Panel Transcript: No Americans Need Apply

EEOC lawsuits reveal how employers are eager to replace low-skill native workers with immigrants

By Mark Krikorian, Jason Richwine, Peter Kirsanow, and Kevin Lynn on October 25, 2019


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No Americans Need Apply: EEOC lawsuits reveal how employers are eager to replace low-skill native workers with immigrants

Event Summary

The Center for Immigration Studies hosted a panel discussion on focusing on employer discrimination against native-born workers. The conversation centered on the release of a report examining real-world case studies in which the Equal Employment Opportunity Commission (EEOC) has sued employers for systematically favoring low-skill immigrants over native workers.


Mark Krikorian
Executive Director
Center for Immigration Studies

Jason Richwine
Independent Policy Analyst

Peter Kirsanow
U.S. Commission on Civil Rights

Kevin Lynn
Executive Director
Progressives for Immigration Reform

MARK KRIKORIAN: Good morning. My name is Mark Krikorian. I am executive director of the Center for Immigration Studies.

And we are releasing a paper today at this panel discussing it that’s a little different from the stuff we’ve done before. A lot of the things – the research we’ve released has been demographic or economic, or even using administrative data, but it’s still crunching numbers. This is more a qualitative report instead of a quantitative reporting we’re releasing today. And what it is, as the author will explain, is a look at actual government proceedings related to discrimination by employers against American workers. So it’s preference by employers for American workers.

And this is an important issue that doesn’t really get discussed very much at all. In fact, during the debates over the 1986 bill, which was the first bill ever to prohibit the employment of illegal immigrants, much of the debate was centered on whether immigrant workers in general would suffer discrimination because of this ban on hiring illegal immigrants. And this – the paper we’re releasing today isn’t definitive, but it’s clearly suggestive that the problem is actually the other way around – is that American workers are the ones who end up being preferred by employers – I mean, immigrant workers end up being preferred by employers precisely because they’re immigrants.

So the first presenter will be the author of the paper, Jason Richwine. He’s an independent policy analyst. He’s written a lot on immigration. We’ve published some. He’s also written on things like education funding and similar topics, published recently in The Wall Street Journal, writes for National Review pretty frequently. And he’s the author of this report and is going to be presenting his findings.

The next speaker to comment – to comment on the report and more generally on the issue is Peter Kirsanow. Peter is a labor lawyer, a former member of the National Labor Relations Board, and maybe most relevant to this is in his third term as a member of the U.S. Commission on Civil Rights. In fact, I think if I got it correctly he’s the second-longest-serving member, or will be soon, of the commission. And so he has some unique insight into that specific issue.

And then to complement the discussion, which will mostly be focusing on lower-skilled American workers, Kevin Lynn, founder of an organization that advocates for American tech workers called U.S. Tech Workers, will be talking about discrimination against Americans at the higher end of the labor market. And it’s a sort of different phenomenon, but it ends up being the same result.

So we’ll start with Jason, then Peter, then Kevin. And then we’ll have them discuss among each other or take questions if there are any. Jason?


As Mark mentioned, this is qualitative research, not quantitative – a bit of a departure for me. But it’s about an important issue. It’s about Equal Employment Opportunity Commission lawsuits in which employers are accused of favoring foreign-born workers over native-born workers. But before I get into the specifics of that, I want to just sort of motivate the discussion by talking about where this fits into the broader economics literature.

So economic theory would generally state that there are mixed effects from immigration on the labor market. There are some positives and there are also some negatives. The – from the native’s perspective.

The positives, of course, would be that if you’re able to lower a wage, then you can reduce the cost of production, and therefore reduce the cost of goods and services. Another potential positive is that it could free up natives to work in higher-skilled jobs.

But of course, the negative is that among those native workers who remain in the industry, they now face greater competition from foreign labor, and they’re going to have downward pressure on their wages and their working conditions and potential for job security.

