, however I don’t see how it is a sustainable solution given the influence of politicians (who are influenced by lobbyists). The appointees to this agency may start out with good intentions and be loaded with pro-labor members, but that can easily change. How would we be protected from anti-labor members of the commission appointed by future administrations?
I cannot fully support this measure because it seems short sighted. I would like to know how Congress plans to address my concerns before I support this part of the legislation.
Outplacement of H-1B workers
Employers may not place, outsource, lease, or otherwise contract for the services of placement of H-1B workers unless they get a waiver from DHS. I would like to see the waiver provision removed from the bill because that looks like a possible loophole. Otherwise, this is a real victory for IT workers.
This provision is one we must fight to preserve because the biggest violators in the IT field are the body shops. They are driving down our wages and displacing American workers. This is a huge slap in their face. It will put many body shops out of business – especially the ones that only pushed H-1B workers.
Fraud prevention and enforcement of the law
Fraud will now be easier to detect and prosecute. Section 541 extends the length of time the Department of Labor has to launch an investigation once a complaint has been filed to 24 months instead of 12 months.
The DOL will conduct annual compliance audits of H-1B employers. 1% of employers must be audited each year and 100% of employers with over 100 employees and more than 15% on H-1b visas must be audited. In reality, this is probably limited to some of the larger consulting and offshoring firms that almost exclusively hire H-1B workers (Like Infosys, Tata, and Wipro). Very few firms fall into the category that must be audited each year. Fortunately, this law will apply to most of the top sponsors of H-1B visas. Findings must be made public.
I believe the law should also include the number of L-1B visa holders to determine if a company employs more than 15% or not. Otherwise, they might simply shift to another visa category as a loophole.
The bill also eliminates “good faith” defense for employers found the have violated LCA rules so they can’t plead ignorance. Also, the USCIS must now report to the DOL information showing that an employer is not complying with labor laws.
Below market wages
This bill requires that the employer certify that they will pay the employee the highest of the following: Locally determined prevailing wage, median average wage for all workers in the occupational classification, or the median wage for skill level 2 in the OES wage survey.
This is an important change to the law that will help reduce the number of workers being paid below market wages. In a recent study by John Miano, there were more H-1B workers in the lowest tier of the wage survey (level 1).
Additionally, employers must offer H-1B workers the same benefits as offered to US workers. This includes insurance plans, retirement plans, cash bonuses, and noncash compensation. Fines are $2000 per violation.
Mobility of workers
I could find no change to the law that makes it easier for H-1B workers to acquire another job. The lack of mobility is one reason that H-1B workers are easily exploited. American workers at least have the ability to “talk with their feet” and not worry about their status as a legal worker in this country.
Lottery system as opposed to merit based system
The intent of the H-1B program was to place the best and brightest into positions that cannot be filled by qualified American workers. Although I dispute the notion that “Americans can’t be found”, at the very least we should reserve these visas for the best applicants and not the random order in which the applications are processed.
This bill does not change the lottery based selection process.
Foreign worker protections
Prior to hiring a foreign worker, employers are responsible for detailing the terms of employment to include location, compensation, job description, period of employment, transportation and housing benefits that will be provided, existence of labor disputes at the place of employment, insurance, education benefits, and information from the DOL about their rights.
Recruitment fees would be barred, and and employers could not violate the terms of a working arrangement without “justification”. It’s not clear what would “justify” terms to be changed.
Employers are now responsible for all transportation costs. This includes from the H-1B worker’s home to the worksite and then back to their residence in their home country when their employment is finished.
Employers would be responsible for their foreign labor contractors and subject to civil remedies as if the employer had committed violations themselves. This provision will make it more risky to outsource to body shops.
Foreign labor contractors known or believed to be involved with violations will be made publicly known in a list maintained by the DOL. Workers seeking relief from violations of their employers will be protected from intimidation, threats, coercion, discharge, or any other discrimination.
Employees will not be able to “waive their rights” to protections under the law; employers could not get off the hook because the employee refuses to testify.
Overall I believe these protections are good. There is room for some improvement such as clarifying what criteria permits changing the terms of employment and who would determine if changes are indeed justified.
American worker protections
Section 503 establishes an online “American Worker Recruit and Match” system for employers to post jobs listings on. Employers must post on the web for 30 days a detailed description of each positions describing the wages, minimum requirements, and process for applying.
Employers must post the job notice in “conspicuous” locations at the place of employment (like the supply closet). This one is always violated – when was the last time you saw an LCA posted?
