To: H-1B/L-1/offshoring e-newsletter Thu Mar 21 20:12:47 PDT 2013 I often mention that H-1B and green card law is full of loopholes, the most obvious being the legally defined prevailing wage, which is typically well below the true market wage of the worker. But have you ever wondered HOW the loopholes get in there? Careless oversight in drafting the laws? Of course not. They are deliberately inserted. More on this below. But first, an update on the bill that Sen. Grassley revived on Monday from previous Congresses with Sen. Durbin. As many of you will recall, I've always endorsed the bill, as I considered its prevailing wage reform the key to fixing H-1B. (Note by the way that this would apply to ALL employers of H-1Bs, contrary to a misreport by Computerworld.) Durbin did not sponsor the latest bill, because, as reported by Politico on Tuesday at http://www.politico.com/story/2013/03/grassley-renews-push-for-stiffer-h-1b-visa-rules-89099.html "Durbin did not sign on this time because of his negotiating role [as a member of the Gang of Eight], a staffer said. But he will 'strongly support' the bill, which restructures temporary work visa programs by boosting enforcement, altering wage requirements and attempting to prioritize American workers." However, yesterday the Washington Post reported, at http://www.washingtonpost.com/politics/visas-for-high-skilled-workers-could-double-under-bipartisan-senate-plan/2013/03/20/8b74c08a-9194-11e2-bdea-e32ad90da239_story.html "Durbin, who has been a lone voice in the room on the issue, is likely to back down, according to people familiar with the talks, because he has gotten his way on other points, such as a path to citizenship for the estimated 11 million illegal immigrants living in this country. A Durbin spokesman declined to comment, stressing that negotiations were continuing into the night Wednesday and that nothing was final." Today I was told today, though, that Grassley is dropping his bill, due to the refusal of the Gang to consider his reforms. I'll come back to Grassley in a moment. But where do loopholes come from? The answer is that the stork brings them :-) execpt that the "stork" here is the industry lobbyists. You all know about the lobbyists, but you may not realize the level of detail they often get involved in during the drafting of the bill. The Politico article quoted Robert Hoffman, one of the most powerful lobbyists, for instance, and indeed, he was involved in weakening the Durbin/Grassley bill in a past Congress. Even after a bill is enacted, the lobbyists' work is far from done. They then lobby the executive branch of the government, to make sure the regulations that implement the new statute are to their favor. So the lobbyists to a large degree are primary factors in the shaping of a law and its implementation. In some cases, they literally write the law! And such a case appears to be occurring right now: http://dailycaller.com/2013/03/21/rubio-hires-democratic-lawyer-to-help-write-immigration-bill/ "The devil is in the details," and Rubio's lawyer consultant, Enrique Gonzalez, is from the largest immigration law firm in the nation, Fragomen. If the name sounds familiar to you, it's for good reason; Fragomen was the firm involved when network engineer David Huber replied to a job ad by Cisco, apparently for a job Cisco actually intended to fill with a foreign worker. If you have an interest in H-1B, the video at http://www.youtube.com/watch?v=OhGG2O2jaCU&feature=related is a must-view. Then read the details at http://heather.cs.ucdavis.edu/Archive/FragomenAudit.txt Then finally, keep reminding yourself that all of this is perfectly legal, as I said at the time and was confirmed by a later DOL audit. (See all the files with names beginning "Fragomen" in http://heather.cs.ucdavis.edu/ ) The video is a must-view also because Huber is a long, impressive CV, including things such as a multimillion dollar project at NASA. So, yes, "Durbin is the lone voice in the room"; he really has no voice. Gonzalez and Rubio are the ones in the room with strong voices. So Rubio's consultant, the former Fragomen lawyer Gonzalez, will make sure that nothing goes wrong. Every detail of every proposed provision will be scrutinized by Gonzalez, and by Hoffman, to ensure that employers maximize their access to cheap, immobile labor, and immigration lawyers maximize their income. And of course then on the House side there is Rep. Lofgren, who is still an immigration attorney, though not practicing. No wonder much of the world wonders why the U.S. is encouraging their countries to become democracies. Norm Archived at http://heather.cs.ucdavis.edu/Archive/SourceOfLoopholes.txt