So, empirically, economists have generally confirmed the – most of the papers you read that do empirical analysis will find those sorts of mixed effects. And in terms of identifying the negatives, probably the best source is still the National Academies of Sciences. They have a whole book on the topic of the economics of immigration, and in one of those chapters they have a table. It’s a really big table where each row is an empirical analysis. There’s a column with the wage effects. If you look down that column, you see minus, minus, minus, minus, minus, minus. And of course, the minus means their wage is going down.

But the problem with the empirical studies is that there are probably 100 or more different factors that could potentially influence how someone’s paid or what their working conditions are like. How do you isolate the impact of immigration from all of those other factors? And these studies do that to varying degrees of success. Part of the problem, though, is that there’s a wide range, therefore, of defensible methods, and therefore also a wide range of results.

So although we – the general feeling is that you get these mixed effects, once in a while you will encounter an empirical paper that claims that, in fact, the theory is somehow wrong; that, in fact, there are zero negative effects of immigration on native workers. Well, how plausible is that? That’s really the purpose of this report today.

I think that when you bring in the sort of on-the-ground research, sort of reality-based research, it serves as a sanity check, so to speak, on some of the outlying results that some people cite as evidence that there are no negative impacts of immigration. So you be the judge of the plausibility of that. I’m going to read you a few example cases from the paper.

I do want to mention before I start that one thing I strived to do in the report, in my summaries of these cases, is to not go beyond the facts alleged in the lawsuit. I did not add any embellishments, no commentary and the like. So in order to maintain that standard I am going to read directly, if you don’t mind. If I try to do it from memory I probably would screw it up.

So here’s your first example. According to a 2011 EEOC lawsuit, Southern Valley Fruit and Vegetable primarily employs Mexicans for the harvest season, but would initially hire Americans as well. Shortly after each harvest began, most of the Americans would be summarily discharged. Quote, “All you Americans are fired,” end quote, one manager told a group of 80 Americans who were let go at the same time. On another day that at least 16 Americans were fired a manager stated, quote, “All of you black American people, F you all, just go to the office and pick up your check.” End quote.

Now, it’s the Atlanta office for the EEOC that was in charge of this particular lawsuit, and it added a comment that, quote, “The practices alleged in the lawsuit are relatively common in the industry.” End quote. And Georgia Legal Services was also involved here. They added, quote, “Discrimination against American workers in the H-2A guest worker program is endemic. We hope this case will bring attention to that problem.” End quote.

Now, lest you not believe that it really is endemic, I’ll give you another example from the agricultural sector: a 2014 EEOC lawsuit. J&R Baker Farms segregated workers by national origin, did not allow the American workers to start on time, sent Americans home or told them not to report for work on days when foreign-born employees worked as normal, and terminated Americans based on production standards that were not disclosed and not enforced against foreign workers. When the agricultural season began in the fall, nearly all American workers were fired within a few days.

Now, these cases are explicit about the fact that foreign-born workers are being favored over native-born workers, but oftentimes it’s more implicit. Oftentimes the cases are about how Hispanics are favored over blacks. And you have to kind of read between the lines to realize that given the industry we’re in, given the region that we’re in, the Hispanic workers are highly likely to be foreign-born, and of course the black workers are highly likely to be native-born.

Let me give you an example. When a Best Western Hotel in Virginia came under new management, the manager began systematically replacing the hotel’s black housekeepers with Hispanics. The replacement began when existing employees were told they would need to reapply for their positions after the management change. Subsequently, blacks with years of experience were denied reemployment. Hispanic workers were hired in their place. One manager expressed her preference for hiring Hispanics as housekeepers.

You’ll notice I used the word “systematic” in this – in that last case because that’s a very key word. This is not an accidental bias.

