Posted on 08/24/2015 4:27:56 AM PDT by markomalley
American technology workers won a big victory in the federal courts this month. The D.C. District Court ruled that a STEM-related visa program created by the Department of Homeland Security was potentially damaging to the domestic labor market and also in violation of federal rule-making procedure. For the plaintiffs in the case, the Washington Alliance of Technology Workers, however, the fight against BigTech lobbyists and Homeland Security has only just begun.
DHS’s so-called Optional Practical Training (OPT) program allows foreign nationals to live and work in the U.S. on a student visa even after graduation. In a rule promulgated by DHS in 2008, foreigners graduating in a STEM field at a U.S. school had these authorizations extended to nearly two and a half years after their graduation. U.S. employers love this because, on top of the longer work period, they have a greater chance to transition them into the H-1B program, a “professional specialty worker” visa that can last up to an additional six years. Also, employers receive a tax benefit for hiring OPT participants over Americans, as they do not have to pay Medicare and Social Security taxes for aliens on student visas.
Plaintiffs’ counsel, the Immigration Reform Law Institute (which I work for), argued in court that the OPT extension, created not by statute but entirely by DHS, was really just a way to circumvent the existing H-1B cap of 65,000 annual visa grants set down by Congress years before. Helpfully for us, DHS had already admitted that this was the purpose for the extension. As it explained in the agency rule creating the extension, “the H-1B category is greatly oversubscribed,” which, as a result, has “adversely affected the ability of US employers to recruit and retain skilled workers.” With the H-1B cap having been held up by Congress over the last few years, DHS did the next best thing. As H-1B guru Norm Matloff describes in a blog post discussing our case, the agency simply went ahead and created “a de facto expansion of H-1B.”
Let me digress for a moment on the H-1B lottery and the “oversubscription” issue. Unlike other visas, the fees for H-1B applications are refundable; there is no penalty for oversubscribing. As a consequence, heavy H-1B users, such as the outsourcing firms that supply BigTech companies as well as BigTech companies themselves, always apply for more visas than they really want in order to get close to their target. David North at the Center for Immigration Studies explains the process here. So when you hear in the press and elsewhere that “petitions have outstripped slots yet again by two-to-one,” the numbers are merely a reflection of companies’ trying to game the lottery system.
As Matloff explains, OPT is “just as harmful as H-1B.” The two programs are now similar in size, and the benefits to BigTech are also similar. Like H-1B holders, OPTs are younger than most American technology workers, and therefore cheaper. Citing the “prevailing wage” rules that technically exist for H-1Bs, Matloff notes that “the legal wage floors for H-1Bs depend on experience” (the worker’s age, in other words), “so hiring young H-1Bs in lieu of older Americans is legal.” As he says with cases such as SoCal Edison and Disney, “age was the key factor underlying the wage savings accrued by hiring H-1Bs.” See this link for information on a similar suit against Google based on age discrimination (which the company has since settled).
In the case of OPTs, however, this “wage floor” isn’t even available; being recent graduates, they’re all young (and cheap). Further, OPT participants are even cheaper to employ because, as stated earlier, aliens on student visas are exempted from Social Security and Medicare.
Fundamentally, the OPT program, like H-1B, allows BigTech firms to flood the labor market, creating artificial competition and pressuring the standard of living we’ve earned through decades of hard-fought democratic and labor reforms. The cost savings, meanwhile, get siphoned up by private technology firms, many of which grew out of taxpayer-funded military programs.
Thankfully, much of this wasn’t lost on the judge. DHS had asserted that our plaintiffs didn’t have standing to sue because (a) they couldn’t prove an OPT participant actually took one of their jobs (an impossible and unfair demand) and, in the alternative, (b) the plaintiffs were currently employed and so couldn’t show any injury — all are employed, mostly in contract positions. The judge knocked down both arguments by pointing out that “an influx of OPT computer programmers would increase the labor supply, which is likely to depress plaintiff’s members’ wages and threaten their job security, even if they remain employed” (emphasis added).
More concrete evidence was also offered. Plaintiffs showed examples of job advertisements where only OPT participants were requested to apply. As Matloff likes to note, these companies are not just using H-1Bs and OPT participants to replace American workers, as in the SoCal Edison and Disney cases; they’re also hiring them instead of American workers. And many times, it isn’t “highly skilled” types that are being imported but simply “ordinary people, doing ordinary work.”
