Date: Fri, 14 Jul 2006 00:21:18 -0700 From: Norm Matloff To: Norm Matloff Subject: InformationWeek article on Guild press release To: H-1B/L-1/offshoring e-newsletter Nice article, important topic that goes to the heart of the H-1B issue. One point I've often made, but is often forgotten, is that H-1B provides employers with a means to avoid older American workers. If they run out of young Americans to hire, they can avoid turning to older (age 35+) Americans by hiring young H-1Bs. As the Guild points out, the prevailing wage law is defined by the job, not by the qualifications of the worker. This means that an employer could even hire an older H-1B as long as the job only requires a few years of experience. Now the reader must be thinking now, "Aha! That's how they do it! They take a job requiring 15 years of experience but fraudulently define it to need only 3." Well...no. The vast majority of programming jobs are defined to require somewhere between 3 and 7 years of experience. So what they H-1B program does is expand the supply of younger workers. And the proposed new F-4 program in the Senate bill and in the House SKIL bill, would make things even worse, since by definition it deals with new graduates. However, the fact that the prevailing wage is defined by the job and not the worker is very big for employers in a different way. As the Guild points out, the employer can hire an H-1B who has a PhD for a job requiring only a Bachelor's degree. The legal prevailing wage then is set at the Bachelor's level. The employer gets the PhD education of the worker as a bonus. Now I can hear you saying it again: "Aha! The employers are fraudulently describing PhD-level jobs as requiring only a Bachelor's." Again, you're wrong. Virtually no software development job requires a PhD. The PhD should have a better overview, sharper insights and so on, but it's only a plus, not a necessity. So, no fraud here either, just good old fashioned aggressive use of loopholes. The article quotes Kim Berry as being pessimistic that the Guild can get Congress to replace the sham H-1B regs by genuine ones. He may be right, but at least it's already been written up in a bill (by Rep. Pascrell). The language in that bill could be copied verbatim into whatever bill Congress passes on H-1B this year. Now, WILL they enact something on H-1B and F-4 this year? As I said yesterday, I'd be shocked if they didn't. Interestingly, the July 14 issue of Immigration Daily suggests that the bill will be passed during the "lame duck session" after the November elections. This is very possible. The last H-1B legislation, in 2004, was also enacted at that time. It added a new 20,000-visa category for foreign grads of U.S. universities, and implemented that four-level prevailing wage system (formerly only two) referred to in the article, a measure that immigration attorneys had been requesting. By the way, in today's San Francisco Chronicle (www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2006/07/13/MNGMPJUDBS1.DTL), Sen. Specter stated that critics of the H-1B program are motivated by racism. By implication, he seems to feel that programmers don't mind losing their jobs to H-1Bs as long as the H-1Bs are white. When someone loses his job and can't pay the mortgage, they don't care what color the replacement worker is. Norm http://www.informationweek.com/blog/main/archives/2006/07/doing_h1b_math.html Doing H-1B Math, In Dollars And Sense By Marianne Kolbasuk McGee Jul 13, 2006 at 05:10 PM ET Foreign tech workers who enter the U.S. with H-1B visas are paid about $25,000 a year less than American workers with the same skills, according to the Programmers Guild, an advocate organization for U.S. tech professionals. And the guild's president, Kim Berry, is hoping that Congress will "correct" current wage rules that are supposed to keep the pay playing field level between American professionals and H-1B visa holders, but aren't. Current regulations have loopholes that allow employers to hire H-1B workers at wages 25% or more lower than Americans earn for the same jobs, says Berry. And that's one of the big factors that make hiring H-1B workers so attractive, he says. The guild's analysis is based on evaluating the U.S. Dept. of Labor's "prevailing wage" schedules for occupations versus the wages employers cite in their Labor Condition Applications, which employers must submit when seeking H-1B workers. The analysis shows that many employers pay thousands of dollars less for H-1B workers compared to the "median" pay of Americans doing those jobs. For instance, while the Dept. of Labor has four pay levels considered "prevailing wages" for programmers in San Jose, Calif., employers can get away with paying H-1B workers the lowest wage level by watering down the position's required skills, education, experience, etc., says Berry. More specifically, in San Jose, the Dept of Labor's four levels of "prevailing wages" for programmers range from $57,762 for level one; $72,800 for level two; $87,838 for level 3; and $102,877 for level four. The four different levels are based on skills, years of experience, education, and a few other things. So, for instance, the loopholes in DOL rules allow employers to hire foreign workers with PhDs in jobs paying the lowest wages as long as the position's job description doesn't require an advanced degree or "more than average experience," says Berry. The guild wants Congress to close these pay loopholes in any H-1B (or more comprehensive immigration) reform bill that gets passed. Congress should redefine the lowest "prevailing wage" level for H-1B workers to be the "median" pay level U.S. workers earn in an occupation. For employers in San Jose, that would mean paying an H-1B programmer a minimum of $83,500 annuallywhich is the median wage earned by American programmers in that occupation in that cityinstead of finagling to pay only $57,762, the lowest wage allowed today. That would make employers think twice about whether they really "need" twice as many H-1B tech workers allowed into the U.S. each year, he says. "It would be a miracle" if this sort of pay reform gets passed by Congress, admits Berry. But he thinks it's worth a shot.