Founder’s Corner

Dear All,

On Tuesday, Senator Alex Padilla (D-CA), chair of the Senate Judiciary Committee’s Subcommittee on Immigration, Citizenship, and Border Safety, held a hearing to “examine the challenges immigrants face in seeking lawful permanent resident status, and the need to overhaul and modernize the legal immigration system to preserve family unity and grow our economy.”

Senator Padilla presented three witnesses. Two were immigration attorneys and the third, a “documented dreamer”, discussed the Green Card backlog for Indian nationals on H-1B/L-1 visas and how it affects their children who are at risk of “aging out” if a Green Card is not received by age 21.

Given the witnesses called, and Senator Padilla’s record on immigration related topics, it’s no wonder the hearing centered on an old saw — the urgent need to pass legislation that among other things will expand visa numbers, demolish country cap quotas, staple a Green Card to a college diploma, and grant amnesty for those subject to removal.

Moreover, all of this was predicated on the myth that more immigration is the only solution to today’s labor shortage.  Not one senator mentioned other credible solutions like raising wages, investing in skills training, or subsidizing services such as childcare and worker protections as means to alleviate the shortage. Even more distressing, no one stood up for U.S. workers nor discussed the harmful impact the H-1B visa program has had on the U.S. workforce.

Only half of the senate Subcommittee members attended the hearing and two in particular, Thom Tillis (R-NC) and John Cornyn (R-TX) have long fought against reforming the H-1B program and have actively worked to upend existing reforms and pass hurtful legislation such as S. 386, The Fairness for High Skilled Immigrants Act. Both preside in states with a high concentration of H-1B visa holders, so I imagine one must toe the line when it comes to Infosys.

Senator Tillis spoke about working for the accounting and consulting firm, Price Waterhouse Coopers (PwC), before being elected to the senate and that many of his H-1B co-workers had PhDs. I’m not sure what use a consultancy has for PhDs, but this was an obvious attempt to exaggerate the talent level that comes in on the H-1B and a common tactic used by immigration expansionists.

Tillis’ remarks at a 2017 US-India Friendship Council and US-India Business Council event further substantiate his expansionist position “for the U.S. to be a leader in innovation, the country needs to keep bringing in workers from India to fill high-tech jobs.” And “we should have a policy that basically staples a green card on the back of their diploma.”

That said, I wouldn’t count on him defending any reforms to the H-1B visa program or working to protect the interests of American workers anytime soon.

Next up was Senator Cornyn. For those not familiar with his antics to defeat H-1B reform, we’ll take a walk down memory lane.

In 2010, during the Obama administration, Donald Neufeld, an Associate Director at the U.S. Citizenship and Immigration Services (USCIS) took direct aim against IT staffing firms that leased H-1B workers to third-party employers. The Neufeld memo, as it has come to be known, required staffing firms to maintain day-to-day control over their sponsored H-1B workers who were working at third-party sites.

Prior to the memo, staffing firms leased the H-1B worker to the third-party client (typically a Fortune 500 company), and that third-party client managed the day-to-day work of the H-1B worker. This convenient loophole allowed the third-party clients to fire their direct employees (U.S. workers) and replace them with contract workers (H-1Bs) leased from IT staffing firms. The staffing firms couldn’t be prosecuted because they were not the direct sponsor of the H-1B visa.

The Neufeld memo essentially closed the loophole putting a dent in IT staffing firms’ business model and as one might expect the IT staffing community fought back.

They hired TechServe Alliance, an IT lobbying organization which filed a lawsuit claiming the U.S. government improperly and without valid legal basis altered a long-standing policy that allowed IT staffing firms to obtain H-1B visas on the same basis as other companies.

Notwithstanding, the USCIS didn’t budge, and if this were a country where the rule of law stands and elected officials act in the best interests of citizens, it would have ended there. But it didn’t.

TechServe Alliance pleaded their case to Senator Cornyn and Cornyn a shill for the big business lobby and knowing Texas is a hotbed for IT businesses, sent a letter to USCIS Director Alejandro Mayorkas (yes, the same Mayorkas who is now DHS secretary).

Exercising his authority as ranking member of the U.S. Senate Judiciary Subcommittee on Immigration, Refugees and Border Security, Cornyn argued:

“Without H-1B workers, many companies who are part of the multibillion-dollar IT industry will either move offshore or simply go out of business — both of which will have a significant impact on the U.S. workforce,”

He urged USCIS officials to meet and hash things out with TechServe Alliance, and in due course, the Neufeld memo was vaporized and the IT staffing firms were back in business.

That turnabout has had dire consequences. Despite public outcry, the displacement of IT workers has continued unabated and in 2015, all of Disney’s IT workers were replaced by an H-1B visa dependent consulting company.

Any hopes of H-1B reform remain distant as long as Tillis and Cornyn walk the halls of the Senate. They’ll ensure any such bill never sees the light of day.

Thus, our best option for reform is for the U.S. Department of Labor (USDOL) and USCIS to issue rulemaking changes to the H-1B Visa program that reduce the abuse. The Trump administration did this in their final months. Sadly, their changes were either met with lawsuits or dismissed by the Biden administration.

And I wouldn’t expect the Biden administration to issue any rule changes or fix the prevailing wage rates. They have the power but haven’t exercised it. That’s on purpose.

I leave you with an interesting twist from the hearing. One of the witnesses, Lynden Melmed, used to serve as Chief Counsel for Senator Cornyn and as Chief Counsel for the USCIS. He’s now a partner at the law firm Berry Appleman & Leiden and “oversees the firm’s compliance and government affairs practices”. In other words, he’s another pawn of the corporatocracy.

During the hearing when asked by Senator Cornyn about H-1B workers in the Green Card queue, he responded, “employers have already gone through a multiyear process to establish there’s no qualified available American worker. . . for the employees they sponsor for Green Cards.”

This is rubbish! We all know the PERM process — the series of steps that an employer must follow to prove that no U.S. citizen worker is available to fill the position and that wages will not be driven down by hiring foreign workers when sponsoring an H-1B worker for a Green Card — is a total sham. That became apparent in 2020 when the DOJ sued Facebook and we saw the underhanded tactics Facebook used to deny jobs to qualified American workers. It’s amazing not one Senator mentioned the Facebook case.

Melmed also responded to a question posed by Senator Padilla stating, “the backlog that they are experiencing was not contemplated by Congress.” Really? A blind man could have seen this coming when congress allowed increases to the H-1B cap in 2000 and 2005 through the passing of the American Competitiveness in the 21st Century Act, and allowing H-1B workers to extend their visa past the 6 year duration while waiting for Green Cards. In fact, Cecilia Rouse who is the currently the Chair of Council of Economic Advisers under the Biden administration made this prediction in 2001 in a piece she published for the Economic Policy Institute. Specifically, she wrote and predicted:

“And one of the clearest findings of the report has gotten surprisingly little attention: increasing the number of temporary H-1B visa workers without any corresponding change in the permanent immigration system will cause the system to malfunction.”

Adding further insult, Melmed’s firm has processed PERM petitions for Facebook. In fact, they processing them during the period the DOJ was investigating Facebook. Were they the firm behind the schemes that enabled Facebook to deny jobs to qualified American workers?

Inquiring minds would like to know.

In solidarity,

Kevin Lynn
Executive Director
U.S. Tech Workers

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Senate Judiciary Committee Holds Hearing On Removing Barriers To Immigration

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