My colleague David North recently wrote about a report from the Economic Policy Institute that describes how the Indian offshoring company HCL employs the H-1B visa program to pay low wages for foreign workers.
Many might use the term “abuses” where I say ”employs”. I respectfully disagree because the H-1B program is designed to displace Americans with cheap foreign workers. When HCL uses the system to accomplish what the H-1B is intended to do, that is not abuse of H-1B. It is the H-1B program itself that is abusive.
The H-1B statute is lobbyist-written and deliberately deceptive. Its relies on what might be called the-Lord-giveth-and-the-Lord-taketh-away system of statute drafting.
To start, the statute (8 USC § 1182(n)(1)(A)) giveth by stating that H-1B workers must be paid the higher of the prevailing wage for the occupation and location or the wage paid to similar employees. The only function of this provision is for lobbyists to be able to claim that H-1B workers must be paid the prevailing wage.
Moving down to 8 U.S.C. § 1182(n)(1)(G), the statute taketh away. When the employer submits its prevailing wage paperwork,
The Secretary of Labor shall review such an application only for completeness and obvious inaccuracies. Unless the Secretary finds that the application is incomplete or obviously inaccurate, the Secretary shall provide the certification described in section 1101(a)(15)(H)(i)(b) of this title within 7 days of the date of the filing of the application.
The employer can claim anything is the prevailing wage and know it will be approved because the Department of Labor can only check that the form is filled out correctly.
You might think that the Department of Labor reviews prevailing wage claims after they have been approved, but the H-1B program is the best legislation money can buy. The lobbyists covered that in 8 U.S.C. § 1182(n)(2)(G)(v), which prohibits such a review.
The result is that most H-1B prevailing wage claims are at the bottom one-sixth of wages. Only 18 percent are at the actual prevailing wage or above.
The H-1B program also explicitly allows replacing Americans. Moving to 8 U.S.C. § 1182(n)(1)(E)(i), the statute giveth by requiring employers to certify:
In the case of an application described in clause (ii), the employer did not displace and will not displace a United States worker (as defined in paragraph (4)) employed by the employer ...
Then it immediately taketh away again:
... within the period beginning 90 days before and ending 90 days after the date of filing of any visa petition supported by the application.
Petitions for visas for the October 1 start of the fiscal year are made in April. That’s more than the 90-day window against displacement. So the provision protects no one.
As if that weren’t enough, clause (ii) excludes all employers with less than 15 percent of their workers on H-1B visas and H-1B workers making more than $60,000 or who have a graduate degree.
Most displacement of Americans by H-1B workers occurs through third parties. Here again, the statute giveth:
(F) In the case of an application described in subparagraph (E)(ii), the employer will not place the nonimmigrant with another employer.
Clause (E)(ii) is the same as clause (ii), so the statute explicitly allows replacing Americans with H-1B workers supplied by third parties as long as the replacement makes more than $60,000 or has a graduate degree.
And there is an additional out that a third party can replace any American if:
the employer has inquired of the other employer as to whether, and has no knowledge that, within the period beginning 90 days before and ending 90 days after the date of the placement of the nonimmigrant with the other employer, the other employer has displaced or intends to displace a United States worker employed by the other employer.
Not only did Congress affirmatively and explicitly act to make replacing Americans with H-1B workers legal, but it also has gone to a lot of effort to make this practice legal.
The backflips the House has made to ram immigration provisions through in the Build Back Better bill provide further evidence that displacing Americans is Congress’s explicit intent in the immigration system. The bill contains immigration provisions to benefit H-1B workers who have replaced American citizens. There are provisions to benefit illegal aliens.
But there is not a single immigration provision to protect Americans.