Inner Workings of the H-1B Program Parallel Those of Marital Relations

Many think the H-1B temporary worker program is overused and does harm to many skilled Americans who might otherwise hold these high-tech and other professional jobs. This examination may be helpful to those of us who study the program .

Critics of the program notice, appropriately, how it has lowered wages for both U.S. residents and foreign workers in high-tech industries, how it has discouraged Americans from doing graduate work in these fields, and how it puts foreign workers into a virtual indentured worker status.

This blog provides a bit more nuance regarding the indentured worker status of some of the alien workers, usually employed in software development and other computer-related activities.

My point is that not all of the foreign workers are equally tied to their employers all the time, and that the growth of those ties, to the point of indenture or near-indenture, can be related to the changing of relationships that occur in male/female relationships. Let me suggest that there are four phases of marital relations and four roughly parallel phases of the H-1B program, as follows:

In the early days of courtships both parties are living in something like a free market. There are a number of unattached members of the opposite sex that may be attractive to them and there is a freedom to date, to love, and to live with the object of one's desires; further, one or the other of the temporary pair in question can leave the relationship, or both can, and perhaps return to it. The ties are as loose or as tight as the parties agree. Anything is possible.

Stage One, H-1B: Recruiting. Similarly, for the better-qualified would-be H-1Bs, and particularly for the ones already in this country, there is a fairly open labor market in which workers can seek out employers, and vice versa; sometimes with more than one employer pursuing a given H-1B-to-be, as I noted in an earlier blog that was republished in Immigration Daily. This is not the case with many other nonimmigrant worker programs, particularly the low-wage ones.

One of the most important parts of this nonimmigrant labor market consists of the summer jobs between terms at the university, when employers hire the then F-1s (foreign students) to see if they want them for H-1B jobs later, and when workers size up their employers. At this point, though this part of the whole labor market is depressed by the general presence of the H-1B program (in my eyes at least), no one is tied to anyone else yet.

I have picked up some insights into this process over the last dozen years in which I have been managing, as a volunteer, a free income tax advice program for graduate students at a major DC-area university. Many of our clients are foreign students, and many of these are H-1Bs, ex-H-1Bs, married to H-1Bs, or, most likely, would-be H1-Bs. As a sidebar to the income tax advice, I encourage them to talk to me about the program.

Stage Two, Marital: Marriage. The couple has now taken the major, and legal, step of marriage. They are not (or should not be) looking for other options at this point.

On the other hand, the marriage is new, there presumably is not much in the way of accumulated money and property to squabble over, and above all else, there are no children. If the couple does not get along in these early years, divorce (unless one or the other has strong religious feelings about the subject) is relatively easy. Painful, of course, but without the complications faced by older couples.

Stage Two, H-1B: Being Hired. The first period of H-1B employment is often similar to a new marriage. The worker and the employer are in a firm relationship with each other, but each is checking the other out to see if this is a good fit.

If the worker does not think it a good fit, he or she can move to another H-1B employer; it is a little more difficult than a U.S. resident moving from job to job, but not all that difficult, I gather. If the employer does not think it a good relationship, he can always discharge the worker.

If the worker likes the job, he asks the crucial question: Will the employer try to get me a green card? Some employers often offer the green card, others rarely do, as Professor Ron Hira of Rochester Technical Institute has pointed out.

The worker's request for the green card is a key point in this conceptual second stage of the H-1B status. As long as the request is pending, the worker becomes more and more indentured to the employer. He or she does not feel free to move around the labor market, because the current employer is seen as more likely to offer the green card than other, unknown employers.

When the decision does come regarding the green card application the worker either is rejected, putting him back in stage one, or is accepted, moving the worker forward into stage three. Some employers, my student-clients have told me and as I reported in an earlier blog, inform entering H-1B workers that they will not even think about the green card until after the worker has been with the corporation through the first full three years of an H-1B visa, thus keeping them in stage two that much longer. Other aliens have told me that they were hired in agreements in which the employer simultaneously offered an H-1B appointment and a green card.

In the latter circumstance, the worker goes directly from stage one to stage three.

Stage Three, Marital: Parenthood. The arrival or the expected arrival of a child puts the couple's relationship into a new light. Whereas previously all they had to worry about were two people who were equal, or nearly equal, now there is a real, or prospective, helpless infant to care for as well. Divorce becomes much more problematic; it may not be a great marriage, but the presence of the baby often discourages any immediate talk of separation.