The notorious “H-1B only” ads would become illegal and it would be illegal to give H-1B workers preference or priority in hiring. I believe this part of the law would make it easier to demonstrate discrimination against American workers and make it easier for us to win a lawsuit against body shops.
Employers of 50 or more employees in the US will not be able to staff their companies with over 50% H-1B workers. Personally, I find this provision useless in most cases except the offshoring firms who rarely hire American workers. I believe the number should be 15% and apply towards all employers.
Employers must offer the job to any qualified US worker who applies and is available for work. Employers must also advertise the job in a publication with the highest circulation in the labor market for at least five consecutive days. They must also advertise based on a recommendation from the local job services in professional, trade, or local minority and ethnic publications.
Most of us have seen the video below detailing how sleazy lawyers subvert the law will view this with some skepticism. Why? Because they will find bogus ways of disqualifying American workers. Watch below and see.
I believe the one thing missing from this bill are penalties for immigration attorneys who behave like the one in this video. The fact the he is still able to practice law today is concerning.
I’m not sure Congress can do anything about sleazy lawyers (after all, many of them were also sleazy lawyers). I’m going to support the employer protections of this bill because they are still valuable worker protections. If anything, the video above demonstrates why we need protections.
Penalties for violating the law.
Those knowingly violating the rules shall be fined and/or imprisoned for up to one year. Multiple violators can be imprisoned for up to three years. Fines are up to $5,000 for any person violating (chapter 2). $10,000 fines may be imposed on employers based on the behavior of their contractors. Employees (H-1B visa holders) may not “waive their rights”, thus letting the employer off the hook.
I find these penalties quite favorable. Companies are no longer able to plead ignorance because they use contractors. I believe these penalties will discourage violators. It also has its sites on the greatest abusers of all – the body shops.
My only complaint here is that monetary damages are not high enough. Although workers will have the ability to sue for damages, the fines are low enough that some companies may take a calculated risk. Let’s face it – for a billion dollar company a $5000 fine is like getting a parking ticket. Hopefully the additional threat of prison discourages violations of the law. The true effectiveness hinges on prosecution of violations.
Recapturing of unused H-1b visas
Section 301 of this bill sets the world-wide level of employment-based immigrant visas (which includes unskilled workers on the H-2b visa) at 290,000 PLUS unused visas from 1992-2009 PLUS unused visas from any prior fiscal year going forward.
I believe this provision is incredibly dangerous and will create flows of workers that exceeds the natural demand. Even if we have a commission as established in section 501, anti-labor commissions appointed by future administration could use these un-captured visas to flood labor markets and harm American workers while satisfying corporate demands. Fortunately I believe there is a solution to this problem:
Section 501 should be amended so that the Congress must vote every year to approve recommendations by the Commission on Immigration and Labor Markets. Currently the recommendations will automatically be adopted if Congress fails to vote. Millions of American jobs are worth the consideration of Congress and will provide a check and balance on the commission. We have virtually no cap on the H-1B visa because of recapture provisions and the last thing we want is a commission that runs on auto-pilot.
Many of the H-1B provisions apply to L-1B visa holders so the next section focuses on provisions specific to the L-1B visa.
Table 2.0 – HR4321 L-1B visa reform impact on IT professionals
Issue
Impact
Explanation
L-1B visa holders are not subject to prevailing wage requirements.
Employers hiring L-1B visa holders for more than a year must follow the same prevailing wage requirements as H-1B visa holders. That would be the highest of the three: local prevailing wage, median average wage for all workers in the occupational classification in that area of employment, and the Level 2 OES wage.
Although this is a drastic improvement over no prevailing wage requirement, I believe that this provision will result in some employers rotating workers out every year in order to avoid paying prevailing wages. I believe the law should apply to all workers irrespective of how long they will work in the United States.
Outplacement of L-1B visa holders
Previous reforms made it more difficult for body shops to place L-1 visa holders onsite. The law allowed third party workers onsite as long as the worker was controlled by their employer and was not essentially temporary hire under the management of the unaffiliated employer.
This bill prevents L-1B visa holders from working at a third party site without a waiver from the DOL.
Compliance
This bill seems to have protections for the employer from investigation, such as requiring prior notice so that they may respond to allegations before an investigation begins. I find this troubling because the element of surprise is lost and the employer has time to cover their tracks.
After a further search, H-1B visa violations are investigated by the DOL and the L-1B violations are investigated by the DHS. It seems odd that two different agencies are responsible for the same type of investigation. This is exactly the type of arrangement that will make it easy for companies to game the system.