The benefits of circumventing the H-1B program are apparently big. Arguing that DHS’s chosen 29-month extension period was an arbitrary and therefore invalid decision, plaintiffs showed the court that industry lobbyists CompeteAmerica, lobbyists from Microsoft and the Chamber of Commerce, and others had all been in contact with DHS requesting the same 29-month extension. And showing just how eager it was to comply, DHS implemented the rule without going through the statutorily mandated notice-and-comment period, a window of time in which the public can criticize agency action.
DHS tried to argue in court that skipping the process was necessitated by a looming “fiscal emergency” in the U.S. economy that could be ameliorated only by letting “tens of thousands of OPT workers” join the tech industry. Whose economic analysis did DHS cite to back this up? Studies from the technology industry itself.
Ultimately, although the court knocked down the OPT extension on procedural grounds, the victory is only temporary. DHS can open up the rule to notice-and-comment and try again.
Further, the judge rejected our argument that the program violates the law on other, more substantive (and less procedural) grounds. According to congressionally made statute (Immigration and Naturalization Act § 1101(a)(15)(F)(i)), student visas cannot be allocated for working purposes and may be allocated only to “bona fide students . . . solely for the purpose of pursuing such a course of study . . . at an established . . . academic institution” (emphasis added). But again, OPT, entirely a DHS creation, purports to let student-visa holders join the workforce. By ignoring the stipulations of Congress, the program exceeds DHS’s statutory authority.
By giving DHS the authority to redefine what a “student” is, the court is allowing the agency to set the duration and conditions of a student’s stay, potentially letting them occupy the labor market for years upon years. Good for the foreign “student,” good for the trillion-dollar tech industry, but bad for the American worker.
Major corporation subsidiary in our area almost went under because their call center was indecipherable. But “All” of these people were called by their sponsore “fluent - native” at the 4+ level. It was a joke. The culture of their countries ensured that they could pressure/purchase their way to a recommendation.
It’s one thing to be able to hold a restaurant conversation. It’s quite another to explain technical processes, steps, and design.
2-4 Indians that do about 20% cumulative of the work of one American or Asian. Their product in never finished and needs constant refactoring. When will management understand you get what you pay for...
“compete with the skills of many foreign college students”
BS. The skills learned in India are all theory and no implementation. I have never seen one Indian yet take a project to completion without massive assistance and I have been in software since late 80’s.
Poor Indian coding is the cause of many of my company’s product issues, but no one wants to be honest enough to point out the real problem. Couple that with the problem of hiring domestic help at higher rates and providing insurance benefits, and you get the problems we’re seeing now.
Who said I was bashing Americans? I’m pointing out statistical facts. We’re getting our clocks cleaned by India and China, because our students are not learning anything of substance in high school and then expecting to “catch up” in college. It doesn’t work that way.
Get down off your soapbox, sir. We’re on the same page.
Why do American tech companies want to do this to Americans? Are they nuts? Companies are not allowed to discriminate in employment with a detailed plan to shut out Americans from employment.
The DOD and the rest of the country needs top notch American tech people. Why be dependent upon foreigners for such an important skill and industry? This will put China and Japan and others at the cutting edge of future tech development and leave the US with nothing. Our economy will be permanently crippled by this treason into the future. They are doing it on purpose. They must hate the US.
“They are NOT elite scientists and engineers.”
True - but they work for less and that’s the draw. Even if they’re ‘average’ they’re the people at the top in the cultures they come from... AND they steal jobs from Americans.
If you have the time, please check this out:
https://www.youtube.com/watch?v=LPjzfGChGlE
“I’m pointing out statistical facts.”
BS. Your posting history is that of an H-1B lobbyist.
The facts DO NOT say Americans are not qualified and that foreigners are more qualified.
Lobbyists always have to lie because no one accepts what they are selling otherwise. What a lair.
America First! America Wins! Go Trump!
And even then you are missing the L1 visa holders.
Fixed.
Yep, there's a "Talent Shortage" of burger flippers when the wages offered are less than $15/hour, right?
/s
Only if you sample incorrectly. The US, even at the university level, is more open than many countries for the same education. Why else would they want to go here if they could snag a slot at home?
As for foreign students, I’ve seen good but a lot more “group test takers”. While one can’t speak for the entirety of them, but it is a well-known and easily observed practice. That kind of academic dishonesty is how they manage to overrepresent competence.
As for my own studies, I stuck with a more technically inclined discipline - Management Information Systems - which combines the technical side of CS with the long-terms skills of business management. Yes, there was math in it, although I opted for statistics when filling in that requirement.
