Let's say that at any one time there are about three million legal nonimmigrant workers in the United States.
This would include all the H-1B, H-2A, and H-2B categories, as well as F-1 alumni and students working under the Optional Practical Training program, as well as those on various J, L, P, and Q visas.
Let's compare that to the total number of people in the United States working or seeking work; the most recent Bureau of Labor Statistics total labor force estimate is 161 million.
So, on average a U.S. employer has 1.9 percent of its work force as nonimmigrant workers.
If we quintupled that percentage, and added a little more, we would get a benchmark of 10 percent.
Then let's use that benchmark for potential U.S. government contractors, telling them that they cannot get or renew government contracts if their direct, and indirect, hires on any contract include more than 10 percent of the work force with temporary visas as defined above.
The government could argue, as the Trump administration is doing currently, that just as the new tariffs on Mexican and Canadian steel and aluminum are being imposed for national security reasons so is the upper limit of temporary alien workers of 10 percent on any federal contract. No federal contract activity, as a matter of policy, should have a work force that is more than 10 percent alien.
Many contractors would object to the new rule, saying that they cannot get enough American workers to complete their contracts with the American government.
"You are saying," the government would then tell the complaining contractors, "that your working conditions and wages are so substandard that you need more than five times the share of temporary foreign workers as American employers have on average? How can that be?"
We would thus be changing the dialogue on the use of foreign workers for federal contractors; the benchmark would not be the current practices or wants of the employers, as it is now, it would be the broad American employment pattern. The employer wanting to expand his or her foreign workforce beyond 10 percent would be told, in effect, "your request runs counter to the whole nation's employment practices."
There would be two policy objectives of the new rules, to be laid down in keeping with the president's "Hire American" instructions:
- It would open up at least scores of thousands of jobs for U.S. citizens and green card holders on projects funded by U.S. taxpayers;
- It would break up specific workplace ghettos in which virtually all of the workers are from one place. The high concentration of Mexican (H-2B) workers in some contracts with the Forest Service is one example, as is an overuse of Indian (H-1B) workers in some high tech contracts.
The problem is not the scattering of foreign workers from all over the world in some government contracts, it is the concentration, often by ethnicity, of workers from a given nation, in specific contracts. These patterns push down wages and working conditions as the docile foreign workers displace the free U.S. workers, and as profits soar for the contractors.
Since the government as customer has powers that the government as regulator does not have, and since these powers can be exercised by the executive without any reference to Congress, why doesn't this administration follow the useful precedent of the Kennedy administration?
Lacking, at the moment, the ability to get Congress to pass an Equal Opportunity Act for employers generally, in March 1961, JFK set up the President's Committee on Equal Employment Opportunity to deal with discrimination within government contracts. I remember that some of my office neighbors at the U.S. Labor Department at the time worked for the Committee, with some of them later switching to the U.S. Equal Employment Opportunity Commission after it was created.
So, President Trump, let's take a leaf from the Kennedy book and expand your "Hire American" concept to employers working on U.S. government contracts, where the United States is not just the regulator, it is the customer as well.
The modest message would be: "Yes, contractors, you can have temporary foreign workers, but you must hold it down to five times the average usage of American employers generally."