Stage Three, H-1B: Indenture/First Class. Meanwhile, back on the H-1B job, if the alien has been the subject of a green card application, the worker is highly likely to stay with that employer because the filing of the application is tangible proof that he or she is on the path to legal permanent status in the United States. Other H-1B employers might offer more interesting or better-paying jobs, or even both, and all that combined with a promise of a green card, but no alternative employer can offer anything but a longer wait for the green card. If the time difference is a matter of months, a self-confident H-1B worker might switch to another employer, but that would be unlikely.

This is the stage when the H-1B worker becomes truly tied to an employer, and is thus likely to be docile in manner and non-obstreperous in seeking a raise. A worker in this status is also likely to be above average or the employer would not have taken the time and money to apply for the green card. So, oddly, the best of the H-1B workers are also the ones most likely to be indentured.

The length of time a worker, notably from China or India, is in what I call stage three/first class, can be extensive. It depends, in part, on a visa system completely separate from the H-1B program. This gets complicated.

The green card would come through the immigrant screening process in which the worker would be classified as an EB-2, standing for the second category in the numerically-limited, employment-based system. The ceiling for EB-2s (sometimes adjusted up a bit for the non-use of other visas) is routinely about 40,000; meanwhile, there is an overlapping nation-of-origin ceiling covering all numerically limited family- and employment-based visas of 25,620. This applies only to the nations that send us the largest number of immigrants, including India and China.

The combined working of these two allocation formulas means that the waiting period for EB-2 workers, who are often also H-1B workers already in the nation, is sometimes three years from the time the employer has filed for the green card, sometimes two years.

The waiting time starts from when the employer filed for the green card, not when the H-1B period began. There is, however, no ceiling-related waiting time for EB-2 workers from places other than India or China, but the big majority of EB-2s are from those two countries. Further, and this applies to all applicants from all nations, there is the additional waiting time while the government processes the applications.

Stage Three, H-1B: Indenture/Steerage. There are, of course, H-1B workers who are regarded as good enough for the employers to want to keep them, but not so good that they are willing to file green card applications for them. As Dr. Hira has pointed out, that line is drawn in different places by different employers, with the Indian body shop companies being least likely to offer green cards. These employers know that there is always an adequate supply of would-be H-1B workers in the pipeline, and they also know that they can probably hire away H-1Bs from other employers without promising a green card.

The H-1B in this steerage category is, however, still indentured — not by the favorable prospects of becoming a green card holder, but because of the unfavorable prospects of losing his right to work in the United States, even the temporary right. He, too, is tied to the employer, but by an implied threat, rather than by an expressed promise (of the green card.).

Both of these two subcategories in my stage three may either go home or go on to a third country or be rescued by obtaining a different immigrant or nonimmigrant status in this country. My grandson in-law, an otherwise indentured H-1B, is moving out of that category because of his marriage to my granddaughter, a U.S. citizen.

Another (but less likely) way out of this stage-three status is for the worker to move to another nonimmigrant status, such as by getting a (G-1) job at an international organization like the World Bank.

Stage Three, H-1B: The Role of HR 3012. Meanwhile, the House of Representatives has passed a bill, HR 3012 now before the U.S. Senate, that is usually described in the press as making more green cards available to high tech workers from India and China.

Not so. What it does is modify the previously mentioned country-of-origin rules to reduce the waiting time for the Indians and the Chinese in the EB-2 category by lengthening the waiting time for workers from other countries.

If passed, this bill, supported by the mass migration people, will have the interesting by-product of lessening the time that the stage three/first class H-1Bs from India and China are indentured. I wonder if big business has figured this out.

Stage Four, Marital: Empty Nest. After the children are safely out of high school, a shaky marriage may dissolve since the household is back down to the marital stage two status of just two adults who are now freer to move around than they were earlier.

However, neither of them is the gorgeous specimen they were 20 years earlier.

Stage Four, Ex-H-1B: Labor Market Freedom. Similarly, with a green card in hand, and citizenship perhaps beckoning, the former H-1B worker, once tied to his or her employer, is no longer compelled to stay with the original firm and can move around the labor market as freely as a resident worker can.

Ironically, in the high-tech industry that former H-1B worker may be 35 years old or older and facing the same biases that are said to dominate many hiring decisions — the bosses want fresh, young, and docile nonimmigrants, and the one-time H-1B may now be none of those things.

For more on the age-bias issue that drives much of the high-tech industry's enthusiasm for the H-1B program, see the writings of Professor Norm Matloff of UC-Davis, such as "The Adverse Impact of Work Visa Programs on Older U.S. Engineers andProgrammers", California Labor & Employment Law Review, August 2006.