Another example of something very systematic: When a warehouse in Memphis began using a new employment agency to fill its daily work crew, the agency, quote from EEOC, “essentially replaced the African Americans with Hispanics.” End quote. Potential workers would line up outside the warehouse each day, but the agency would select Hispanics over blacks even when black workers were farther ahead in line. Sometimes managers would send potential black workers home by announcing in English that there were no more positions. After the African Americans left, the Hispanics were allowed to come into the warehouse and work. Again, systematic – neither subconscious nor subtle.

Perhaps the most egregious example of this comes from Prestige Transportation Services. It would discard or refuse to accept employment applications from non-Hispanic blacks. Quote from EEOC: “On multiple occasions when a black person applied for employment, Prestige managers Mr. Ramirez and Ms. Rodriguez would stand behind the applicant and rub their hand on their skin to display their disdain for black people.” End quote. Staff meetings were conducted in Spanish only. And one black driver who did manage to get hired would be sent home early while Hispanics continued to work.

Now, I’m not going to read every case here. There are 21 cases in the report. It would get a little boring. Although I do recommend reading it because I think the repetition actually is instructive. You see the same things happening over and over again, which is telling.

I do want to give you one more example. Most of the time the low-skill American workers who are discriminated against are black workers, but sometimes they’re whites as well. I want to give you an example of that.

At a Hampton Inn in Colorado, three non-Hispanic white housekeepers were fired by the new general manager and replaced by Hispanics. The owners, Falgun Patel and Mukund Patel, told the general manager that they prefer that maids be Hispanic because in their opinion Hispanics worked harder while American employees are lazy. The general manager allegedly told a Hispanic employee to recruit friends for the incoming vacancies because the owner preferred a Hispanic workforce. After three months, all of the Hampton Inn’s non-Hispanic housekeepers were gone.

Now, there are probably some of you sitting there saying, OK, Jason, you call this qualitative research, but isn’t that just a fancy name for a bunch of anecdotes? Well, I mean, in some – I mean, I agree, there are – there are a lot of anecdotes here. But I would say that the frequency and the consistency of these anecdotes is rather telling, I mean to the point where you really have to be out of touch with reality to argue that there are no negative effects of immigration on native workers. In fact, let me just repeat that because I think it’s a pretty important point: If you argue there are zero negative effects on native workers from immigration, then you are out of touch with reality.

Furthermore, the types of anecdotes that we do not find are just as important as the type that we do find. I mentioned that there are many cases of Hispanics being preferred to black workers, but it was very, very difficult to find the reverse – very difficult to find cases of blacks being preferred to Hispanics.

Which is not to say Hispanics don’t file EEOC lawsuits. They do, but their types of complaints they have are, again, very telling. When Hispanics file suits, they are not complaining that they are being replaced by some other group in the workforce; instead, they’re complaining about working conditions, they complain about low pay, they complain about dangerous situations on the job site, and they complain about harassment. Harassment oftentimes is ethnically based, ethnic slurs and so on directed at them. The saddest part is that when we’re talking about Hispanic women, sexual harassment is a very pervasive problem if you believe these EEOC lawsuits, particularly out in the farm fields where there’s very little to protect them. And we’re not talking about just some stray comment; we’re talking about some really objectionable stuff, unwanted touching and worse that’s going on out in the fields. I could do a whole additional report on that based on all the material EEOC provides on that specific topic.

The point is here, though, that the anecdotes conform to economic theory. This is exactly what we would expect to happen if we believe that employers are using immigration to depress wages and working conditions. Again, this severely calls into question anyone claiming that there are zero negative effects from immigration.

So I’ll leave it there, but happy to continue the conversation in the Q&A later. Thanks.

MR. KRIKORIAN: Thanks. Peter?


