To: H-1B/L-1/offshoring e-newsletter Thu Mar 7 14:19:21 PST 2013 This posting covers one of the most vital, yet least known, aspects of the H-1B/green cards topic: The fact that many tech employers highly prefer hiring foreign workers to similar Americans because green card sponsorship enables the employers to "handcuff" the foreign workers, preventing them from jumping ship to another company. Keep in mind that we are talking here about the mainstream, household name U.S. firms, NOT the bodyshops. In fact, in this sense, the mainstream firms are worse than the bodyshops, since the latter almost never sponsor their workers for green cards. Please bear with me. In the end I'm going to cite a SPECIFIC BILL in Congress, that while I oppose it, I actually consider it to be the "least bad" of all proposals currently being considered. The problem is easily explained. If you are a tech employer, you take a major hit if an engineer leaves an urgent project. If the engineer is a U.S. citizen or permanent resident, you can't make the person stay. You could of course offer more money, but employers don't like that option. But if the worker is a foreign national being sponsored by you for a green card, the worker is a de facto indentured servant, "handcuffed" to your firm. He/she can't leave, as it would mean starting the multiyear green card process again from scratch. In other words, the handcuffed nature of green card sponsorees provides a perfect solution to your predicament, as the employer. For many of them, this is even more important than being able to pay the foreign worker less than his/her true open market value. (Though of course, being trapped also means the worker typically won't get large raises etc.) I've known this for years, even before the old FACEIntel quote. I've seen it up close, including a dramatic one recently. Once again, we're talking about mainstream U.S. firms, including the big, famous ones. There have been two good pieces on this in the media in the last couple of days: PRI's The World: http://www.theworld.org/2013/03/skilled-worker-visa/ InformationWeek: http://www.informationweek.com/global-cio/h1b/it-talent-shortage-or-purple-squirrel-hu/240150215 I get contacted by the press a lot, often with poor results. (That's why I haven't reviewed the recent Mother Jones article here, even though it's sympathetic to my views.) But the reporters in the above two items really took care to delve sufficiently deeply into this very complex topic. Both of the pieces discuss the handcuffing issue. The first does extensive quoting of the trapped foreign workers (to get the full effect, listen to the audio rather than reading the text). Note that one of the companies mentioned is Amazon, which is as mainstream as you can get, not an Indian bodyshop. The second article doesn't quote H-1Bs, but it gives much more of the details of the process. (I do have small bones to pick here and there. For instance, the second article says that IEEE-USA "represents" its members, though the organization has apparently never polled its membership on this issue, as I noted in detail the other day. The "training" issue is a red herring. Etc.) One can look at this problem from the point of view of sympathy toward the trapped foreign workers, which I do, but for me the major issue is that it harms American programmers and engineers. A foreign worker will be far more attractive than a similarly-qualified American. Americans are the losers, especially the older (age 35+) ones. The partial solution--only partial, as it doesn't solve the age problem--is to take the employers out of the equation in the green card process. The employers should not be involved in the sponsorship at all. The workers are then not beholden to the employers. I submit that a lot fewer employers, say in Silicon Valley, would be hiring foreign workers if they didn't have this stranglehold over the workers. Surprisingly, the bill by Sen. Moran, S.310, would actually handle "STEM green cards" this way. Unfortunately it would not eliminate the current green cards, just add a new type of green card. But given that, and given again that it still would not solve the major age problem, I consider this proposal to be the "least bad" of all the ones I've seen for STEM visas, by far. (By the way, in my earlier posting, I said I had not seen the Klobuchar bill. It turns out that she is one of the sponsors of the "I-squared" bill.) The way the Moran bill would work is that a foreign student at a U.S. school would apply for conditional green card status while still in school. After graduation, the person would have full mobility in the work force, and if he/she continues to work in STEM for five years, unconditional green card status is granted. Actually, I made a proposal somewhat like this myself in my 2003 University of Michigan law journal article. It's ironic that I would have positive things to say about the Moran bill (if "least bad" is positive). I mentioned the other day that John Miano, founder of the Programmers Guild, had been told by a Moran aide that he (the aide) had stated that John would be wasting time by trying to show that there is no STEM labor shortage. The aide told John that the aide would not listen to such a presentation. But Moran's is the only STEM visa proposal that makes sense, so I must give him credit. In fact, credit should go to one of the sponsors of the bill, whether it's Moran or not. The article at http://www.politico.com/story/2013/02/senators-introduce-new-startup-visas-bill-87538.html says: ------------------------------------------------------------------------ Unlike an H-1B visa, the visa in the Startup Act would be issued to the individual not an employer, which would give the individual more latitude, Warner said. “The challenge is that people here on H1-Bs are almost like indentured servants,” he said... ------------------------------------------------------------------------ I continue to first and foremost support the AFL-CIO/DPE proposal that the legally required wage for H-1B (it should apply to green cards too) be set at the 75th percentile of wages in the given occupation and given region, without breaking things down by experience levels. The Durbin/Grassley proposal had this at the 50th percentile, still pretty good, but Paul Almeida of AFL-CIO/DPE points out that the employers claim they are hiring high-value workers (rare skill sets, "best and brightest" quality) etc., so they ought to be willing to pay above-average wages. That proposal is simple, easy to implement, is market based and above all is consistent with employer claims. What's not to like? The answer is that the industry would hate it, for the obvious reason: It would remove the basic incentive they have to hire H-1Bs--cheap labor. Paul's proposal would do for H-1B what Moran's bill would do for green cards--most employers would simply stop hiring many H-1Bs. The whole issue of the size of the yearly cap, for example, would become moot, because the cap would never come even close to being filled. Norm