Penalties
Willful misrepresentation of fact in an L-1B petition will result in fines of up to $10,000 per violation, employers can be debarred for up to two years, and they may be liable for paying lost wages and benefits.
Displacement of American workers
The L-1B visa was designed to allow company management to work temporarily in the United States. It was originally an executive visa. Today, it is being used as a means of importing cheap labor into the United States.
I believe the criteria for the L-1B visa should limit the program to upper level managers and executives within the organization. There are many computer programmers with no management responsibilities at all who are admitted under the L-1B visa program. Many are “managers” in title only, having no direct reports and no ability to make hiring or purchasing decisions.
So the million dollar question: “Do I support this bill?” The answer is yes, but we must work to make it better. I believe that we should support the overall bill as it pertains to non-immigrant workers but seek two major changes and four minor changes:
Must Have
Section 501 should be amended so that the Congress must vote every year to approve recommendations by the Commission on Immigration and Labor Markets.
The L-1B visa should be used for only managers or executives in an organization as it was originally intended. Computer programmers and “managers in name only” should not be approved for L-1B visas. This visa has become a backdoor to the H-1B visa because it is less restrictive.
Should Have
The DOL should be responsible for investigating L-1B complaints as opposed the the DHS.
The L-1B visa should have the same prevailing wage requirements as the H-1B visa.
Congress should change the law so that it is easier for H-1B workers to change jobs (mobility).
End the H-1B “lottery”. The H-1B visa should be merit based as opposed to a random selection of applications.
Abolish the H-1b "indentured servant" visa; Green cards instead
Over a year ago I had blogged regarding my view that it would make since to abolish the H-1b visa and implement a green card instead. At the time I took heat from some anti-immigration groups who would rather we not allow immigrants into our country. I also have since taken heat from Greg Siskind, an immigration attorney, who somehow feels that providing permanent immigration instead of temporary employer sponsored visas is offensive. Since my first thoughts on a green card instead of the H-1b were published, my view on the subject has been refined some.
Before I get into my thoughts, I first want to address the shallow remarks of Greg Siskind in comments on his blog. Siskind's positions reflect those of a corporate lobbyists, so of course he wants to discredit anyone who stands between corporate objectives of exploitable workers with words like "anti-immigrant".
In my own defense against his untrue comments, I am married to an immigrant, support some form of amnesty, and want to increase protections for immigrants. The tough part about his attacks is that it is very difficult (perhaps impossible) to prove a negative, and it is so easy for him to lob such grenades. I find it disturbing that Siskind would sink that low.
My view is that Greg Siskind is worse than the anti-immigration proponents and that Siskind is in fact anti-immigrant. There is an important distinction between "anti-immigrant" and "anti-immigration". Anti-immigration proponents want to shut out immigrants for a variety of reasons (some not relating to race) and anti-immigrants fall into two categories. The first category is racist, and the second category are exploiters. Greg Siskind clearly represents the interests of those who want to exploit immigrants for financial gain. My point is that a person can support higher levels of immigration and at the same time be anti-immigrant.
I don't believe we need more immigration, but I also think we can support current levels if done right. I believe that we should replace the H-1b visa program with an equal number of merit based green cards (current cap of 85,000 + the 50,000 lottery). The program I have in mind would not be employer sponsored and on the other side of the coin there would be no labor test. There would also be no per-country quota. Family members wouldn't count towards the cap. The goal of a merit based program would be to allow only the best and brightest to qualify for these visas. It would be a race to the top, not the race to the bottom that we see today. Instead of junior level programmers, we would see top scientists, doctors, and inventors. Instead of "first come first serve" it would be "best come first serve".
If you are just now following the H-1b issue, you might be wondering what is wrong with it. Although not perfect, wikipedia actually covers most of the issue. But I'll summarize.
Harm to immigrants - The H-1b is not completely portable. Changing jobs will usually result in the application for a green card to start over. This is a problem because that process can take years. The end result is that immigrants intending to become permanent residents also become captive workers.
- Spouses cannot work.
- If H-1b workers are fired from a job (or quit), they must leave the country unless they are able to quickly find a new job. This gives employers great leverage over them. Simply put, immigrants from third world countries will allow themselves to be exploited so that they can remain in our country. Many sponsoring companies are quite willing to subject them to such exploitation.
Harm to American workers - Companies are using the program to lower wages in high tech occupations. There is a Labor Condition Application (LCA) that companies must submit which is suppose to enforce prevailing wage. Unfortunately, it doesn't work. The average "prevailing wage" in the LCA is $14,000 less than true market wages. Prevailing wages are also defined as much lower than what market wages are, so companies can legally use the program as a means to get a competitive advantage over companies who do not use the program.