I’m very gratified that Jason has put together this study because it comports with what I have found over 40 years anecdotally from my own experience as a labor employment lawyer, but I never aggregated any of that data. I’m not trained to do so. I rely to a large extent on the fine work done by the Center for Immigration Studies, which is their data and their studies are indispensable to the work we do on the Civil Rights Commission and in fact indispensable to the discourse on – or the debate on immigration nationwide. Had it not been for the groundwork done by the Center for Immigration Studies, our immigration policy would be radically different right now. I recall that in the 2013 crucial debate related to immigration reform, much of the information provided by the Center for Immigration Studies formed the basis for the pushback against the Gang of Four bill, the Gang of Eight bill, and it was essential to making sure that we had an immigration policy that favored Americans.

Now, over the 40 years of my practice of labor and employment law I had seen a number of cases similar to what Jason has seen, but of course never followed through on those things in terms of trying to discern whether or not there was a broad-based phenomenon of discrimination against blacks. But it concerned me enough that I had asked the Civil Rights Commission to conduct a hearing on this. And there were at least three hearings that we conducted, one of which was designed specifically to determine the effect of illegal immigration on black workers.

We had a panel of experts in this area, I mean some of the finest in the field, who testified, and they spanned the ideological spectrum from far left to far right. Regardless of whether or not they disagreed on discrete policy issues, each and every one of them agreed that illegal immigration has decidedly negative impact on black wage levels and employment levels.

And I see Steven (sp) here. He’s heard me say this a couple of times. The information was really kind of overwhelming, frankly. What we found – and this is, you know, something that comports with Economics 101, which I think I spent four years in. (Laughter.) But if you’ve got a significant influx of low-wage labor, what does it do? It depresses wage levels, correct? And what we found also was, regardless of the wage levels, illegal immigrants displaced black workers in areas that had traditionally been populated by black workers – service industry, agriculture, construction, hospitality. It was a fairly pronounced displacement, also.

And the reason for that is because what you find is black workers, particularly black males, are disproportionately concentrated in the low-wage labor market and are disproportionately likely to have no more than a high school diploma. And the same is true for the cohort of illegal aliens, who are disproportionately concentrated in the low-skill labor market, disproportionately likely to have no more than a high school diploma if any type of diploma. And they compete with one another in areas such as construction, hospitality, service, and agriculture. And we also found, at least at that time – this was about seven or eight years ago – that much of the competition, it was nationwide, but you’d see a lot of it in large metropolitan areas like Los Angeles, Chicago, New York, Atlanta, but also in Southeastern states in certain industries – poultry industry, construction industry, so on and so forth.

This was not a small displacement, either. We had one witness who testified that after he had run the numbers he found that 40 percent of the decline in labor participation rates among black workers over three decades was attributable to competition from illegal immigration – 40 percent. You do the math on that in terms of labor participation rate, you know, you’ve got to do some juggling of the numbers, but it comes to nearly 1 million fewer jobs for black Americans as a result of the competition from illegal immigrants.

And it’s not just the employment levels, it’s the wage levels also. And I can only give you a few examples, but we had evidence from the Fed in Atlanta, which did a study on this, to show that illegal immigrants depressed wages – the competition from illegal immigrants depressed wages by $960 on average, but in certain sectors such as the hospitality industry the depression of wage levels was $1,560. When you consider what the wage levels are for – on an annualized basis, that’s a significant amount of money. And because black workers were disproportionately concentrated in those areas, they were disproportionately affected.

I can go on with this type of anecdotal data, which Jason’s done a better job than we have of putting together and really highlighting the adverse effects of this, but there’s a downstream effect also. And the downstream effect, which is kind of a domino effect, is, well, when you’ve got a lower employment rate or, you know, lower wages among a certain cohort of the population, that population is also likely to suffer certain adverse effects such as family formation is at a lower rate, there is higher incarceration rates. And we see this kind of phenomenon displayed in the black community – not all black communities, but enough of them to present a concern. And it was enough of a concern – by the way, we had a couple of other hearings related to this matter, not discretely – not related just to the competition from illegal immigration, but it swerved into that phenomenon.

