New Legislation Has Familiar Goal: Displacing U.S. Tech Workers

Indian corporate manager leading virtual multicultural business team meeting

Like all America, Capitol Hill is focused on Russia’s invasion of the Ukraine and watching the continuous updates with apprehension. But even though Congress’ attention is diverted, its dreary business which often includes American worker displacement continues.

Last week, Iowa Republican Sen. Chuck Grassley and Illinois Democratic Sen. Dick Durbin introduced S. 3720, the “H-1B and L-1 Visa Reform Act.” Senators Richard Blumenthal (D-Conn.), Tommy Tuberville (R-Ala.), Sherrod Brown (D-Ohio), Bill Hagerty (R-Tenn.) and Bernie Sanders (I-Vt.) are cosponsors.

Over the decades, the H-1B and the L-1 visas for international transfers have displaced hundreds of thousands of mostly U.S. tech workers, but also other white-collar professionals. Moreover, the easy availability of foreign nationals in the labor market dims the employment prospects for recent U.S. college graduates.

The new legislation is touted as bipartisan which immigration realists define as a squishy Republican teaming up with a radical Democrat to promote a bad bill with the media and their congressional peers. Remember the bipartisan 2013 Gang of Eight amnesty wherein four Republicans and four Democrats all had the same F- immigration grade. Or think back further to 2005 and another bipartisan hoax, the McCain-Kennedy immigration bill authored by the most extreme immigration advocates, the Arizona Republican and the Massachusetts Democrat.

Although Grassley during his 33 years in Congress has been reliably pro-border and interior enforcement, staunchly opposed to refugee and asylum fraud, he’s been an equally dependable voice for more employment-based visas for foreign nationals. The jointly issued press release from Grassley and Durbin sounded upbeat and encouraging. Grassley: “Our bill takes steps to ensure that the programs [H-1B and L-1] work for Americans and skilled foreign workers alike.” Durbin: “For years, outsourcing companies have used legal loopholes to displace qualified American workers, exploit foreign workers, and facilitate the outsourcing of American jobs. Our legislation would fix these broken programs, protect workers, and put an end to these abuses.” Unfortunately, S. 3720 does none of that, but has extensive flaws that, predictably, are harmful to U.S. tech workers.

3720 proposes to eliminate the current random H-1B lottery and replace it with a presumably better system, each a noble goal. But it falls far short and instead prioritizes for the coveted visa four different categories of international students with degrees from U.S. universities: students with advanced degrees in science, technology, engineering and math (STEM), students with advanced degrees in non-STEM fields, students with bachelor’s degrees in STEM, and students with bachelor’s degrees in non-STEM. The new system would strongly favor the thousands of Indian and Chinese nationals currently enrolled in U.S. university STEM programs.

Conspicuously absent from S. 3720 is an effort to eliminate the dual intent of the H-1B. Originally intended as a temporary visa wherein the workers eventually returned home, under the Immigration Act of 1990, the H-1B became a dual-intent visa when Congress subsequently allowed the visa holders to apply for a Green Card. The ill-fated congressional decision gave employers undue control over their international employees, a type of modern-day indentured servitude. H-1B visa employees’ failure to comply with employers’ often unreasonable mandates – excessive unpaid overtime or inadequate working conditions – could result in threats to deport the noncompliant worker, and dash their Green Card hopes. Dual intent also created a huge Green Card backlog, an estimated 9 million.

True H-1B and L-1 visa reform would ideally put programs on an extended pause with an eye on eliminating them. Both visas are American job killers, serving only to enable employers to hire cheap, pliant labor. In their Atlantic Council report, Ron Hira and Bharath Gopalaswamy summed up the H-1B program that the Grassley-Durbin legislation does little or nothing to improve. They wrote: “The current system undercuts opportunities for U.S. workers and enables the exploitation of H-1B workers, many of whom are underpaid, vulnerable to abuse, and frequently placed in poor working conditions…. the program has never been fixed to meet the original promises made by Congress of safeguarding U.S. jobs. Instead, the program has been expanded to allow even larger numbers of H-1B workers, admitting them for longer periods of time, while its flawed governing rules have remained as they were in 1990.”

The authors recommended that H-1B workers be paid competitively, that employers prove beyond any doubt that they’ve recruited Americans and that visas be allocated to those who truly are the best and brightest by prioritizing selection based on highest wages. The legislation proposed by Durbin and Grassley does nothing to improve the H-1B program or to enact the reasonable, achievable solutions that Hira and Gopalaswamy recommended.

Instead, S. 3720 reshuffles the H-1B selection process to prioritize those who came in as international students and obtained an advanced degree in STEM and are paid the minimum prevailing wage. In other words, with the Grassley-Durbin bill, the bulk of H-1B visas would go not to Indian contract workers brought in through outsourcing firms, as is the current situation, but instead to international students who already have access to the Optional Training Program, the nation’s largest guest worker program.