- The top supporters of H-1b visas are also offshoring firms, mostly from India. These firms use the program as an enabler of offshoring. These also happen to be the greatest exploiters of their H-1b employees.
- Because of diminishing opportunities in software engineering, we now see a decline in Computer Science graduates in the United States. Students are voting with their major, and because of current practices they are choosing to go into other careers. In short, the H-1b is harming the labor market and discouraging entry into technology careers. This is not good for the future of our country since it is important that we lead in technology.
Although there are other problems with the H-1b, those seem to top the list. So, how would a green card instead of the H-1b help solve these problems?
First, immigrants can change jobs at will without penalty and they are no longer sponsored by a company - thus no strings attached. This benefits both immigrants and American workers. Immigrants aren't so easily exploited; as a result they can command higher salaries. Higher salaries relieve pressure on American workers.
Second, we will get a broader skill base. Instead of junior level programmers displacing the scientist who can help cure disease, the opposite will occur.
Finally, this will relieve pressure on our own college grads and entry level workers pursuing IT related occupations, which currently have the lion's share of visas. We will see a return of students to computer science occupations - a good thing for our country's ability to compete globally.
There is a reason we call the H-1b an indentured servant visa. I recently watched the movie "Amazing Grace" and I was amazed at how the same arguments used in support of slavery are now being used in support of the H-1b visa. Greg Siskind represents our modern day version of slave traders. Sure the H-1b isn't on the same moral level as slavery, but it follows the same pattern of exploitation against human beings. It makes one wonder if during the years of slavery, there was a lawyer like Greg Siskind that could be called to spin the practice in a positive way.
You don't need to wonder what thoughts Greg Siskind keeps to himself to know if he is anti-immigrant or not. You need only look at his pattern of exploitation to realize that he is in the business of exploitation, and thus anti-immigrant. I believe his actions to be worse than overt displays of racism. Racists act out of ignorance. They can "plead stupid". Greg Siskind knowingly helps in the exploitation of people for profit. He simply cannot plea ignorance.
Greg Siskind calling me anti-immigrant is like a slave trader calling the abolitionist anti-African. I'm sure in their twisted minds, they may have thought they were actually doing the slaves a favor. I wonder if Siskind thinks the same way regarding the people he helps to exploit.
According to analysis by the Bureau of Labor Statistics (BLS), in Q3 2006 American Software Engineers, Computer Scientists and Systems Analysts have lost jobs this year over last year - a net loss of 93,000. This is amazing given recent claims from the IT industry and lobbyists claim they are unable to find qualified IT professionals in the United States.
What is even more amazing is that the Commerce Department continues to release overly optimistic reports supporting the claims of the IT industry. Overly optimistic is being kind - they are in fact lying. The best employment data available proves that American software professionals are losing jobs. This is a direct result of our government not representing the interests of the middle class.
It is no wonder that American students are turning away from Computer Science majors. This is an urgent issue. In order for America to remain competitive in the global market, we must be the best when it comes to software engineering and innovation. Our government, and private enterprise in their rush to offshore - are failing us.
The New York Times is once again showing their bias, releasing an H-1b related article without as much of a mention that there is opposition from both American and Indian labor groups - and for good reason.
The tech companies want access to an exploitable class of labor; hence their desire to raise the cap on H-1b visas. These visas are a favorite for Indian tech companies like Infosys and Tata - who offshore software service projects to India. What makes them popular is that the vast majority of H-1b workers are paid well below average wages when compared to their American counterparts, they are prevented from changing jobs, and the workers are reliant upon the continued sponsorship of the company they work for (or they can be deported).
According to the GAO, the H-1b program is prone to fraud and abuse because there are very few safeguards in place.
American workers are also opposing this visa because the cap is not based on job creation in an occupation. While IT workers were losing hundreds of thousands of jobs earlier this decade, the indentured servant cap was actually raised. There are no enforced protections for the American workforce.
Tech lobbyists will tell you this visa is for the best and brightest. If tech companies were serious about attracting the best and brightest, they would seek a more competitive program. They would ask that standards be raised.
If we truly want the best and brightest the H-1b program would be limited to people who have advanced degrees and at least five years of experience. Salaries should be in line with that of American workers. Numbers should be based upon job growth - not arbitrary caps. Guest workers should not be bound to a sponsoring company - they should be workers on the free market.
Otherwise let's face it. This is an indentured servant program designed to attract cheap labor. As an American I think it wrong to exploit people. As a worker, I don't want to be competing in the same job market as an exploited class of labor. It harms our own salaries and opportunities.