This type of adverse impact was something that concerned us enough – at least it concerned me enough – that we on a number of occasions reached out to political leadership, specifically the Congressional Black Caucus because, you know, they call themselves the Congressional Black Caucus. I didn’t call them that. And I thought that they would be particularly concerned about this particular issue because the adverse impact is egregious.

So I can tell you that we made a number of attempts to highlight this issue to the Congressional Black Caucus. We sent several letters to the head – then head of the Congressional Black Caucus. All we heard were crickets. In fact, on one occasion the head of the Congressional Black Caucus falsely claimed that they had never heard from us until we produced the letters – the multiple letters and contacts that we had with them, and then they had – you know, there was radio silence from them.

So there is – my concern is that on a – on a political level there doesn’t seem to be a whole lot of energy behind this particular issue and trying to address the impact of this particular issue. I think that’s an abomination, and I’ll leave it at that.

MR. KRIKORIAN: Thank you, Peter.

Kevin will talk about sort of the complementary issue of this same phenomenon at the higher skill levels.

KEVIN LYNN: Great, and I’ll be brief. Mark, thank you for having me here today. We’re a big fan of the Center for Immigration Studies. We rely on you – the Center – the Center for being kind of a thought leader for many of the issues and topics we organize around.

In 2008 I was one of the founding board members of Progressives for Immigration Reform, and we created it to have a dialogue with those of our progressive brothers and sisters left – to the left of the political spectrum on the consequences of unbridled immigration. And at that time, much like what Jason had pointed out earlier, we were looking at our most vulnerable workers and looking at that lower end of the pay scale, the – of our productive classes.

Three years ago it became obvious we needed to look at what was going on at the higher end, in areas of STEM – science, technology, engineering, and mathematics – because Americans were being displaced in the workplace and there was a preference for hiring foreigners. And it was all legal, and it was done mostly through our employment visa system – H-1Bs, OPTs, L-1s, F-1s, J-1s. And we saw a definite – not just a preference, but a bias for preferring foreigners over Americans. So I’m really pleased today to be here to talk about this.

At a higher level let’s look at what’s going on – what has been going on. In 1980, six out of seven software developers in Hudson County, New Jersey, were born in the United States. Fast forward to 2017; the ratio is reversed, where only one out of seven software developers were born in the United States. Moving to the West Coast, Santa Clara County, California – four out of five software developers in 1980 were born in the United States. Today that ratio has dropped to just one in four.

Moreover, this has come at a high cost to EEOC. The gains made by women and minorities in STEM fields over the past three decades have really been reversed. For example, today on average 12 percent of women earn degrees in computer science. In 1984 it was 37 percent. So you have to ask yourself what’s going on. Well, when the opportunities become scant and the workplaces become hostile to women, they typically choose other career alternatives.

So I asked the question, when you look at what has happened to the number of Americans participating in STEM versus foreigners, is it that we Americans just aren’t technically capable, the country that built companies like Adobe, Microsoft, Apple, put a man on the Moon? Is it that our educational institutions are inferior to those in other countries? I would – I would think not. And I’ll talk about how I think it’s really workplace discrimination that’s making it more difficult for Americans to advance in STEM – or enter and advance in STEM fields.

And the way this is done – I’ll give you a prime example, is in 2015 Disney announced that it was laying off 850 workers. About 200 of those workers, IT workers, were tasked to train their replacements. Their IT functions were being outsourced to Tata Consultancy Services, what I refer to as an Indian consulting company, an ICC. Now, that company was staffed primarily, if not entirely, by H-1B visa holders, of which the vast majority – actually, 98 percent of the people who work in the – in the four largest ICCs – Tata Consultancy Services, Infosys, HCL, Cognizant, just to name a few – 98 percent are from South – either from Southeast Asia or of Southeast Asian descent. So in that example of Disney, they outsourced to a company, which is legal, and the employees had to train their H-1B visa replacements. Eventually, a lot of these jobs begin to move offshore.

