National Security & Defense

Obama Games the Visa System to Lower Wages and Please the Tech Industry

(Welcomia/Dreamstime)

Lobbyists for the trillion-dollar tech industry pulled off a major immigration coup earlier this month. With just a simple tweak of the visa rules, they managed to secure potentially hundreds of thousands of work permits for their foreign tech employees in the United States, most of them currently on temporary non-immigrant work visas. The deal, which no doubt involved intense lobbying of the White House and the State and Homeland Security Departments, is breathtaking in how far it goes and how much it finesses our congressionally made immigration laws.

The Obama administration’s plan involves slashing the wait times that Indians on temporary work visas have in obtaining work permits. Work permits — unlike temporary work visas, which are tied to the sponsoring employer — are basically de facto green cards and give the foreign national complete flexibility in the job market. Currently, there are blocks in place on how many green cards based on employment can go to a single country annually. As a result, applicants from countries such as India, with its giant population, have wait times of around eight to ten years. Obama’s plan will slash this period by around six years, busting the dam on potentially hundreds of thousands of previously backlogged work-permit applicants.

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The State Department’s Visa Bulletin regulates when applicants for a “green card,” or permanent immigrant status, can receive their immigrant visa number. When they get this number, they can then apply to “adjust their status” from temporary to permanent. Importantly, when an application for adjustment is filed, the applicant automatically receives a work permit: the central aim of foreigners who come here. For someone inside the country, the wait time between starting the application for permanent-immigrant status and being allowed to file an adjustment application (which yields a work permit) is many years. For those outside the country, however — for instance, those applying at an American consulate — the wait time is much shorter. This is because far fewer foreign nationals apply abroad, as it is harder to convince a company to sponsor you while you’re outside the country. Under Obama’s new system, in-country applicants will now move to this latter track.

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This change is happening precisely because the nation with the biggest employment-visa backlog, India, happens to produce the greatest number of temporary workers for the U.S. tech industry (through the H-1B and other programs). Now hundreds of thousands will be getting fast-tracked work permits allowing them to operate in the labor pool along with ordinary American citizens.

#share#Most H-1B employers, principally tech firms, want a giant work-permit giveaway, even though it will give these formerly dependent workers greater flexibility in the job market. Big Tech has traditionally preferred H-1B holders over American workers because their visas are tied to the sponsoring employer, making them docile and unlikely to unionize. But flooding the labor market with potentially hundreds of thousands of current and future technicians and programmers (according to the estimates I’ve read), even with workers who will have greater flexibility, is much more important to tech firms, as it eliminates H-1B renewal and administrative costs. Tech firms do probably prefer that Congress lift its “stubborn” cap on annual grants of H-1B visas, but that’s not gonna happen anytime soon, owing to “gridlock” (a.k.a. mass grassroots opposition) on the Hill. In their mind, doling out work permits is a fine alternative.

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This work-permit giveaway will provide the temporary foreign work force, artificially implanted to begin with, the same amount of flexibility that American workers have but at much lower costs, the former being younger and used to lower living standards. The permits, which will also keep former H-1B “temporary” workers from leaving if their visas run out, will provide an incentive for many more Indians (and others) to come here.

With more permit holders in the labor market, wages will come under pressure, and presumably the prospects for promotions and mobility of these once-temporary workers will rise. Other effects include “brain drain” in places such as India and more importantly “internal brain drain” here in America, as high-school kids and undergraduates are deterred from pursuing tech-based degrees, a development that could result in an actual shortage of future American tech workers. This is all coming from a tech industry that spent almost $1.5 billion on immigration lobbying between 2008 and 2012 and was largely born of our taxpayer-funded military and university systems.

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Further, that work-permit flood won’t be limited to the applicants themselves. Both their spouses and their children under 21 will also receive the permits automatically. In an ongoing lawsuit against labor-market manipulation, the firm I work for, the Immigration Reform Law Institute, recently filed a motion for summary judgment. We demonstrated to a D.C. district court that a new rule implemented by the Department of Homeland Security, to give work permits to the spouses of H-1B applicants, would, under DHS’s own admission, invite nearly 169,000 new holders of employment-documentation documents into the labor market initially. A further 55,000 would be invited in the years going forward. Obama’s latest change on work permits would appear to override that rule and greatly multiply its effects. The Obama revision hasn’t even followed proper rule-making procedures.

#related#Of course, none of this appears to be legal. The central provision being manipulated here is INA § 245(a)(3), which says that in order to file an in-country adjustment application (and get a work permit), one’s green card must be “immediately available.” But under the government’s new system, only the applicant’s wait time for his adjustment application is slashed, not the wait time for his green card; for that, he still has to wait the normal period, which in many cases is about six years. Can anyone say that something that will be available six years from now is available “immediately”? As for the per-country cap that will be blown out for countries such as India, because this is a work-permit giveaway, not a green-card giveaway, the Obama administration will argue that they’re in the clear.

This is simply one more “evolving definition” of the Obama administration’s ever-widening approach to our immigration laws. As this shield against labor-market manipulation dissolves, so will the living standards of the increasingly depopulated American middle class.

Ian SmithIan Smith is an attorney in Washington, D.C., and a contributing blogger with immigration enforcement advocate, the Immigration Reform Law Institute.

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