To conclude, I am posting EVIDENCE of the abuse of H-1b workers by a company in Maryland called Axiom. By following the link you will discover what I am told is a typical contract between "body shops" and H-1b visa holders. The first page is a job offer (notice the below average salary for a software engineer) and the following pages are what I call an indentured servant contract. I have blacked out the name to protect the victim. This contract was released to me by an Indian activist seeking fair treatment of Indian workers. Here are some key points when reading over the contract:
Axiom will pay the costs to file a permanent resident (greencard) application - seems nice enough.
Axiom can terminate contract and withdraw greencard application at any time, for any reason. Ok, most contracts seem to be weighted in favor of corporations these days. No surprise here.
Visa applicants salary will be 65% of the hourly bill rate that the client pays. Hmm, so these guys simply sponsor a visa and take a 35% windfall on earnings? In some cases - not sure of this one. I know one worker who finds his own contracts but still pays the "sponsor" (or should we say master) a percentage just for the sponsorship.
Now here is where it gets heavy handed. Should the applicant leave Axiom or be terminated within 12 months of starting the applicant will be liable for $8000 in damages.
Should the applicant change jobs within 12 months of gaining their greencard - Axiom deems this FRAUD and will notify the USCIS. FYI, this is illegal - I consider it threatening in nature.
Applicant is an at-will employee (well, at the will of the company). I think we have established this part by now.
Terms of this agreement are confidential. Don't tell anyone!!! BTW - if you are in an unfair contract, please come forward. Especially if you already have your greencard. Despite the threats, they have no more control of you.
I would like to mention one more thing. Aside from contractual agreements that a company may require the H-1b worker to sign (like the one described above) the immigration process is also flawed. H-1b workers are allowed to apply for permanent residence (Axiom can help if you sign your life away). Unfortunately, if the worker changes jobs the process resets and they are sent to the back of the line, which can cost them years of waiting for their permanent residence. Many give up first and return to their home country.
In short, the H-1b workers catch hell from two sources: the employer who controls their very ability to live in this country, and the flawed immigration policy that sends them to the back of the line if they seek a better job.
The bottom line is this - if you support the exploitation of immigrant (or non-immigrant) workers, ask Congress to raise the H-1b cap. If you are opposed to what I call "slavery-light" then ask Congress to protect both American and foreign workers from this harmful program.
Forming coalitions between American workers and H-1b holders
I resigned this week from the board of directors of the Programmers Guild. Essentially, it was over the policy to not allow guest workers to join. The policy is in place to "prevent foreign workers from taking over". I personally believe the policy is a result of paranoid thinking and see little to no threat of some anti-labor or pro-globalization group from taking over. I do see the policy as counter-productive and a lost opportunity to become a real political force - as opposed to a fringe group. Obviously this isn't the only reason I resigned, and I am not going to get into details as that wouldn't be very professional.
Although an unrealistically high number of guest workers flooded the labor markets and harmed American workers (especially from 2001-2003), guest workers on these visas are also harmed. They are prevented from changing jobs at will, some are contractually bound to the companies, and the majority are paid below average wages and most work longer hours. In short, they are exploited. American workers aren't the only victims is all that I am saying.
I have concluded that a technology based professional organization that invites all who work in the United States is needed - that isn't afraid to tackle these issues. Perhaps the IEEE-USA is that organization?
The IEEE-USA recognizes the two sides to this issue. They believe that we need a sustainable number of guest workers and that the program shouldn't replace American workers. They also recognize that we should treat our immigrant or guest workers better and more fairly.
Together American technology workers and foreign guest workers can be a political force and get a sustainable and fair system in place. Apart, we all lose to the special interests and IT lobbyist groups like the ITAA.
Hopefully the Programmers Guild will one day get with the program, or another organization will step up to the plate. The Guild has done some very positive things this year and I have confidence that if they hold elections some new leaders will step up to the plate. There have not been elections in the past two years, which are required to be held each year. I am a bit puzzled as to why members haven't demanded elections.
The Commerce Department has finally released an offshoring study that it originally refused to release publicly. FOIA petitions were even denied and now career researchers are being layed off as reward for releasing non-biased research on the matter.
The Commerce Department's Office of Technology Policy (OTP), while under the last president Phil Bond, refused to release the report and instead released a 12 page executive summary that even the report's researchers dispute the accuracy of.
