The stars aligned for immigration-patriots this past week. A bipartisan group of senators, headed by Republican Chuck Grassley and Democrat Dick Durbin, introduced a pro-American H-1B reform bill aimed at correcting the chronic abuses of the long-compromised guest-worker program. Also released was Michelle Malkin’s latest tour de force, Sold Out, a scalding critique of the H-1B program and an essential backgrounder for on-the-fence co-sponsors of the new bill.
Then there was the Fifth Circuit’s crippling of President Obama’s illegal-immigration-inducing Deferred Action for Parental Accountability (DAPA) program — the court at last gave us a true moment of hope and change under the current administration. Notably, one of most informative parts of the decision was the dissent. As the majority panel rightly describes it, Judge Carolyn Dineen King (appointed by Carter) basically states throughout her 53-page dissent that “it was Congress’s fault” the president circumvented their plenary power over immigration and unilaterally installed the illegal program. Not once did Judge King acknowledge that Congress’s laws on immigration are strong, clear, and highly detailed and that years of administrative finessing make it more the executive’s fault that we have so many millions of illegal aliens who refuse to leave the country.
If Judge King was talking about the H-1B program, however, she would have a point. As Malkin and her co-author John Miano (a leading expert in the field) discuss in Sold Out, the damage caused by the H-1B and other guest-worker programs is probably evenly split between Congress and immigration bureaucrats. Starting with the latter, witness the taxpayer-funded conference put on earlier this month for both immigration attorneys in DHS and attorneys in private practice. There, DHS officials told their future employers not to worry — that the president’s executive memo on tech visas (also released the same day as DAPA) would soon be implemented and that the first of “several” “guidance announcements” and “policy directives” would be arriving as soon as this month.
The corruption of agencies by commercial interests goes back a long way when it comes to regulations on visas for skilled workers.
The corruption of agencies by commercial interests goes back a long way when it comes to regulations on visas for skilled workers. In Sold Out, Malkin and Miano go to where it started: the postwar H-1 program intended only for those with “exceptional ability.” But soon after it began, through a “series of backdoor agency decisions,” labor protections originally put in place to prevent corporate abuse were “wiped out.” Congress eventually addressed the problem with the creation of the H-1B program in 1990. But soon Congress got in on the action as well, no doubt due to the increased importance of campaign fundraising and the explosion of tech-industry wealth that tech companies could then bestow on favored politicians. Now, for Senators Orrin Hatch and Marco Rubio, among others, “H-1B visa reform” simply means more visas and no reform.
Key to H-1B abuse is the current “prevailing wage” standard, a mechanism designed to ensure that foreign professionals are paid at a level that doesn’t undercut American wages. But as Malkin and Miano note in their book, employers themselves determine what the “prevailing wage” is and can essentially use any source in support of their federal applications. As a result, it’s common practice for companies to satisfy the standard by simply submitting wage surveys to Labor Department adjudicators from incompatible regions in the country. Companies use wage surveys from low-wage locations such as Iowa, for instance, instead of surveys from high-wage locations such as New York or San Francisco, where most H-1B employers are based. When adjudicators receive these submissions they have only seven days to review them with little to no power to make post-deadline revisions. If a recent GAO report about this process is anything to go by, thousands of such surveys annually are simply rubber-stamped with submitted wage rates falling far below the real prevailing rate. Under the Grassley-Durbin bill, however, not only will the seven-day deadline be doubled, but only wage surveys from the employer’s own region will be accepted.
The Grassley-Durbin bill should make Malkin happy. Most important, it will require companies that use H-1B visas to make a good-faith effort to hire American professionals first. Contrary to popular belief, this is not a requirement under the H-1B program. As Malkin writes, the “Cheap Foreign Labor Lobby’s propagandists” have spread misinformation about visas as though it were “a sexually transmitted disease.” Companies that use H-1B visas do face an Americans-first requirement before they may obtain green cards for their H-1B employees, but this is a smaller part of the overall problem. Under the Grassley-Durbin bill, to show they’ve made a good-faith effort, companies that wish to import foreign professionals will be required to list available positions on a Department of Labor–sponsored website for 30 days before submitting a petition for an H-1B visa. This will confirm whether or not a “skills shortage” really does exist.
This provision has been finessed in the context of green cards: Employers have conducted fake interviews with American professionals before hiring the foreign alternatives. Younger workers are cheaper, and a full 75 percent of all H-1B professionals are younger than 35. As a result, tech hubs around the country have long been known to American workers as hotbeds of age discrimination. In their book, Malkin and Miano quote San Francisco cosmetic surgeons who claim that their clientele is mainly made up of anxious American tech workers. After all, as open-borders zillionaire Mark Zuckerberg explained to a roomful of tech-conference attendees, “young people are just smarter.” According to Sold Out, half of all H-1B visa-holders come into the country with only a bachelor’s degree (obtained in only three years in India). Further, Malkin and Miano find, barely any have created U.S. businesses.
If the Grassley-Durbin bill gains momentum, Zuckerberg and the rest of the so-smart, young tech elite might have to take a long, hard look at the dysfunctional system they’ve helped create. They can start by reading Sold Out.
— Ian Smith is an attorney who works for the Immigration Reform Law Institute.