Date: Mon, 2 Feb 2009 16:31:26 -0800 From: Norm Matloff To: Norm Matloff Subject: CW editor outraged at outrage To: H-1B/L-1/offshoring e-newsletter Enclosed below is an editorial by Computerworld editor Don Tennant. Though his main point is that many H-1B critics should drop their in-your-face attitudes, his subtext is that they are exaggerating the extent of the problem. Tennant is a good guy in my book. I enjoyed talking to him at a conference at the UCLA Anderson School of Management about a year ago, at which he did a great job of moderating a panel discussion that was, to say the least, contentious. See my posting on the discussion at http://heather.cs.ucdavis.edu/Archive/AronDebate.txt Nevertheless, we all have our blind spots, and I have the sense that Tennant's is that he's viewing the H-1B critics as protectionists who want to block workers superior to them in talent from entering the U.S. labor market. I too support bringing in "the best and the brightest" from around the world, but as I've shown before, only a small percentage of H-1Bs are in that league. Tennant's view that most are in that league is greatly clouding his vision on this issue. At any rate, he's way off base in his piece below. Though the H-1B critics do indeed use language that I believe may be hurting their cause, there is nothing "anti-foreign" about it. As Tennant notes, people do get emotional when they find their livelihood threatened. What Tennant is missing is that it's the loss of livelihood they're worked up about, not the foreignness of the workers who are replacing them. (As if they wouldn't object to being replaced in their jobs by Americans, an absurd notion.) I communicate with H-1B critics every day, and I rarely (though not never) see xenophobic or racist remarks. Indeed, a techies.com survey in 2001 found that "Prejudice is not seen as a major problem...U.S. tech workers don't resent foreign workers themselves, the survey found, but are more likely to blame employers for any problems." What's most interesting about Tennant's piece is his citing of the infamous Cohen & Grigsby videos, in which the law firm shows how to exploit deep legal loopholes in the laws to avoid hiring Americans (in the case of employment-based green cards) and to avoid paying market wages (in the cases of both green cards and H-1B visas). Tennant asks, "which is more objectionable -- a slimy lawyer or a creepy stalker?" I don't approve of stalking, even in fantasy, but Tennant is making a false comparison, comparing greed to desperation, not very fair. Far more important, though, is Tennant's implicit claim that Cohen & Grigsby is a rogue law firm, not representative of standard practice in the profession. Tennant is dead wrong on this point. Cohen & Grigsby is thoroughly mainstream in this regard. For instance, readers of this e-newsletter know the outrageous comments by a well-known immigration attorney in a wide-circulation legal newsletter: "Employers who favor aliens have an arsenal of legal means to reject all U.S. workers who apply" (Joel Stewart, "Legal Rejection of U.S. Workers," Immigration Daily, April 24, 2000; available at www.ilw.com/articles/2000,0424-Stewart.shtm). See also Stewart's "Dear Abby"-style help column for employers, at http://www.ilw.com/articles/2006,0606-citations.shtm in which he advises an employer how to hire a foreign worker instead of an American applicant, even though the American "appears qualified and has good references." Stewart is a prominent leader in the immigration law field, who literally "wrote the book" on the U.S. recruitment portion of the green card process, "The PERM Book," a standard reference in the field. Recall the controversy involving Cisco last year. Their ad stated that only U.S. citizens and permanent residents could apply--but applications were routed to Cisco's immigration law firm rather than to HR, so that the law firm could figure out ways to reject the Americans. (See the files whose names begin with "Fragomen" in http://heather.cs.ucdavis.edu/Archive) Cisco's law firm, Fragomen, Del Rey, Bernsen & Loewy, LLP, is the largest in the nation. The founder's bio notes that he has served as chief counsel on the U.S. House Immigration Subcommittee, was an adjunct professor at the NYU School of Law, serves on the board of the immigration think tank, the Center for Migration Studies, and so on. You can't get any more mainstream than Fragomen or his firm, and yet they too operate like Cohen & Grigsby, in Tennant's words, "slimy" (though again, in full compliance with the law, as confirmed by DOL after the Cisco incident). Tennant should hardly be surprised at any of this. After all, a good immigration lawyer is no more likely to refrain from