This summary glossed over the problems of offshoring and focused on the positive things. Phil Bond has since become the President of the ITAA - an now works for the largest IT lobbyist firm in the United States. That is his reward for betraying American technology workers and pushing his political agenda while heading the Office of Technology Policy.
According to Professor Norman Matloff in his newsletter:
Through both the Clinton and Bush administrations, the Dept. of Commercehas been remarkably even-handed in issues relating the the industry'sclaims of a tech labor shortage, and the offshoring issue. Remarkably, this is largely due to two career researchers in DOC, and their principled insistence on doing objective analyses. Even more remarkably, their political appointee bosses have usually stood by them,albeit with occasional blips. You can read the history of this at
The 360-page version of the report describes the types of IT services and software jobs that are being outsourced. It states the obvious: that Indian outsourcing companies "are expanding staff annually by the thousands." The report describes the reasons for the trend including the fact that "venture capitalists are now encouraging U.S. IT start-ups to use lower-cost offshore destinations for software development to reduce the 'cash burn rate.' "
That document is quite different from the original 12-page summary, and it is apparent why Bush's political appointees so vehemently refused its release. The administration "was scared of anything having to do with outsourcing," says one source who is familiar with the report's travails. The Bush team "could not afford even a discussion" of the outsourcing issue. "The report speaks for itself," said Ben Wu, who was in charge of the report's demise while at the Commerce Department's Technology Administration. Wu now works in the state of Maryland's economic development organization. Phil Bond, who was in charge of the Technology Administration at the time, said he had nothing to do with re-writing the report. He has since been named president and CEO of the Information Technology Association of America (ITAA), an organization that took the lead in Washington in defending the practice of offshore outsourcing of IT jobs.
I am forced to call a spade a spade. This is none other than corruption at the highest levels of our government. The OTP has been infiltrated by corporate lobbyists and even worse will be firing the career DOC researchers responsible for reporting the facts:
"what was produced and provided by the Commerce Department in September 2005 was a 12-page document bearing a July 2004 publication date that bore little resemblance to the work done by analysts at the Technology Administration, all of whom have recently been told they will be laid off due to severe budget cuts for the agency and the issuance of a reduction in force (RIF)." (manufacturingnews.com)
We must demand an investigation into this matter. These honest career researchers should not lose their jobs because of corruption. More on this as news unfolds.
Clearly the weakening value of the Rupee is benefiting companies in India while harming American technology workers and domestic businesses. The following article from an Indian news outlet, rediff.com, details the windfall for Indian companies.
What response should the United States have to this problem?
Infotech companies are making the most of a depreciating rupee and have systems in place to hedge the risk inherent in forex earnings.
With over 90 per cent of the revenues of Indian IT companies coming from clients abroad, the rupee's downward trend over the past few quarters is boosting the power-packed results of the sector.
Since IT companies derive a bulk of their revenues in dollars, rupee depreciation adds to their bottom line.
Taking into account the expenses incurred in dollars owing to on-site operations, a one per cent fall in the rupee usually results in a 0.3-0.4 per cent gain in the operating margins of most IT companies, and vice-versa.
According to the Indian Council for Research on International Economic Relations in a 2003 working paper, the Rupee is essentially pegged to the US Dollar. They describe it as a "highly managed" currency that is subject to intervention by the Reserve Bank of India (RBI).
According to the paper "India has been in a homogeneous regime of low exchange rate flexibility from 1979 onwards."
American economists have long said that India manipulates its currency to one degree or another, however Indian economists appear to say the same thing. Given that there is no dispute regarding the artificially low value of the Indian Rupee - as the Indian economy has grown double digit percentage points while the Rupee remains flat - we should demand one of two things immediately:
The President of the United States should demand that India stop manipulating their currency. Action will be seen in a rapid rise in the regime once it is freely traded. If India does not stop their unfair currency practices, resulting in the loss of American high tech jobs, we should impose a temporary duty of 35% that increases at the rate of economic growth of the Indian economy - until such time that India stops manipulating their currency.
According to many IT trade magazines the savings gained by sending software development to India is around 20-30%. A fair trading regime would balance the playing field and the best company would get the business - not the company most able to exploit an unfair currency regime.
The United States' lack of intervention in this clearly unfair relationship is causing millions of high-value jobs to be be created offshore. President Bush should not allow India to continue this unfair manipulation of the Rupee; to do so expedites the offshoring of American jobs.
If you believe in free trade, you should also believe in fair trade. Manipulating a currency is no different than dumping and is an unfair trading relationship by definition. Is it too much to ask that our trading partners play by the rules? And if they don't play by the rules, is it too much to ask that our own government intervene on our behalf?