No, but there is a definite shortage of software developers that would work for a “body shop” agency for $15/hr, even for the cheaper parts of the country.
Even the $15/hr part would be troublesome outside of edge cases. The only way it happens is through government support of guest worker programs.
So you do not believe in the free markets and the laws of supply and demand. Are you done kind of economic retard?
Re”Our colleges should stop socializing their students like children and start training them like adults so they’re actually prepared for the workplace.
Quicken founder Dan Gilbert is a pretty liberal guy but even he has complained that he gets all kinds of new employees with great degrees who have no actual knowledge or interest in doing the job. Gilbert is the kind of guy who puts a game room and basketball court in his offices yet still has employees who take off for 3 or 4 days to go to comic con without notice.”
Perhaps Dan Gilbert ought to look at the huge pool of proven, experienced IT workers who can no longer get IT work after they were replaced by ‘Guest Workers” and OPT’s that they were required to train as a condition of getting severenc pay.
Re”“talent shortage” in America at the wages being offered.
Fixed.”
Plus a ‘guest worker’ can take advantage of loop holes and pay next to no taxes whereas there are no loop holes for Americans.
Back when I was still flying helicopters, I talked with a pilot flying Sikorsky S-61s out to the oil platforms in the North Sea. It is a highly skilled job, dangerous, and he was responsible for a $3 to $4 million aircraft and the lives of his crew & passengers. He mentioned that the diesel engine mechanics on the oil platforms were better paid than he.
About that time, I needed an interim job, and talked with the NC Forestry Department about flying their fire fighting helo for the summer. They offered me the job flying a Vietnam era UH-1B (Huey) water bombing forest fires. I would be required to live in the county where the helo was based. For a 3 month contract. I said, "I'll pitch a tent next to the helo."
"No, you must be a resident. And the pay is $9.93 hour."
That, my friend, is supply & demand. Pilots love to fly and are often willing to assume enormous responsibility, face danger and receive meager pay for that privilege. As a USMC Captain flying a $6.5 million (at the time - now about $25 million) CH-53, spending 25%+ of my life away from my family, ready to go to war at any time, I learned that a Greyhound Bus driver with similar seniority earned 50% more than I.
BTW, I declined the $9.93/hr flying an old bird, water bombing forest fires...because if I "moved to the county where the helo was based", I'd lose money and be away from the family.
High tech workers, programmers, etc. are not entitled to a salary higher than someone else who is willing to do the same job for less money. Astronomical sports & entertainment salaries have distorted our perception of reality.
Contrary to your assertion, I am fully aware of the relationship between supply & demand.
So your position is anti American. The are more STEM grads than jobs.
How about this: America for Americans. There is a novel idea.
You either believe in America and Americans or you don't. You cavalierly throw out Americans and want scabs imported from the turd world.
You either have country or you don't.
Funny I thought most veterans like you and I were patriotic and not Free Traitors™. There is a war going on and you are on the wrong side.
Go Trump go! To hell with anti American Free Traitors™
The difference is that bus driver was probably an American.....
You're batting 1.000 on logical fallacies, CodeToad. Care to add more?
I think your first comment points out who's lying, as I've never lobbied for offshoring. You'd be hard-pressed to find me advocating for offshoring EVER, nonetheless on FR. I've lost 3 previous IT gigs to offshoring. You won't find anyone more against the practice.
My post was discussing the American educational system's inability to churn out quality students in the STEM disciplines. I'm not advocating for offshoring because of that. I'm stating that offshoring is a consequence of it. Until we fix our education system in this country, we're going to continue to fall behind the rest of the world in STEM disciplines. According to a 2012 survey, we rank in the middle (23 math/31 science) of 65 industrialized nations among our students. You are more than welcome to fact check this, as it's been plastered all over American media for years:
Lack of interest and aptitude keeps students out of STEM majors
The Geography of Foreign Students in U.S. Higher Education: Origins and Destinations
U.S lag in science, math a disaster in the making
I'm not going to continue in this palaver if you're going to resort to attacking me or having temper tantrums. I never once said that an offshore resource can do a better job than an American resource. I'm saying that American resources never get the chance, because they aren't as well prepared for the math and science portions of STEM jobs; and they are outpaced by offshore groups, because their services, no matter the quality, can be had for less than 30% that of a comparable American resource. Blame American business for that, not the workers themselves!
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.