To: H-1B/L-1/offshoring e-newsletter Thu Feb 21 12:51:17 PST 2013 Yesterday NPR ran an otherwise-excellent piece on H-1B that contained one horrible error: It stated the H-1B employers must give hiring priority to Americans (U.S. citizens and permanent residents). The show was flooded with complaints about the error, so it ran a followup story today, at http://www.npr.org/2013/02/21/172566332/follow-report-on-h-1b-visa-story Donna Conroy was quoted, as was prominent immigration attorney Angelo Paparelli. The content of the show goes right to the core of H-1B and green card issues, and as such is very relevant to the current interest on the Hill toward these issues. Please bear with me, because I will give a full solution to the H-1B and green card abuse problems here. Donna made an interesting point, though one that I think needs modification. Here is the exchange between her and reporter Martin Kaste: KASTE: Conroy used to work in IT. Now she runs Bright Future Jobs, a group opposed to what it considers corporate abuse of work visas. The secret, as she calls it, is this: technicalities in the law allow the vast majority of employers to skip the good faith recruiting rule. But a lot of people make the same assumption. I did. And Conroy says it's time the law caught up. CONROY: If everybody in America thinks that the H1-B program requires employers to seek local talent first and hire equally or better qualified Americans, then why don't we just fix the law to match what we believe is true? Needless to say, Congress is not going to legislate on the basis of the populace believes is true. But maybe it could be convinced to enact what IT ITSELF believes is true. I've seen countless letters to constituents in which senators and representatives state that H-1B employers are required to give hiring priority to Americans. (Rob Sanchez used to have a collection of them on his Web site.) Indeed, these senators and representatives treat such a requirement as a good thing, intending to assure American workers that Congress has their interests at heart. Given that, Congress should be willing to enact what they already think is there...right? Of course, that is probably not going to happen, because people like Angelo (who by the way is a very nice guy) will counter as he did on the show: ANGELO PAPARELLI: These hires have to happen very quickly. The job imperatives that the customers impose are so time-sensitive, that it can't work. This has been a favorite argument of the industry lobbyists--"We are on really tight deadlines, and need to hire someone right away." But this is at odds with the time taken to hire a programmer with the given skill sets. An industry-sponsored study in Silicon Valley found the mean time to fill a job was 3.7 months. (Silicon Valley Joint Workforce Initiative Study, A.T. Kearney Co., May 18, 1999.) But Angelo then made a much more interesting remark: KASTE: Paparelli says one reason people think companies have to recruit Americans before they go to the H1-Bs is because, in fact, they are required to recruit Americans later on, when they're trying to get permanent visas, green cards for the temporary H1-B workers that they like and want to keep on. PAPARELLI: So U.S. workers put on their suits and ties and their white shirts and they shine their shoes, and they go to the interview thinking that they have the opportunity that they've been longing for, only to be rejected. KASTE: Paparelli calls it an empty ritual required by the Department of Labor, as it compels employers to prove a negative, to prove they can't find qualified workers. The result, he says, is pointless job interviews. And those seem to be the source of much of the frustration expressed by mid-career tech workers in places like Silicon Valley and Seattle... So even the immigration attorney admits the green card process is an "empty ritual." I'd guess some people couldn't believe their ears! But it was nothing new. On the contrary, after the infamous YouTube videos (see files YouTubeVideosH1B.txt, PittsburghYouTube.txt, CohenAndGrigsbyPrevailingWage.txt, DOLSanctionsCohenAndGrigsby.txt, TubeGateFirmReplies.txt in http://heather.cs.ucdavis.edu/Archive), there were a number of immigration lawyers saying that in public; see the above files and also DramaticAdmission.txt at that same site. So, this frank admission has been made before, but boy, Angelo sure said it vividly. This is kind of admission that ought to make Congress hopping mad...uh, right? Congress ought to be especially troubled by the coupling of Angelo's two statements: He doesn't want an American recruitment requirement in either the H-1B or the green card process. He simply doesn't want employers to be required to look for Americans to fill these jobs, period, never. Again, that is completely antithetical to what Congress claims to want (as seen in its letters to constituents). In fact, it is what President Obama claimed he wanted back when he was a senator (see http://heather.cs.ucdavis.edu/Archive/Demos2007.txt). So Congress and Obama should be happy to require H-1B employers to recruit Americans...umm, right? The question then becomes, Would it do any good? As Angelo said, the American recruitment process is an "empty ritual," or as the immigration lawyers newletter put it in one of the files above, a "charade." But things could be toughened up, a lot. One proposal I've made is that the American recruitment requirement could stipulate that a employer wishing to hire a foreign worker is not allowed to reject a U.S. applicant on the grounds that he/she is "overqualified." As I've said so often, age (35+) is one of the central issues in abuse of foreign worker programs. This new restriction should help quite a bit in that regard, though of course it's not a panacea. Yet, the best solution to the abuse problems is to go right to the root causes--employer hankering for cheap, "handcuffed" labor. Concerning cheap, I've supported the Durbin/Grassley bill, which sets the legally required wage floor at the 50th percentile of salaries in the given occupation and given region (WITHOUT breaking things down by experience level, a key point). The AFL-CIO (DPE) proposal would set the figure at the 75th percentile, which really makes sense: The employers claim that the foreign workers are "special"--posses special skills, special talents or whatever--so the employers should be willing to pay a premium. This 75th percentile floor should apply to both H-1B and green cards, AND to the OPT program. (That is, if an employer hires an OPT, the employer must pay at least the 75th percentile.) That one simple change--defining prevailing wage at the 75th percentile, NO experience levels--would remove the vast majority of the abuse of H-1B and green cards. One simple change! The yearly H-1B cap, the per-country green card caps, etc. would become NON-PROBLEMS, because the quotas would never even come close to filling. Concerning the "handcuffing"--this is extremely attractive to employers, especially in Silicon Valley, a huge incentive for them to hire foreign workers in lieu of Americans--the solution is again very simple: Give the foreign workers full mobility in the labor market. If the employer is afraid the worker will jump ship, all the employer has to do is what he would do to retain an American worker--pay the worker more. I have always strongly supported facilitating the immigration of "the best and the brightest," and have suggested giving quick (6 months max) green cards to those who have legitimate salary offers at or above the 90th percentile. I mention this not only because I believe in it but also to defuse the generally phony industry claim that the foreign workers are the best/brightest. By the way, Lynn Shotwell, one of the top industry lobbyists, told me she would support such a proposal. Now take note of this: There are two things from the above list that President Obama could do RIGHT NOW, ON HIS OWN, by Executive Order. 1. He could direct DOL to forbid employers from rejecting Americans on the grounds of being "overqualified" in the green card process. 2. He could define the EB-1 Extraordinary Ability green card category to include my 90th percentile proposal above. No statutes or regs are perfect, and thus ways would be found to circumvent my recipes above. But I believe they would solve most of the abuse problems. That is assuming that Congress and the President actually WANT to solve the abuse problems. Do they? Norm