Tonight's '60 Minutes' Segment on H-1B: The Fruit of Disastrous 1990 Immigration Act

By John Miano, March 19, 2017

Tonight "60 Minutes" is running a segment on the H-1B visa cesspool. Before that airs, I thought it would be worthwhile to describe how we got to the point where we are.

The paradox of immigration reform is that the people who have to fix what is broken are the same ones that screwed the system up in the first place.

Since the immigration system was created in 1952, most significant immigration legislation has turned out to be counterproductive. The best-known example is the Immigration Reform and Control Act of 1986 that was supposed to solve the problem of illegal aliens. Instead, it demonstrated that, if you give illegal aliens amnesty, more people will come illegally.

However, it was the lesser-known Immigration Act of 1990 that thoroughly screwed up the immigration system. For those of you not up to speed on the various immigration acts, the 1990 Act was the one that gave America the completely dysfunctional H-1B (replace American with cheap foreign workers) and EB-5 (sell green cards so the politically-connected can profit) programs.

The drafters of the 1990 Act demonstrated a level incompetence that has yet to be equaled in immigration legislation. Yes, there were some unforeseen circumstances (such as Indian interests monopolizing the H-1B program) but most of the problems were entirely predictable.

As the 1990 Act was a large piece of legislation, so I will focus on the H-1B aspects of the bill. I use the House Report on the bill to show what Congress said it was doing to compare with what actually happened.

To start the tale of H-1B, one has to go back to 1952. The only "comprehensive immigration reform" bill ever introduced in Congress under the term's plain English meaning was the Immigration Act of 1952. The 1952 Act got rid of decades of legislation and replaced the immigration system with a single unified scheme that limps along now 65 years later.

The 1952 Act created the H category of guestworker visas. H-1 was for people of "distinguished ability." Because it was expected that this meant Nobel Prize winners and similarly distinguished people, Congress exempted the H-1 category from labor protections. H-2 was for everyone else. The H-2 visa had protections for American workers.

Another key aspect of the H category was that it was strictly for guestworkers. Alien had to maintain a residence in their home country and generally could not switch to permanent immigrant status.

A continuous problem in the immigration system is abuse by the executive branch. The executive branch simply ignores the intent and plain meaning of the statutes and does what it likes. Witness the past eight years of immigration lawlessness under President Obama. The old INS started classifying anyone in a profession as having distinguished ability. This meant that American workers in any profession (computer programmers, engineers, etc.) had no protections from foreign labor whatsoever.

This could have been an easy problem to solve. Write a simple bill that clarifies what it means to have distinguished ability, and all is well.

Instead, the Immigration Act of 1990 created a tangle of various visas and weakened the worker protections that existed. The House Report states:

Employers seeking foreign workers have a special obligation to ensure that obtaining workers from abroad is a last resort. (H.R. Rep. 101-723, p. 45.)

However, that stated goal was completely undermined by what Congress actually did:

Nonimmigrants in specialty occupations will be admitted on the basis of a streamlined attestation with no recruitment requirement or any possible challenge prior to entry. (H.R. Rep. 101-723, p. 68.)

That change to a "Trust Me" system reflects either blithering incompetence by the drafters or outright malice. We all know that hiring cheap foreign workers is now the first resort for many employers.

The 1990 Act increased the number of employment-based green cards available. The stated expectation was:

Because the legislation provides additional permanent visas to help address foreign labor shortfalls, reliance on temporary foreign labor is expected to be reduced. The fact that the number of H-1 admissions has increased over the years does not in itself demonstrate a need to sustain such high levels. (H.R. Rep. 101-723, p. 67.)

Additionally, the Committee notes the H(i)(b) category is the only temporary work visa that allows the temporary admission of aliens for permanent jobs. It is important to reiterate, however, that the legislation provides a greater number of immigrant visas in order to accommodate the demand for permanent workers and that this is the preferable means of admitting such workers. Those employers seeking workers for temporary jobs may use the H(ii)(b) visa, of which 66,000 are available. (H.R. Rep. 101-723, p. 68.)

The 1990 Act then undermines that stated goal of reducing guestworkers in favor of green cards by allowing "temporary" guestworkers to have dual intent (i.e., they can also intend to immigrate):

The difficulties encountered by those seeking temporary admission who have also expressed a desire to immigrate at some time in the future have caused severe personal hardship as well as inhibited frequent travel to the United States for business purposes. This has been particularly onerous for the beneficiaries of H and L visas. The Committee sees no useful purpose in denying temporary entry to the United States for business purposes because of an inability to show that a residence abroad will not be abandoned. (H.R. Rep. 101-723, p. 80.)

By expanding to H-1B to include guestworkers, those who might desire to immigrate at some time in the future, and those who want to immigrate now, the 1990 Act had the entirely predictable result of transforming H visas into a try-to-buy system. The employer can string the foreign worker along for years in H-1B status while using the public benefit of permanent immigration as an employment fringe benefit.

As another example of the stupidity here, if H-1B workers were going to be allowed to apply for green cards, then there needed to be per-country quotas on H-1B visas to correspond with the limits on green cards. Anyone with a functioning brain would know that if you have an 8-inch drain pipe flowing into a 1-inch drain pipe it will cause backlogs. The lack of such a restriction reflects the general incompetence that went into the 1990 Act.

This use of H-1B as a try-to-buy system further undermines the green card process. Employers are required to recruit Americans when they apply for green cards. However, when they use H-1B as a try-to-buy, they already have the worker they want. The recruitment during the green card process then becomes a sham.

Also from the House Report:

The Committee believes that increased immigration levels should not lead to a dependence on foreign workers (H.R. Rep. 101-723, p. 45.)

Why would any rational person think that? Giving heroin to a junky does not reduce dependence; why should giving more foreign workers to industry reduce dependence?

Whether from incompetence or malice, the Immigration Act of 1990 was a disaster. That is why we are in the state "60 Minutes" is likely to describe tonight.