To: H-1B/L-1/offshoring e-newsletter Wed May 14 10:02:49 PDT 2014 Is a bit of a drama in progress at http://www.regulations.gov/#!documentDetail;D=USCIS-2010-0017-0001 (For those whom I've already mentioned this to, the site now seems to have changed to the above address.) Here is what the situation is: THe USCIS proposes a new regulation, under which the spouses of some H-1B visa holders, here in the U.S. under an H-4 visa, would be granted work authorization. DHS, by law, must open the proposal to public comment, which anyone can submit at the above site. I use the word "drama," because the contrast is quite striking: There are huge numbers of posts supporting the proposal by people with Indian names, many of whom identify themselves as H-1Bs or H-4s, with the opposing posters being almost all Anglo-surnamed. No one here will be surprised to hear that I think this proposal is a not a good idea. But what really concerns me is PROCESS. I regard this as one of the most blatant acts of deception and abuse by a presidential administration I've ever seen, by either party. First, there is the usurpation of the powers of the Legislative Branch. Though there may well be a loophole or two that USCIS found for their action, the fact is that it at least violates the spirit of the Constitution, if not the letter. I'm not even sure that it is proper for USCIS to solicit comments from noncitizens. But it's definitely wrong to take an action that USCIS knows will adversely impact citizens. In that light, it's truly outrageous that USCIS says the proposal is designed to prevent "economic hardship" to the H-1B families. In fact, some of the H-1B comments make the same point, along the lines of, "It's hard to live on a single income, especially for families with children..." The obvious question--obvious even to the USCIS, I'm sure--is, What about the economic hardships brought upon Americans by the H-1B (and now, H-4) program? Yes, I do sympathize with the frustations of highly-educated H-4s who must stay home idle. But let's put things in perspective, OK? The industry lobbyists (whom USCIS seems to have close relations with, judging from their use of all the industry's talking points) always argue that American tech workers aren't impacted by H-1B, citing low unemployment rates. As I've said before, this is highly misleading. People who can't find work are forced to leave the field; the former engineer now working as a schoolbus driver or box packer (to cite two instances I've seen personally) counts as employed, even though he is underemployed. Many software developers are independent contractors, who count as employed even though H-1B causes them to have fewer contracts and lower rates. Of course, EVERYONE in H-1B-heavy fields is impacted in the form of lower wages, due to simple supply and demand; even the NRC commission, with reps from Intel and Microsoft, conceded this. H-1B software developers form a substantial fraction of the new jobs created each year in that occupation. Yes, this does cause economic hardship among Americans. In some cases, it has even been a factor in heart attacks and suicides. (When I mentioned this once to Netflix CEO and strident advocate of H-1B expansion Reed Hastings, he replied sarcastically, "Yeah, and it causes them to beat their wives.") The USCIS has estimated that as many as 100,000 H-4s might benefit from the proposed rules change. Their more detailed computation suggests that the actual number may be less than this, but they fail to account for the fact that this change would create its own demand. In any case, the actual number is at least in the tens of thousands. As I've pointed out many times, I personally have no stake in the H-1B issue. But whenever I see an issue on which I know the conventional wisdom (typically shaped clandestinely by PR experts working for the vested interests) to be wrong, I tend to speak out. And when a government agency is involved in deliberate deception (yes, deliberate), I am doubly motivated to call them out on it. The agency has been involved in flagrant bias from the beginning, when it used the term "our broken immigration system" on its home page, a code phrase for desiring an expansionist immigration policy. But USCIS has really outdone itself this time. Just look at the research they cite in support of the rules change. It's extremely selective, all portrarying H-1B in a good light, with NO research cited from other authors. Indeed, even countering statements by the same authors are ignored. USCIS cites an old paper by Hunt and Gauthier-Loiselle that found strong immigrant patenting rates, without telling readers that Hunt subsequently did a more detailed study, with very different findings than in the first. I quote from my EPI paper: "Hunt's second study (Hunt 2009 is the working paper version; Hunt 2011 the final) addressed this question. In the working paper, she wrote, 'After I control for field of study--and education--both main work visa groups and student/trainee visa holders have statistically significantly lower patenting probabilities than natives.' In the final published version the dataset coverage was somewhat different, but she still found no statistically significant difference between immigrants and natives." Similarly, USCIS cites work by Vivek Wadhwa, ignoring his repeated statements that H-1B is a bad, abusive program, such as "I know from my experience as a tech CEO that H-1Bs are cheaper than domestic hires. Technically, these workers are supposed to be paid a 'prevailing wage,' but this mechanism is riddled with loopholes," and "I was one of the first [CEOs] to use H-1B visas to bring workers to the U.S.A. Why did I do that? Because it was cheaper." Vivek also spoken many times about the problems older American programmers and engineers have in finding work, which goes directly to the fact that "economic hardship" applies to Americans too. Various congressionally-commissioned studies that have discussed abuse of H-1B are completely ignored by USCIS. I've written elsewhere about the entrepreneurship issue, and will say more soon, but again, the research cited by USCIS is misleading. In any case, though, my point here concerns the blatant lack of balance. The irony of all this is that many of the H-4s will be in for a rude awakening when they hit the job market. A lot of them will find that the market is just as tough for them as it is for Americans, and that the reason their H-1B spouses were able to find work in many cases was employers' desire for cheap, immobile labor--in contrast to the H-4s, who will be free agents, thus less attractive to employers who want "handcuffed" workers. The people at USCIS will treat the posted comments as indicating a groundswell of public support for the proposed change, drowning out the ones by Americans; most Americans are not even aware of the rules change or the comments site. The folks at USCIS are giving a bad name to the notion of being a "public servant." Norm Archived at http://heather.cs.ucdavis.edu/Archive/H4.txt