using loopholes in H-1B/green card law than a good tax lawyer is to pass up loopholes in the tax code. So, no, C&G is not a rogue law firm at all. On the contrary, they are a pillar of the legal community, representing lots of household name firms. Lebowitz is a professor at the University of Pittsburgh School of Law. And their practices shown in the outrageous videos are standard for the industry. Norm http://www.computerworld.com/action/article.do?command=viewArticleBasic&articleId=333140 Computerworld Editor's Note: We're better than antiforeign hatred makes us sound By Don Tennant February 2, 2009 (Computerworld) CNN called it "Bloody Monday." On Jan. 26, more than 71,400 jobs were lost as massive cuts were announced by manufacturing and service companies. Yet even that did little to distract the attention of some who saw a darker cloud hanging over Microsoft's announcement several days earlier that it was cutting 5,000 jobs. It was on Bloody Monday that Computerworld's Patrick Thibodeau reported that an undisclosed number of H-1B visa holders would be among those Microsoft workers who were losing their jobs. Microsoft would only say that the number of foreign workers affected was "significant." The dark cloud burst when there was no proclamation by Microsoft that H-1B visa holders would be the first to go. Companies are under no legal obligation to lay off foreign workers ahead of U.S. workers, and that didn't sit well with many of our readers. As is the case whenever H-1B visas are discussed, emotions ran high among readers who commented on Thibodeau's story. But the antiforeigner rhetoric was even more intense than usual, and there was a strong tendency to equate Microsoft with a demonic image of Bill Gates. "Send those people home!" one reader hissed. "If our economy ever recovers, we still don't need H-1B people. We need [American citizens]! Bill Gates and Microsoft, and other firms, have made a circus out of H-1B." If the H-1B program is a circus, there's plenty of blame to be shared. No doubt some companies abuse the program, and no doubt the government has failed to take adequate measures to prevent those abuses. But what's most troubling is the garish sideshow performed by those whose hateful nationalism (as opposed to honorable patriotism) targets the H-1B program. A comment that was particularly alarming came from a reader who brought up the 2007 case of the YouTube video in which attorney Lawrence Lebowitz provided advice on how to fill job vacancies with foreign workers. "Our goal is clearly not to find a qualified and interested U.S. worker," Lebowitz proclaimed. The outlandish demonstration of intent to abuse the system was disgusting. But not as disgusting as the reader's comment. In a posting with the subject line "Traitors," the anonymous reader wrote that he had found Lebowitz's e-mail address. Yet that wasn't enough. "Anyone know his home address so I can ask him PERSONALLY why he is a traitor to the United States?" the reader asked. "How about where he eats, what gym he goes to, where he plays golf, etc.? I would like to post all this information on a Web site containing this type of information on H-1B supporters and other treasonous acts." I'm no fan of Lebowitz, but which is more objectionable -- a slimy lawyer or a creepy stalker? It was amid all this gloom that I happened to meet with Charles Johnson, general manager of Microsoft's worldwide manufacturing sector business. We talked about the job losses and what Microsoft is doing to help manufacturers cut costs. When I brought up the H-1B issue, Johnson put it in a sensible perspective. "We're a virtual company -- I've hired people who live everywhere," he said, referring to a few hires in China and Singapore. "One of them I would love to have moved to Redmond, but the value he's providing there is even greater, especially during the economic downturn, because he has real insights -- doesn't have an 'everything's built in Redmond' mentality." Anyone whose knee-jerk reaction is to write Johnson off as another Microsoft demon who's giving jobs to foreigners and doesn't have America's best interests at heart should consider this: He's a West Point graduate who was deployed to Desert Storm in 1990 as a platoon leader in the 82nd Airborne. He was awarded a Bronze Star. Foreign workers aren't the enemy, nor are those who hire them. The enemy is the sense of hopelessness that triggers misplaced blame in difficult times. We've always been stronger and braver than that. Let's not lose those attributes when we need them the most. Don Tennant is Computerworld's senior editor-at-large. You can contact him at don_tennantcomputerworld.com, and visit his blog at http://blogs.computerworld.com/tennant.