Another example, speaking anecdotally, in 2017 – two years after Disney – PG&E, a utility in California, outsourced its two IT groups, a database group and the middleware group. And they outsourced to Tata Consultancy Services. So everyone who had been a W-2 employee at PG&E came back the next day as a consultant employed by this ICC. Now, this year, in 2019, all those Americans working for Tata Consultancy Services were fired and those jobs offshored. And interestingly enough, the only people that weren’t fired working at PG&E were those who had H-1B – were on H-1B visas when it all started two years ago.

So this is rampant. I talked about Disney, but when Toys “R” Us was in existence, Abbott Labs, Northeast Utilities, SoCal Edison, hundreds of companies, many of them Fortune 500 companies, have taken to outsource with a real passion. And right now these contracting companies, these ICCs, are really in the driver’s seat when it comes to hiring workers in America.

And what we’ve seen is this almost systemic, institutional bias against hiring Americans, for several reasons. It’s no – when you look at where the labor is coming from, it’s mostly coming from India. And I’m not singling out India as some – the big culprit because I don’t like Indians, but 74 percent of all of our H-1B visas go to Indian nationals. The largest outsourcing companies in America – there are others in addition to the Indian ones like Ernst & Young, Capgemini – are Indian-based.

And it’s a large workforce. That’s evidenced by roughly 72 billion (dollars) in remittances go back to India each year. Mexico used to be the largest country sending remittances out of the United States. It’s now India. That’s an indicator of how big this issue is.

Now, why – I would say that there is a preference for hiring Indians over Americans in these consulting firms because, one, they will work longer hours. It’s a quiescent workforce, largely because they’re here on H-1B visas. And a lot of what goes into this is they are given the hope that their company will sponsor them for an – a green card, and then they’ll eventually get citizenship here in the U.S. Unfortunately for the American worker, that means that they’re competing with someone who is willing to work for less, work for increasingly lower benefits and other benefits that go along with their salaries, and it just ultimately makes things a lot more difficult.

And this wasn’t supposed to be. You might recall in 1992, with NAFTA, GATT, and the WTO, as we offshored all of our manufacturing base, the hope would be that Americans would learn to code. Well – (laughs) – it hasn’t worked out that well because back then we were offshoring our manufacturing and now we’re literally asset-stripping the United States, and we’re taking the intellectual property between people’s ears and offshoring that.

And I’ll give you an example of how this has played out for Americans. I had mentioned SoCal Edison as one of these companies earlier that had outsourced its IT operations. Well, earlier this year there was a court case, Buchanan versus Tata Consultancy Services, and it was an EEOC trial – court case that dealt with country-of-origin discrimination. And a woman, Frances Greitl, who had worked for SoCal Edison as a tech worker, was employed – was hired by Tata Consultancy Services to work on – continue working on the SoCal Edison account. And this is an example of what goes on in these consulting firms.

As I had mentioned, these are hostile environments toward women. So in the testimony during the trial, the attorney asked the plaintiff, did you attend meetings as part of the Grid Ops project? Yes. And were you asked to take notes? Yes. Did an issue ever arise regarding your participation during these meetings? Yes. One time after a meeting I had asked some questions to clarify because I know where Southern California Edison was going, wanting the application to do something a little bit differently than what it really did. Just to clarify. So after the meeting, Vishal asked me not to speak up and ask questions during meetings.

So there are other instances of how this is done. I explained how it’s done in outsourcing, but it’s also done in hiring. There is a woman in Indiana. Her name is Claire. And she got a degree in engineering, a master’s degree in computer science and technology. She hasn’t worked in three years. She was laid off from her firm three years ago. She applies to large companies in her immediate area. And she sees the positions they’re advertising for and she is qualified for all of them, yet at the same time the company is applying for H-1B visas for this company – for these positions. So she’s not getting hired. She’s put out over 3,000 applications in the last three years. And this is typical of many workers that have been displaced in the STEM fields and simply can’t get back in the door.

