Rebuttal to erroneous H-1b Article

http://www.sfvbj.com/weekly_article_pay.asp?aID=136984

Posted date: 5/11/2009

LETTER TO THE EDITOR
The April 13 article “Exploitation Claims Lead to Debate on H-1B Work Visas” contained several misleading claims.

Immigration attorney Ken Choi claimed that American workers are “well protected” by labor certification. On the contrary the key beneficiaries of labor certification are immigration attorneys who lobby to expand their $100 million dollar industry of filling U.S. jobs with foreign workers.[1]

Section F of Form ETA 9035 “Labor Condition Application for Nonimmigrant Workers,” which can be found on the Department of Labor website,[2] provides the four labor certification conditions: 1) Pay the prevailing wage; 2) Provide working conditions that do not affect the working conditions of similar workers; 3) No strike or lockout within the occupational classification; 4) Post notice of the application to sponsor H-1B workers.

Notably absent are requirements to first recruit American workers and to hire American workers when they are available.

ETA Form 9035 contains a misleading section F-1 which asks whether the employer is “H-1B Dependent” or a “Willful Violator.” Less than one percent of employers of H-1B workers fall into these categories. Even for that one percent, there is option “C” in which even these employers need not recruit Americans as long as they only sponsor “exempt nonimmigrants” – where “exempt” means paid at least $60,000 or holding at least a Master’s degree.[3]

Thus a consulting firm comprised exclusively of 1,000 H-1B workers holding MS degrees who earn $42,000 would not be required to recruit an American for their next job opening. This is not a “loophole” – this is legal.

Foreign consulting firms comprise the top users of H-1b visas. These “H-1B” consulting firms harm not only U.S. workers but also U.S. consulting firms. In 2006 Tata Consultancy Services (TCS) admitted that to a competitive advantage because of its extensive use of H-1B foreign workers. “Our wage per employee is 20-25 per cent less than U.S. wages for a similar employee.” [4]

Senators Dick Durbin (D-Ill.) and Charles Grassley (R-Iowa) recently introduced “The H-1B and L-1 Visa Fraud & Prevention Act of 2009.” They charge that the H-1B program “is plagued with fraud and abuse and is now a vehicle for outsourcing that deprives qualified American workers of their jobs.”[5] Durbin said in a statement that the “H-1B visa program should complement the U.S. workforce, not replace it.”[6]

Among the provisions of the Bill would be to limit H-1b workers to 50% of total headcount. TCS objects that forcing them to hire Americans would mean “more pressure on the bottom line.”[7]

While the H-1B program displaces many Americans from the job market, H-1B also harms employed tech workers. A recent study by researchers at New York University’s and the University of Pennsylvania’s business schools found that H-1B is causing a 5% to 6% drop in wages for computer programmers, systems analysts and software engineers.

On the heels of this study, Alan Greenspan calls for raising the H-1B cap – for the intent of further eroding U.S. wages. Greenspan deems experienced U.S. tech workers who earn around $60k to $80k as “privilege elite” and advocates raising the H-1B quota to reduce the “income inequality” compared to the wages of unskilled illegal immigrants.[8]

H-1b proponents claim that U.S. workers are protected by the “prevailing wage” requirement. Most H-1B are filed at “level one” prevailing wage, which is 17th percentile of what average Americans earn. The level one prevailing wage for the job of “reporter” in the Los Angeles area is $13.48 hour.[9] How many reporters at the LA Times would deem that a sufficient wage barrier to deter displacements of Americans with foreign workers?

Analogous to how government backed zero-down mortgages destroyed the housing market, a key deterrent to American students pursuing tech degrees is that for the past two decades the government’s H-1B program has perverted the natural supply/demand forces that drive career choices. Key proponents of an H-1b increase are Google, Oracle, and Microsoft. Yet these companies receive thousands of resumes each month, both from top U.S. grads and from seasoned professionals. Most of these resumes get summarily discarded without even being reviewed by a hiring manager.

The verdict is in: The H-1B program is harming U.S. tech workers. The members of the Programmers Guild do not believe it is a proper role of government to intentionally drive down wages. Americans should have priority for American jobs, and H-1B should only be approved in those rare cases were no qualified American can be found.

Kim Berry
President, Programmers Guild
The Programmers Guild advocates for the interests of U.S. computer programmers and other tech workers.

REFERENCES

[1] http://cohenlaw.com/news-articles-57.html – this is the same law firm that created the video training “how NOT to hire a U.S. worker: http://www.youtube.com/programmersguild  (351,000 views)http://www.programmersguild.org/docs/youtube_media.html

In general AILA (American Immigration Lawyers Association) is a key lobbyist for expansion of all levels of immigration, including H-1b program.

[2] http://www.foreignlaborcert.doleta.gov/pdf/eta9035v50.pdf

[3] “exempt nonimmigrant” defined here: http://www.dol.gov/dol/allcfr/Title_20/Part_655/20CFR655.737.htm  (20 CFR 655.737)

[4] http://www.hindustantimes.com/StoryPage/StoryPage.aspx?id=cda81c51-7247-4c2a-8e36-2414c5f9686c&ParentID=ea3188ae-1933-4afd-81e1-a89d979dbeee&&Headline=H-1B+visa+holders+paid+less+in+US

[5] http://www.businessweek.com/bwdaily/dnflash/content/apr2009/db20090423_219068.htm

[6] http://www.businessweek.com/bwdaily/dnflash/content/apr2009/db20090423_219068.htm

[7] http://profit.ndtv.com/2009/04/27204103/H1B-visa-curbs-to-force-more.html

[8] http://www.computerworld.com/action/article.do?command=viewArticleBasic&articleId=9132438

[9] Go here and drill down to “Los Angeles”:

http://www.flcdatacenter.com/OesWizardStart.aspx

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