Much Activity on the Foreign Worker Front: Facebook, H-1B, and CNMI Casinos

By David North on December 7, 2020

There has been a burst of activity on the foreign worker front recently: The Justice Department has singled out Facebook, a big H-1B user, on the grounds of discrimination against citizens in its employment practices; a second judge has blocked the Labor Department's proposed reforms of the H-1B program; and two foreign-worker-using casinos in the far Pacific have produced negative news, again.

Facebook. Although it's a little late in the game, the Justice Department has charged Facebook with discriminating against U.S. citizens in its hiring practices, because of its extensive use of H-1B workers, according to a partially pay-wall-blocked report by Law360. (My colleague Andrew Arthur examined the case in detail earlier today..)

My sense is that the charges against Facebook are sound and overdue. My question is: Why Facebook instead of other, larger users (and abusers) of the program, or why isn't Facebook one of many employers being charged?

One answer is that it is easier to fight a single company than all of Silicon Valley. But the question remains. If you check with the myvisajobs website, you will find that, for this year, Facebook was in 16th place among the large employers, having filed 3,212 LCAs (labor conditions applications), with Cognizant in first place with more than eight times as many applications (28,526). Given the lottery that currently distributes these visas, an employer gets about one-third as many LCAs as it seeks, so Facebook is taking on about 1,000 new H-1B workers a year, rather than hiring citizens or green-card holders for these jobs.

So if Facebook is not first in numbers, is it, perhaps, last in the salaries offered? Well, no. Myvisajobs reports that the average salary was an eye-popping $166,068 a year, leading all the others among the top-20 H-1B employers. (Facebook probably also hired some-to-many lower-paid H-1Bs indirectly through the rent-a-programmer firms like Cognizant.)

Or did Facebook anger the White House by putting some disclaimers on the president's statements about the election?

H-1B. U.S. federal district court Judge Stanley Chesler, in New Jersey, according to Law360, froze the U.S. Department of Labor's new regulations substantially lifting the wages of H-1B workers on the grounds that the suing employers "will likely be successful in their argument that the rule, which took effect in October, was procedurally deficient because the U.S. Department of Labor failed to comply with the Administrative Procedure Act's notice and comment requirements."

A California federal judge shot down the rule earlier last week for similar reasons.

Congress. As my colleague Jessica Vaughan has reported, the U.S. Senate last week passed, unfortunately by unanimous consent, a bill that would abolish country-of-origin limits on employment-based visas, thus putting tens of thousands of H-1B workers from India and China at the head of the queue of H-1Bs converting to green card holders. While this would not increase the number of immigrants, it would please the governments of India and China, and would slow the conversion of H-1Bs of other nationalities.

The bill, pushed by Sen. Mike Lee (R-Utah), will not go directly to the White House, because while it is similar to a bill passed by the House earlier, it is not identical to it. Lee's bill contains what many regard as a poison pill, a provision barring large numbers of Chinese from immigrating: those who are now, or have been, members of the Chinese Communist Party. That provision may not be acceptable to the House and may kill the bill for this session, just as the hurry-up procedure in the Department of Labor H-1B regulations may doom those reforms.

The Casinos. We previously reported on the multitudinous ways that the Department of Homeland Security has aided the casino industry in the Commonwealth of the Northern Mariana Islands (CNMI), in the far western Pacific. It now turns out that the foreign workers that the Imperial Pacific Casino flew in (with DHS approval) from great distances, and then stopped paying, include people from Italy as well as Turkey; these workers are now picketing the closed casino. This casino is on CNMI's main island of Saipan.

An earlier failed casino, another user of foreign workers, on a different and smaller island, Tinian, made it into the pages of the Wall Street Journal, which reported that the closed casino had worked out a settlement with the feds for multiple violations of the money-laundering laws.

It agreed to pay $3.04 million. This brings what this casino owes to something like $78 million, and since these are liens on the existing and empty casino building, it answers my earlier question: Why not refurbish that structure if you want to start a new casino on Tinian? One would be crazy to buy that building for even one dollar, given the liens on it.