President Biden’s Department of Labor (DOL) is proposing a new rule that will hurt Americans employed in Science, Technology, Engineering, and Mathematics (STEM) occupations by making it even easier for employers to discriminate against U.S. workers in favor of foreign workers on H-1B visas.
Before we dig into what this proposed rule change is, here is a quick primer on the H-1B employment visa:
When an employer posts a job opening and seeks to fill it with a foreigner on an H-1B visa, there is no legal requirement for that employer to first look for qualified American workers. This why employers are so enamored with the H-1B visa.
However, this changes when an H-1B visa worker is sponsored for an employment based green card and is authorized to live permanently and work in the US. At that point in time, the employer is required to conduct a labor certification test to prove there are no qualified Americans available for that job, and this labor certification test is referred to as PERM.
The PERM labor certification process requires employers to show that (1) no qualified and willing U.S. worker was available to take the job in the specific location where the job is located; and (2) the foreign worker will not adversely affect the wages of U.S. workers in similar occupations.
Recently, the Department of Justice (DOJ) found Apple and Meta were guilty of circumventing the PERM process in order to prevent Americans from applying for jobs they earmarked for foreigners. Regardless, as flawed as the PERM process may be, it is the last remaining barrier protecting U.S. workers from being displaced willy nilly in favor of cheaper exploitable H-1B workers.
The Biden administration’s Department of Labor (DOL) intends to do away with the PERM process by this proposed rule change that will delegate STEM occupations to what is called a “Schedule A” list. An occupation listed on Schedule A is exempt from the PERM process because it is believed a major labor shortage exists in that occupational area.
Although the supposition of a labor shortage is in fact an economic fallacy, nurses and those with extraordinary abilities in the arts and sciences are classified as Schedule A. This new rule will extend the Schedule A benefits to all STEM occupations! The tragedy being, STEM is a very loosely defined category worker to begin with. If this goes through, every H-1B worker, could designate their occupation as a Schedule A.
Jessica Vaughan, Director of Policy Studies at the Center for Immigration Studies, sums it up, best, “the Biden administration is seeking to exempt more employers from having to show they tried and failed to find a US worker before being approved to hire a foreign worker. They want to make it even easier for certain employers — like Big Tech, which is already notorious for discriminating — to avoid hiring Americans.”
And all this at time when tech companies, the largest beneficiaries of H-1B visas, are laying off thousands of workers and simultaneously imposing hiring freezes. You can’t complain of worker “shortages” when workers are being laid off at these levels.
Truth be told, and according to Ron Hira, associate professor of political science at Howard University and research associate at the Economic Policy Institute, there is no STEM worker shortage in the U.S. “The alarms about widespread shortages or shortfalls in the number of US scientists and engineers are quite inconsistent with nearly all available evidence.”
John Miano, an attorney with the Immigration Reform Law Institute aptly stated, “The Biden administration’s disdain for working Americans is on full display with this proposal. They want to shred all of what remains of the protections for American workers in the employment-based green card process. Silicon Valley billionaires can celebrate while the rest of America eats cake.”
Those pushing for this change insist that the real point is to help visa workers get green cards faster and ease the backlog. However, without increasing the actual number of green cards available each year, it will only exacerbate the green card backlog.
Designating “STEM” as a Schedule A occupation is just another example of the role corporate interests are playing in crafting policy that hurts workers of all stripes and places our national interests at risk. Americans concerned about this should submit comments about this rule before the May 13, 2024, deadline here.