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.
And the pundits wonder why Trump is so popular ...
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.
Take it from me, a white Christian American male with 20+ years of IT experience, if you want to make it in American IT, you have to bring a marketable skill to the table. Having a BS in Computer Science doesn’t get you in the door, because you’re a commodity (a programmer) whose salary can buy 2-4 Indians to do the same job around the clock.
I have a BS in English, a Masters certification in professional writing, and several industry certifications. If you think a degree in a STEM field will be a guarantee, you’re sorely mistaken.
Sadly, the American media isn’t discussing this honestly, and most kids in school now are going to be shocked to learn they won’t find work out of college unless they want to prostrate themselves on the altar of retail sales or customer service. Further, they’ll bitch to their friends and coworkers, and it’ll be the “Evil American businessmen” who are at fault; nevermind the fact that the American government is laughing all the way to the bank.
Ping.
The “H-1B 65,000 Quota” number is everywhere, but that is completely misleading.
That's the yearly quota.
But the H-1B is automatically renewable for six years!
And, there is an additional 20,000 annual quota for PhD STEMs.
And, there is no H-1B quota at all for universities, government agencies, and nonprofit laboratories.
The lowest total estimate for H-1Bs currently working in the USA is 550,000.
The lowest total estimate for OPT “students” currently working in the USA is more than 100,000 - and that number, which has no quota, is now rising at 30% per year.
Just as important as the raw numbers is the quality of these foreign workers.
They are NOT elite scientists and engineers.
They are completely “average” scientists and engineers who compete directly against “average” American scientists and engineers.
My advice to 18 year old Americans just starting college: unless you have elite skills, do not even THINK about majoring in science and engineering.
Major in business management, or finance, or an area where your English language skills, interpersonal skills, and cultural knowledge of America give you a clear advantage over the foreign imports.
PERM Fake Job Ads defraud Americans to secure green cards(FLASHBACK)
http://www.freerepublic.com/focus/news/3326108/posts?page=6
This 2007 video shows the conspiracy that contributed to the mass unemployment of millions falling out of the workforce.
Forbes on Fox and Cavuto show kept repeating: “talent shortage” in America....got to bring in outside help. American should be offended.
Fixed.
We just offered an Civil Engineering intern a full time job upon graduation at 56k. Looks like i got a bargain.
Why do you hate Capitalism? /s
Even the STEM graduates from colleges across the nation can’t compete with the skills of many foreign college students. I studied computer science, then computer engineering, then electrical engineering before finally settling into English Comp, and I can tell you that most American students struggled in collegiate math and Engineering courses. Our children are not being taught higher level maths in high school which puts them at a significant disadvantage in college.
There was an article recently that showed the number of students in remedial college math courses has skyrocketed over the last 20 years. Students are not graduating from high school with an understanding of math and science the way that Indian and Chinese students are.
I often found myself struggling with high-level calculus questions while Indian and Chinese group members were blazing through the calculations, oftentimes in their heads. I’m more advanced than most with my understanding of math, but you put me up against a Chinese or Indian kid out of a middle-tier grade, they’ll blow my doors off.
People wonder why STEM college participation is way down. This is it. Since about 1994 kids have seen their parents get “displaced” by foreign workers. The UAW wouldn’t put up with this!
“Even the STEM graduates from colleges across the nation can’t compete with the skills of many foreign college students.”
That’s a load of bullsh*t.
It is well known that the vast majority of foreign IT workers do a terrible job and many of us have made careers out of going in behind them and cleaning up.
I have a friend who’s in the STEM business, and who sits in on the hiring interviews. He says there are one of two things that he nearly always finds: (1) the English is so bad that the knowledge is not useful. It can’t be communicated in technical builds. (2) the knowledge is subpar, because so many foreigners live in countries in which certain classes of people are guaranteed passage due to connections, transfer of payments, or caste.
Despite reported differences in the STEM knowledge of our own people, there is a real concern that we are testing ALL of our students while they are testing only those who qualify for academic tracks in their economies. Not everyone continues in school in many other countries and are out in the work force as young as mid teens. If we are test A-F students, and they are testing only A-C students, then you can see there would be a great discrepancy.
IT workers, yes. I’m talking about actual engineers. I’m talking about people who need to understand discrete mathematics to properly configure redundant WAN paths. I’m talking about mathematicians devising new algorithms for secure communications. I’m talking about scientists studying neutron physics.
I’m NOT talking about help center representatives, user administrators, remote desktop technicians, server administrators, or programmers. Trust me, I know what you say is very true. I’ve been cleaning up after them for 15 years.
Agree on the English. We actually have to approve admins they hire in India based on a telephone conversation about basic administrative tasks. If we can’t understand them, they don’t get hired. That’s pretty sad, if you ask me.
This is also a problem with “leadership.” Even our managers tell us, “Just hire an offshore resource, burn through them, and you can discard them after 3 months.” This is unfortunately the mentality today.
I am talking about ANY engineer. ANY.
The USA builds things no other nation does. Classified projects that are decades ahead of any other nation, all built 100% by AMERICAN engineers. Did you think about that?? Of course, not. It is so much fun to bash Americans because everyone else does it, and so it must also be true.
I often found myself struggling with high-level calculus questions while Indian and Chinese group members were blazing through the calculations, oftentimes in their heads. I’m more advanced than most with my understanding of math, but you put me up against a Chinese or Indian kid out of a middle-tier grade, they’ll blow my doors off.
...
They are excellent at memory skills, but terrible at improvising. They make good robots or slaves, which is what poorly managed companies love.
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