Date: Sun, 20 Dec 2009 15:00:45 -0800 From: Norm Matloff To: Norm Matloff Subject: DPE/AFL-CIO, CAP, political machinations To: H-1B/L-1/offshoring e-newsletter A number of people have brought to my attention the new report by the Department for Professional Employees (DPE) of the AFL-CIO, titled "Gaming the System: Guest Worker Visa Programs and Professional and Technical Workers in the U.S." You can download it at http://dpeaflcio.org/pdf/DPE-Gaming_the_System_Report_.pdf Before I discuss the report, it's important to present the background. DPE has been deeply concerned about H-1B and related programs for many years. In fact, they were involved before I started writing about H-1B in 1993. They have always had a first-rate staff; I would mention Jack Golodner and Mike Gildea in particular, but everyone has been excellent. They have consistently been on top of this issue, and have been far superior to the other widely-recognized tech professional influence on the Hill, IEEE-USA, which had its H-1B wings clipped by the IEEE parent organization. However, DPE is only a small part of the mainly blue-collar AFL-CIO, and the latter has never strongly supported DPE on the H-1B issue. The AFL-CIO has indeed publicly expressed its concern on H-1B, and has even on occasion sent its representatives to testify in Congress about the program, but has never spent much of its political capital on the matter. On the contrary, in 2000 the AFL-CIO took actions diametrically opposed to the interests of DPE. It engaged in negotiations with the tech industry for a deal in which the AFL-CIO would support an INCREASE in the H-1B cap in exchange for the industry's supporting legalization for undocumented immigrants. See the article by labor activist David Bacon at http://www.laweekly.com/content/printVersion/33273 The issue of amnesty for illegals continues to be big with the AFL-CIO today, as they see these workers as a large group of potential union members (http://www.dpeaflcio.org/interest/Labors_Framework_April_2009.pdf). This is natural, as the AFL-CIO needs to act on the greater good of its members, but clearly it can clash with the interests of engineers, programmers and other professionals. Indeed, DPE itself supports amnesty in its report. Again, my point here is not to comment on whether amnesty is a good idea, but rather that it is in political conflict with genuine reform of H-1B. Currently a number of "select" organizations are working out a proposal for comprehensive immigration reform. These include the AFL-CIO and the Center for American Progress (CAP). Sadly, the Programmers Guild was not invited, nor was their input solicited for the DPE report The CAP is a think tank formed by former high-ranking officials in the Clinton administration. It recently put out its own report, "Prosperous Immigrants, Prosperous Americans," available at http://www.americanprogress.org/issues/2009/12/high_skilled_immigrants.html The report is also posted on the DPE Web page, though it's unclear to what extent, if any, DPE endorses it. CAP's report advocates an extremely liberal foreign worker policy, basically exactly what the industry wants, and CAP also endorses amnesty for illegals. Neither of these positions is surprising, given the background of the report's author, Marshall Fitz, as described at the end of the report: Marshall Fitz is Director of Immigration Policy at American Progress. Before holding his current position he served as the director of advocacy for the American Immigration Lawyers Association, where he led the education and advocacy efforts on all immigration policy issues for the 11,000-member professional bar association. He has been a leader in national and grassroots coalitions that have organized to advance progressive immigration policies. Fitz has been one of the key legislative strategists in support of comprehensive immigration reform and has served as a media spokesperson on a broad array of immigration policy and legislative issues. He has appeared on national and regional television and radio stations including MSNBC, CNN, BBC, C-SPAN, and NPR; been quoted extensively across the spectrum of international, national, and local publications; and presented at national conferences and universities on immigration matters. He has also advised numerous members of Congress on immigration policy, politics, and strategy and helped draft major legislation. He currently serves on the boards and steering committees of other national organizations focused on immigrant rights and immigration policy. Marshall is a graduate of the University of Virginia School of Law and served on the Virginia Law Review. After graduation he clerked for Judge Bruce M. Selya on the U.S. Court of Appeals for the First Circuit. In the following years he practiced immigration law in Washington, D.C. at Hogan & Hartson, LLP. In plain English: He's an immigration lobbyist. And a prominent one. The Democratic Leadership Council, similar to CAP and formed years ago by Bill Clinton himself, also supports liberal tech worker visa policies. See their report, "Brain Freeze," at http://www.dlc.org/documents/DLC_BrainFreeze.pdf As I sometimes mention, I'm a lifelong Democrat, but the Democratic Party has been just as bad on foreign tech worker issues as the Republicans. It's interesting that the two main people in Congress who genuinely share my views on H-1B are non-Democrats, Republican Sen. Grassley and Independent Sen. Sanders. The current line among most Democratic politicians I've heard comment on the H-1B issue is that the only reform needed is to ensure better compliance with the law, via more money for enforcement, stiffer penalties for violations, etc. As I've written before this is, not coincidentally, the industry line too. The industry lobbyists love to have the discussion focus on enforcement, as it distracts from the real issue, the loopholes (see below), which of course the industry put into the law in the first place. And as I've also written, enforcement is NOT the main area in which H-1B needs to be reformed. Violations do sometimes occur, yes, but they are only a small part of H-1B abuse. Most of the abuse is LEGAL, due to huge loopholes, especially in the legal definition of prevailing wage. Even if somehow a perfect 100.0% compliance record could be achieved, it would not help U.S. citizens and permanent residents get the tech jobs that now go to H-1Bs. Better enforcement would make the employers of H-1B dot their i's and cross their t's in the procedures, and in some cases would make them pay a bit more, but the wages would still be well below market level because of the loopholes. In cases in which a DOL audit on prevailing wage has resulted in the department ordering employers to give workers back pay, the typical payment has been a few thousand dollars per worker. These violations are probably not deliberate. By contrast, making use of the loopholes can save the employer ten times that amount or more. So, even with 100.0% compliance, the jobs then would still go to the H-1Bs instead of to the Americans. This brings me to my deep disappointment with the DPE report. DPE's blurb summarizing the report, at http://www.dpeaflcio.org/news/newsline/newsline_2009_12.htm explains, “Gaming the System: Guest Worker Visa Programs and Professional and Technical Workers in the U.S.” is a major new report from DPE that supports the goal of rational, comprehensive immigration reform. The guest worker visa programs of the United States are a flashpoint in the debate over immigration. With fallible reporting and no unified government oversight, U.S. guest worker visa programs are overly complicated, lack accountability, have lax tracking enforcement, and exemplify why U.S. immigration policy needs reform. “Gaming the System” provides background on the much discussed H-1B visa and the impact this program and those like it have had on two distinct sectors: education and science, technology, engineering and mathematics (STEM). As you can see, the focus is exactly where it should NOT be--enforcement issues. This is where the industry and the Democratic Party want the focus, and as explained above, this would be of no help to American workers. Instead, the DPE report is actually harmful, as it gives Congress an excuse to take the wrong action. To be sure, the DPE report has a wealth of material, very useful to a researcher or activist who is new to the field (though it unfortunately omits some of the most important issues and references). It even mentions loopholes (though very briefly and with the ones cited being minor). I was pleased to see that David Huber's testimony is in there. The report's coverage of the impact of H-1B on science post docs is excellent. But no one on the Hill will read the actual report--they'll just read the executive summary, or more likely, just rely on the word of others that the report focuses on enforcement. Norm