My sons aren't quite old enough to ponder this question, but if they were what would I tell them? As things stand right now, I would encourage them not to pursue Computer Sciences. I have several reasons:
1) Software employment has stagnated the past five years and appears to have slow growth and higher unemployment than other professions like accounting and healthcare 2) Corporations have increased offshoring of software jobs and plan to continue this pattern 3) Software jobs that remain in the United States are often given to lower paid and exploited foreign workers on H-1b or L1 visas; Americans face foreign competition here and abroad 4) Politicians seem inclined to reduce trade barriers with third world countries which will make it even easier and more cost effective to move production overseas 5) Politicians have rolled back labor protections for software developers; they are specifically exempt from overtime laws and the vast majority are not represented by organized labor
If I were entering college now I would be more inclined to pursue an occupation with a brighter future. If you are considering a Computer Science degree, you should first ask your Congress person what they will do to protect the occupation.
Fresh college graduates are finding it increasingly difficult to gain entry-level employment in software occupations. Our unsustainable trade, immigration, and labor policies are to blame.
And ITAA press release expresses their desire to raise size standards for the classification of small businesses. This federal government offers incentives for contracts to go to smaller companies as the vast majority of contracts go to larger corporations as it stands. The ITAA wishes to more than double size standards for small businesses - from the current standard of $23 million to $50 million USD.
The government currently sets aside contracts for small businesses. I don't think the government should raise the number of small business contracts awarded by relaxing the standards. The ITAA is wrong on this issue and such a measure will harm truly small businesses who need protections from the goliaths dominating this market.
Instead of relaxing standards, the government should require even more contracts be set aside for small business. The ITAA is hardly representative of such a group.
Electronic Arts (EA) settled for $14.9 million USD with programmers of various experience levels. This would suggest that yes, programmers are entitled to overtime and most especially in California where their rights to overtime are explicitly protected in state law.
Many programmers in the United States are not paid overtime - lawyers for United Employees Law Group are now asking American programmers to submit claims if they are not being paid overtime. Even though federal law may not protect overtime rights, many state laws do. According to this lawfirm, most states require overtime to be paid and do not classify programmers as management staff (thus exempting them from overtime).
What do you think - are programmers entitled to overtime?
OK, so this has nothing to do with technology. I know.
Ken Lay, the former Enron CEO and convicted felon who was pivotal in robbing Enron employees of billions died while vacationing in Aspen Colorado. There is no justice in this world. Before spending a single day in prison, Ken Lay checked out permanently escaping justice.
Anything left in the Lay estate should be siezed and awarded to Enron retirees. Entirely illegal, but that would be justice. Please feel free to vent here. In this case it looks like Lay got off scott free and there is nothing we can do about it.
Blogspot has some limitations when it comes to formatting HTML. Because of this, you are encouraged to reference the webpage of this blog here: http://www.freedomcast.com/h1b/H1bSham.html.
77% of H-1b Applications are Certified by the DOL below the average prevailing wages
Normally I detail what an H-1b visa is in my writings, however the reader of this is presumed to know that already. Please seek information on Wikipedia or other sources if you are unfamiliar with the subject and then refer back to these statistics so that you understand who is impacted by it.
In 2005 there were 279,719 LCAs certified by the Department of Labor for Programmer and Programmer/Analyst occupations. The average salary for these jobs going to foreign guest workers stands at $53,024. Median annual earnings of America computer programmers was $62,890 in May 2004; although the average rose slightly in 2005 we will use the more conservative 2004 averages for these purposes.
What this means is that the H-1b program has enabled companies to underpay programmers by 15.6 percent or $9,866 each year. I am a software developer and have the LCA database stored on my personal server, it was made available by the US Department of Labor. Running a simple query returned these startling results.
According to the DOL starting salary ranges are as follows for American programmers in 2004:
What this proves is that the H-1b program is being used for labor arbitrage - simply put companies are flooding the labor markets in an effort to lower labor costs. 46% percent of all H-1b programmers are certified by the Department of Labor for pay BELOW $50,000 each year. Additionally, 77% of programmers are certified for wages below the average prevailing wage in this occupation.
This has been driven by deception from industry lobbyists like the ITAA. They say there have been shortages of programmers. In fact, programmers have less jobs as they did in the year 2000. Many people still may believe that there is a shortage of programmers because of misinformation. I produced a paper that should dispell this myth: http://www.freedomcast.com/h1b/NIVSolution2006.pdf.
