IT workers replaced by H-1Bs? Congress caved
Two days ago, I wrote how workers at Southern California Edison’s Information Technology Department (which had 1,800 employees and 1,500 contract workers) were laid off to be replaced by IT workers from India brought in on H1-B visas. The to-be-laid-off American workers, as part of their severance deal, have to train the Indian workers so that they can do the jobs that American workers have been doing.
This isn’t an exception. It’s the rule in American tech. Bringing down the cost of labor is the Holy Grail.
SCE hired two Indian companies, Infosys and Tata Consultancy Services, among the largest users of H-1B visas, to provide the workers. But H1-B visas aren’t supposed to allow this sort of thing. They’re not supposed to cost American workers their jobs. The article depicted the abuses of the H1-B system and sparked a flood of often excellent and sometimes extensive comments. The issue struck a chord. Here is the article and comments… In Search of Cheap Labor in Tech: Behind the H1-B Visa Scenes
Alas, what we thought were “abuses of the H1-B system” is actually baked into the system purposefully so that these companies aren’t abusing the system – they’re just using it after their lobbyists performed miracles in, as we say, the best Congress money can buy.
Below, John Miano sheds light on how that worked. It’s chilling (but with a very familiar ring).
By John Miano:
Since you covered the H-1B replacement issue, I thought I would explain the why and how of what is going on. And it has been going on for a long time; here’s a Washington Post article from 20 years ago. The same thing is happening now.
Look at the forces at work here. Employers, like SCE, want cheap foreign labor. Companies like Infosys that get thousands of H-1B visas each year to replace American workers hire big law firms. Legal protections for American workers at SCE stand being lost to politically-connected lawyers and their fees.
If you go to Congress.gov and look up the first bill to expand the H-1B program, HR 3736, 105th Congress, you find that when it left the House Judiciary Committee it contained this text:
(a) In General.–Section 212(n)(1) of the Immigration and Nationality Act (8 U.S.C. 1182(n)(1)) is amended by inserting after subparagraph (D) the following:
(E)(i) Except as provided in clause (iv) [ACADEMIC EMPLOYER}, the employer has not laid off or otherwise displaced and will not lay off or otherwise displace, within the period beginning 6 months before and ending 90 days following the date of filing of the application or during the 90 days immediately preceding and following the date of filing of any visa petition supported by the application, any United States worker (as defined in paragraph (3)) (including a worker whose services are obtained by contract, employee leasing, temporary help agreement, or other similar means) who has substantially equivalent qualifications and experience in the specialty occupation, and in the area of employment, for which H-1B nonimmigrants are sought or in which they are employed.
But a funny thing happened on the way to the House floor. The leadership of the House allowed immigration lawyers to rewrite the bill (the new version being provided by Fmr. Sen. Spencer Abraham (Republican from Michigan) before it came to a vote. The new bill grew by 21 pages. The text above became:
(E)(i) In the case of an application described in clause
(ii), the employer did not displace and will not displace a United States worker (as defined in paragraph (4)) employed by the employer within the period beginning 90 days before and ending 90 days after the date of filing of any visa petition supported by the application
(ii) An application described in this clause is an application filed on or after the date final regulations are first promulgated to carry out this subparagraph, and before October 1, 2001, by an H-1B-dependent employer (as defined in paragraph (3)) or by an employer that has been found under paragraph (2)(C) or (5) to have committed a willful failure or misrepresentation on or after the date of the enactment of this subparagraph. An application is not described in this clause if the only H-1B nonimmigrants sought in the application are exempt H-1B nonimmigrants.
Superficially, the new version appears to be doing somewhat the same thing. However, I have highlighted the key changes (other than the duration). Here we have the bill writers using indirection to conceal what the bill is actually doing.
You have to read farther to find this definition:
(B) For purposes of this subsection–
(i) the term `exempt H-1B nonimmigrant’ means an H-1B nonimmigrant who–
(I) receives wages (including cash bonuses and similar compensation) at an annual rate equal to at least $60,000; or
(II) has attained a master’s or higher degree (or its equivalent) in a specialty related to the intended employment; and
(ii) the term `nonexempt H-1B nonimmigrant’ means an H-1B nonimmigrant who is not an exempt H-1B nonimmigrant.
This provision makes it perfectly legal to replace an American at will by an H-1B worker if that worker is paid more than $60,000 or has a master’s degree. You hire a worker with a notorious “Master’s in Computer Applications” from an Indian diploma mill, and you can replace an American. Or, you pay more than $60,000 (the average programmer wage in LA is over $90,000) and you can do the same.
And thus, American workers remain roadkill for lobbyists and immigration lawyers.
When you see Americans at SCE, Disney, Pfizer, Cargill, AIG . . . being replaced by H-1B workers, it is no accident. It is how the H-1B program has been intentionally designed. The American corporations and the Infosys’s of the world have their lobbyists and lawyers. The working people of America do not.
Meanwhile, the morons in the media call any bill that increases the number of H-1B visas “reform.” By John Miano.
“They’re bringing in people with a couple of years’ experience to replace us, and we have to train them,” said one of the SCE employees replaced by an H1-B. Read… In Search of Cheap Labor in Tech: Behind the H1-B Visa Scenes