And in closing, again, I’ll go back to the question I asked: Is it our educational institutions? Is it our workers? And I would like to think that it’s really workplace discrimination, a bias for hiring foreigners over America – over Americans.

And as an example, there was a recent ad for a SQL developer who had to be a U.S. citizen with a DOT clearance. And this position received 268 applications online, so it tells me Americans are out there in the STEM fields wanting and willing to work. It’s just that it’s been very difficult.

And I’ll close with that.

MR. KRIKORIAN: Thank you, Kevin.

Since I’m paying for the microphone, I’m going to ask the first question. This is back to the – really mainly on the low-skilled side, so I guess it would be more for Jason and for Peter. It may well be true that some substantial share of Americans at the lower end of the labor market who aren’t already employed may be kind of hard to employ. In other words, they may have substance abuse problems. They may be ex-cons. They may be all kinds of things like that. And so some employers may figure, well, it’s just better not to deal with that and just hire immigrants instead. And you know, as Kevin pointed out, they’re probably more deferential and obedient in a lot of ways because Americans are kind of obstreperous. So my point is, what’s the – what’s the answer to employer responses, which often may just be – in fact, you had said that, Jason, that, well, you know, they’re just better workers and Americans are lazy?

MR. RICHWINE: Well, I think that there is a lot of truth to the stereotypes, unfortunately. I mean, we know that partially because of the ubiquity of the – what’s expressed by employers particularly in anonymous interviews. And as both Peter and Mark mentioned, I mean, statistically we know that low-skilled natives do suffer disproportionately from drug addiction problems, criminal background, welfare dependency. I would certainly not lay all those problems at the feet of immigration. I think it’s all of a piece in some way.

But the point is this. If we’re going to address that problem, we have to stop using immigration as a crutch. Essentially, what’s going on is nobody really has to care that these problems exist among low-skilled natives because we have immigrants to do the work for us. Can you imagine how the conversation would change if the flow of foreign labor were cut off tomorrow?

Suddenly, employers would have to appeal more directly to natives. They would have to advertise. They would have to raise wages. They would have to look at the working conditions, and I hope it would start a conversation in which the workers themselves also are willing to meet the employers halfway in understanding that you have to do the work that’s available to you. You have to show up on time.

I think that the – as I said, the whole conversation changes once you cut off that flow and sort of give everyone the economic incentive to figure out these problems, reintegrate low-skilled natives, not even just into the labor force but into civil society in general.


MR. KIRSANOW: Yeah. You know, I don’t know of any studies that actually show that American workers – low-skilled workers – are poorer workers than illegal immigrants are, for example. That may be the case anecdotally. You know, you hear about the hardworking illegal immigrant. And you know, probably we’ve all encountered – and as a labor employment lawyer I encountered this – you encounter the American worker who is maybe not as hardworking. But the fact of the matter is that these types of maladies with respect to substance abuse, engagement in criminal activity, they’re ubiquitous in the low-skilled labor market regardless of whether or not they are lawful workers or illegal immigrant workers.

We had at least one witness – I think it was Professor Vernon Briggs of Cornell’s Industrial Labor Relations College – that said the reason why the employers prefer illegal immigrants over black American workers isn’t so much that black Americans – you kept hearing during the course of the immigration reform debate that immigrants do the jobs that Americans won’t do, and that’s not what the data show.

What we do see is that some employers can find a greater receptiveness for the type of wages that they’re offering and also the type of working conditions that they’re offering, which are below that which Americans are accustomed to and are willing to work at. Americans will do any kind of work, provided that they are paid at an American competitive level, whereas illegal immigrants will do it because it’s much better than the country – the level of wages and working conditions of the country from which they’re coming.

But in addition to that, employers may prefer them because, as we’ve found and I think Professor Briggs testified to this, that, let’s face it, employers understand that illegal immigrants are far less likely to complain to the EEOC, to OSHA, or the Wage and Hour Division of Department of Labor.