Another myth is that H-1b visas fill hard to find jobs. That may be true in select occupations, however the vast majority of H-1b visas fill jobs where there are not shortages of skilled labor, just shortages of cheap labor. These numbers suggest otherwise:
Total LCA Applications in 2005
Occupation...............................Applications.......Percent of Total (Rounded) Programmer.........................................279,719.....................46% Non-Programmer IT Jobs.................132,627.....................22% Non-IT Jobs.........................................199,466.....................33%
The reason I focus on Programmer jobs is because the vast majority of applications is for these jobs - as seen above. Many people ask why the Programmers Guild seems to just focus on this issue, well now you know. 68% of all H-1b visa applications are for IT-related positions so it is only natural that we take a lead on this issue.
One solution to this problem, since so many companies are looking for cheap labor as opposed to highly skilled labor, is to set the a minimum wage at the average. If the H-1b becomes a visa designed to deliver quality workers as opposed to a large number of low paid workers it will meet less opposition. In addition to fair pay for the workers on H-1b visas, we must prevent American workers from being displaced. Although my other paper details such a method, there are many factors to consider.
If the goal of the H-1b program is to replace American workers and provide corporations with exploitable and cheap labor, then it is working just fine. If the goal is to provide corporations with truly high skilled labor, then it is falling short. Our proposals work towards that goal and should be supported by any legitimate company with a legitimate need. Those opposing us are most likely abusers of the system.
Here was the query run so everyone knows this is legit and open. FYI Software Engineer positions were not a part of this result set. Companies claim they need "software engineers" - so why are over 2/3 of the IT jobs just for "PROGRAMMERS" ???
selectsum(nbr_immigrants) total, truncate(avg(wage_rate_1),2) AveragePay from lca where rate_per_1 = 'Year' and Approval_Status = 'Certified' and job_code like ('03%') anducase(job_title) like ('%PROGRAMMER%') Order by total;
Replacing Harris Miller as "Enemy #1" of IT workers at the ITAA, an IT industry association intent on harming IT workers through labor arbitrage, is Phillip Bond. He is a Bush insider and and just quit his job as head of the Office of Technology Policy (OTP) at the Commerce Department.
This is truly troublesome. It puts into question the independence of the OTP. This is clearly an unholy marriage between industry and government. The OTP should distance itself from the ITAA and this sad and irresponsible move.
All I can say is that Bush Administration officials have been a sad a cruel joke once again. But is anyone really surprised when a Bush insider becomes an industry lobbyist? The OTP by the way is the same organization claiming millions of IT jobs would be created, but then had to eat their words when we actually lost jobs. They have always had close ties to industry and no ties to IT professionals. Amazing - they claim to want to create jobs but not once have they spoken to labor groups about labor specific issues. Of course they always find time to meet with industry lobby groups.
Shame on them all! This government is suppose to be of and for the people. Instead, the OTP represents a sellout of our national interests. As Homer Simpson would say: BOOOOOOOH!!!
The only question now is who's image to place on my dart board now. Does Harris Miller come down? Not just yet. I'm still waiting to see his next move.
In one of our most agressive moves to combat discrimination, the Programmers Guild has today filed over 300 complaints with the US Department of Justice for discriminatory ads. FYI I am on the board of directors of the non-profit Programmers Guild. Here is what ComputerWorld has to say about the complaints:
http://www.computerworld.com/action/article.do?command=viewArticleBasic&articleId=9001285 June 19, 2006 (Computerworld) -- The Programmers Guild is filing a stack of complaints with the U.S. Department of Justice against some 300 IT employers it says are discriminating against U.S. citizens and permanent residents by placing advertisements that specifically seek "H-1B only" visa holders or workers who have student or L-1 visas.
John Miano, founder of the Summit, N.J.-based Programmers Guild, said today that he has collected some 1,500 IT job advertisements in the past six weeks from a variety of online jobs boards that express preference for hiring visa holders. Miano said the practice is widespread because "for the most part, there isn't much enforcement going on. So we are trying to do what we can do to bring private enforcement against these employers."
Miano said H-1B workers are in demand because "they are cheap and they make good slave labor." The guild has filed about 100 complaints with the DOJ's Office of Special Counsel for Immigration-Related Discrimination, and it plans to file another 200.
It's not to difficult to find IT job advertisements that seek specific skills, and H-1B opponents have long circulated examples of these advertisements on mailing lists.
For instance, in a search on the job board run by Dice Inc., iGate Mastech, a Pittsburgh-based IT staffing agency with about 1,000 employees, has an advertisement for eight Java developers with three to five years of Java development experience. The ad says: "Only looking for H-1B visas and should be willing to transfer."
