House Holds Different Kind of H-1B Hearing – No Employers Present!

By David North on March 31, 2011

The House of Representatives Immigration Subcommittee held a different kind of H-1B hearing this morning – no employers were speaking and no one asked to increase the various ceilings on new admissions.

This despite the fact that the two numerical ceilings for new admissions this fiscal year (65,000 and 20,000) were filled months ago, both well before the September 30 deadline.

The H-1B program brings (mostly) high-tech workers to the United States as (more or less) temporary workers to the delight of their employers and to the consternation of many others, including large numbers of unemployed American high-tech workers. The program also allows employers, as was pointed out at the hearing, to shoulder aside older (i.e., 35-plus) workers in favor of younger, more recently trained ones.

For a list of the witnesses and access to the statements and testimony click here.

Over the years the overwhelming percentage of the words spoken at such events, on and off the Hill, have come from industry advocates saying that the American economy, particularly the computer-driven aspects of it, must have immediate, convenient, and unfettered access to the world's "best and brightest" and that the best way to do this would be to ease any numerical limits on the new admissions of H-1B workers.

There was only a bit of that this morning. Bo Cooper, now an immigration lawyer and the last General Counsel of the old Immigration and Naturalization Service, said in his statement, ". . . the bottom line is that the H-1B program is an indispensable part of the high-skilled immigration ecosystem. Without a robust, fully-functioning H-1B program, that ecosystem – and its role in our ability to out-innovate the rest of the world . . . will collapse."

Rep. Zoe Lofgren (D CA), who represents Silicon Valley and is the ranking Democrat on the subcommittee, expressed similar sentiments.

Oddly enough, with the partial exception of Cooper and Lofgren, there were no other defenders of the H-1B status quo, no witness from industry, and not even a mention of lifting the 65,000 and 20,000 caps. (The 65,000 ceiling is for industrial employers, and the 20,000 one is for high-tech workers with advanced U.S. degrees; there is no ceiling on H-1Bs working in higher education.) It was not as if the other voices were in agreement with each other – except in calling for change – because there certainly was no alternative that all agreed upon.

The other witness were Donald Neufeld, an Associate Director of USCIS who avoided policy matters and described how the program worked, former Rep. Bruce Morrison (once D-CT), who called for no more H-1Bs but lots more green cards for high-tech alien workers with advanced U.S. degrees, and Ron Hira, Associate Professor of Public Policy at Rochester Institute of Technology and author of a recent Economic Policy Institute study entitled "The H-1B and L-1 Visa Programs: Out of Control".

Hira said that the basic design of the program was flawed, and administrative and enforcement actions would not prevent the program from lowering wages for high-tech workers, and allowing the replacement of U.S. workers with foreign workers. He made the point a couple of times that most H-1Bs were not the best and the brightest, and he said that recently a major employer had imported 100 computer programmers and paid them $12.50 an hour – "they cannot be the best and the brightest."

Someone, similarly, noted that some H-1B slots are filed by fashion models and pastry cooks.

Morrison, who was once chair of the subcommittee, argued that if the formerly foreign workers had green cards then those workers could move around the labor market freely, and this would take care of the problem of the foreign workers being exploited because of the immigration status.

Morrison appeared on behalf of the Institute of Electrical and Electronics Engineers, a professional group. Morrison, over the years, has usually been an advocate of more migration.

Perhaps the liveliest exchanges of the morning was between John Conyers (D-MI) and the former chair of the immigration subcommittee; Conyers had served in the House with Morrison in earlier years.

"Morrison," Conyers said, "You used to be for the workers; now you are for the free market; what happened to you?" The audience chuckled.

Morrison replied, softly, that maybe he had changed his mind or maybe he had been misquoted earlier.

Conyers was equally blunt with Cooper over whether or not H-1B workers could effectively complain about ill-treatment. "The day after they complain they will be on a boat headed back to where they came from," Conyers said, using a slightly dated transportation metaphor. Cooper had said that the Labor Department protected such complainers.

"Please, Cooper, give me a break." Conyers said.

When I first met Cooper 15 or 20 years ago, he was a young INS attorney with shoulder-length hair. He wears his hair now in a manner more appropriate for a corporate attorney.

A new assertive voice on the subcommittee, and in the Congress, is Rep. Trey Gowdy (R-SC), who arrived in the House after twice knocking off sitting Republican officeholders in primaries. Being junior on the panel, he did not get recognized until just before the hearing ended, but he made a strong impression. He was concerned with fraud in the program, and asked the witnesses if the government had sufficient legal and staff resources to investigate H-1B fraud.

"Does the Department of Labor have subpoena power?" he asked. He was assured that Wage-Hour investigators (who look into H-1B fraud among other things) have full powers to examine employers' wage records and have ready access to workers, suggesting that subpoena powers were not needed.

He asked if there were serious consequences flowing out of H-1B fraud. "I am a former prosecutor and I regard jail as serious," he said. The witnesses talked of heavy fines and of the possibility of being thrown out of the H-1B program for several years, a process called debarment that is the subject of a new CIS Memorandum. No one answered the implied question about H-1B fraud leading to a penal sentence – I doubt that this has happened, but am not sure.

Another innovation at the hearing was the statement from Rep. Steve King (R-IA), the second-ranking Republican on the subcommittee. He said he was worried about our having too much legal immigration of all kinds, particularly at a time of high unemployment. He also said, as he has before at earlier hearings, that what we need is a tighter labor market, and that will effectively raise wages.

In terms of themes along party lines, the Republicans often talked about fraud and displacement of American workers, while the Democrats, after discussing displacement, often worried about the exploitation of the H-1B workers.

Subcommittee chairman Rep. Elton Gallegly (R-CA), who presided, asked some pertinent questions but did not dominate the hearing in the way that some chairs do. Though there were disagreements among the committee members as to policy, there was little tension in the room; for example, Gallegly and his fellow Californian, ranking Democrat Lofgren, seemed to get along well.

The hearing played before a standing-room-only group of spectators, and virtually every committee member, at one time or another, was present, and asking questions.