Senate Hearing: No Consensus on Protecting American Workers

By John Miano, March 22, 2015

I testified last week before the Senate Judiciary Committee on Reforms Needed to Protect Skilled American Workers. It was a great honor to be invited. However, participating in an event like this highlights the growing isolation between Washington and the rest of America.

At one time there was a consensus that American citizens should come first under our immigration laws. The Supreme Court has repeatedly held that preserving jobs for American workers is a primary purpose of our immigration laws; see, for instance Reno v. Flores, 507 U.S. 292, 334 (1993).

No such consensus exists in today's Washington.

The impetus for the hearing was the recent replacement of Americans by H-1B workers at Southern California Edison, Northeast Utilities, Cargill, and Walt Disney World.

You would think that members of Congress, upon learning that Americans workers are being replaced by foreign workers, would response in unison, "This is outrageous. That needs to stop now!"

I sensed such outrage from Sens. Durbin, Grassley, Sessions, and Vitter—but none of the rest present.

In fact, the impression I came away with is that most of the senators did not think it is even a problem when Americans are being replaced by foreign workers.

(Senators, that was just my impression. I know that some people put on a restrained face hiding rage behind that. If I left out any senator at the hearing who was outraged, I will be happy to amend this post and link to any statement you have made that Congress should act immediately to stop the replacement of Americans by foreign workers.)

But there were affirmative statements that reinforced my impression of a lack of concern. One of these was related to the displacement of Americans by H-1B workers.

I have previously described how Congress has made it perfectly legal to replace Americans with H-1B workers in nearly all cases.

If you piece together the jumble of statutes governing the replacement of Americans by H-1B workers, you find that is perfectly legal to replace an American with an H-1B worker unless all of these conditions converge:

  1. The H-1B worker is paid less than $65,000; AND
  2. The H-1B worker does not have a master's degree; AND
  3. The employer has more than 15 percent of its workers on H-1B visas (only counting those workers that fit #1 and #2 above); AND
  4. The replacement takes place within 90 days of making the H-1B visa petition.

This has been designed to allow employers to replace Americans with cheap H-1B workers.

In response to the problem of Americans being replaced by H-1B workers, Sen. Hatch suggested changing the law so that the $60,000 figure above becomes $95,000.

If I could sit down one-on-one with Sen. Hatch, my first question would be, "Why, Senator, is it so hard for you to simply make it illegal to replace Americans with H-1B workers?"

Sen. Hatch raised a couple of issues we could discuss. He pointed out that the I-Squared Act includes money for training. "But Senator, Americans don't need training. They need jobs. It is the H-1B workers that need and receive the training."

Sen. Hatch also wondered why people who opposed S.744 ("Comprehensive Immigration Reform") now call for reform of H-1B. "Senator, S.744 had no H-1B reform. All it did was increase the number of visas and made the rules even more complicated. The Department of Labor Inspector General sends Congress a report twice a year calling for reform and the folks who wrote S.744 simply ignored them." One-on-one, I could show the senator how S.744 simply reworded H-1B provisions with no change in operation.

Unfortunately, as this statement from Hatch's office makes clear, Sen. Hatch, simply parrots what he is fed by industry lobbyists without applying any critical thought. For example, statements like this:

Foreign-born STEM workers are paid on par with U.S. STEM workers; there is no verifiable evidence that foreign-born STEM workers adversely affect the wages of American workers by providing a less expensive source of labor

...made in the face of Americans being replaced by cheap foreign workers at Southern California Edison, Walt Disney World, and Northeast Utilities, diminish the United States Senate as a whole.

While at the hearing, I saw that a number of organizations had put out a statement that included the following claim:

MYTH: Foreign workers displace American workers in the science, technology, engineering, and math (STEM) fields.

The liars who signed this statement are:

  • American Immigration Lawyers Association
  • BSA | The Software Alliance
  • Compete America Coalition
  • Computer & Communications Industry Association
  • Consumer Electronics Association
  • Council for Global Immigration
  • FWD.us
  • HR Policy Association
  • Information Technology Industry Council
  • National Association of Home Builders
  • National Association of Manufacturers
  • National Venture Capital Association
  • Partnership for a New American Economy
  • Society for Human Resource Management
  • Semiconductor Industry Association
  • Silicon Valley Leadership Group
  • Tech CEO Council
  • TechNet
  • U.S. Chamber of Commerce

While I was in the hotel room the night before, I watched a Rachel Maddow segment on MSNBC in which they went over a poll that asked Americans what the biggest problem in the country was. The number one problem, by far, was government.

It would behoove some senators to read Aesop's fable of The Ass and His Purchaser. The moral is "You are known by the company you keep."

Senators, when you hang out with liars, like those listed above; when you put their statements in the record; and when you repeat their statements without question you look like an ass too. You are measured by the company you keep.