So you can have substandard working conditions and the probability that you’re going to get a visit from your friendly neighborhood OSHA inspector is less than if you have Americans working there who understand what their rights are. Same with the EEOC, as Jason has just indicated. Americans know they can file a(n) EEOC charge. Illegal immigrants will not file an EEOC charge for obvious reasons.

And Kevin indicated they’re a more quiescent workforce. Well, you don’t want to be deported. You don’t want ICE to show up. So you probably keep your head down, whereas Americans are unlikely to do that. That may be the dynamic but it’s not good for American workers.

MR. KRIKORIAN: Peter, are the proceedings from the Civil Rights Commission hearings online somewhere at the –

MR. KIRSANOW: Yes, they are. You can go to and you can go back and see what those hearings are like. As I said, all of the witnesses, regardless of where they stood on the political spectrum, agreed that competition from illegal immigration hurts both from an employment level standpoint and a wage standpoint Americans but, particularly, black Americans.

MR. KRIKORIAN: Any questions?

Yeah, Peggy. Hold on. Wait for the mic.

Q: Hi. I’m Peggy Orchowski. I’m a congressional correspondent for the Hispanic Outlook magazine, and we focus mainly on higher ed so I’m very interested in the impact of foreign students.

And we know that there’s no limit to foreign student numbers – visas that are given out, both Js and Fs. We know that the OPT – the optional practical training – has been extended now to almost three years and a lot of those foreign students are hoping to get H-1B temporary visas or green cards. Do you know, has that increased? Have the number of H-1Bs – are the sources former foreign students? And what is the chain there?

MR. LYNN: Right. The H-1Bs, we’re looking at about 85(,000) – anywhere from 85(,000) to about 120,000 H-1B visas that are given out each year. What we found is OPT is beginning to eclipse that – the number of OPT visas being issued – and the reason being is they’re looking a little more closely at the H-1B visa applications. So we have that – that’s what’s going on there.

As you mentioned, J-1s, F-1s. J-1s, of course, are favored by universities and what we see, again, is this preference for hiring foreigners over American. For instance, in the post-doc area, Nature magazine did a really good article on this two years ago where one Chinese post-doc student went into the HR person at the university and said, look, I’m working 80 hours a week in the lab and I’ve been asked to take a 20 percent cut in pay. Is that normal? (Laughs.) And the truth is, unfortunately, it is and with OPT, for instance, I don’t know if a lot of people in the audience are aware but there is no – the employer is not required to pay SSI so that’s a 15 percent haircut. They’re not required to pay SSI. So –

MR. KRIKORIAN: Well, payroll taxes in general –

MR. LYNN: Payroll taxes in general.

MR. KRIKORIAN: – for Medicare and for Social Security, et cetera. Right.

MR. LYNN: Correct. And that’s about a 15 percent premium that is added to hiring someone on the OPT program and, again, these people compete directly with our new graduates in the workplace. And, again, look at it just relatively speaking. A student today might exit university with anywhere from 35 (thousand dollars) to $85,000 in debt. That’s a lot of money, and if they’re being handicapped – they’re having their legs broken as they leave the gate into the workplace, that cannot be good.

Have I answered your question?

MR. KRIKORIAN: Any other questions? Yeah. Hold on. Wait for the mic.

Q: Yeah. How would you respond – I have knowledge in this area but I was interested in you – about the low-wage labor market to the argument, look, well, unemployment is low? And about that unemployment statistic, what would you say to it, that unemployment even for African Americans or even less-educated African Americans looks better now than it has in the recent past? Obviously, it was once better but – or perhaps once better. But what would you say to that, that the unemployment rate, after all, looks pretty good?

MR. KRIKORIAN: And just before you answer, the president himself has made this argument for actually increasing immigration –

Q: He has.

MR. KRIKORIAN: – precisely because the unemployment rate is low.

Q: Unemployment rate. What doesn’t it capture? You know –

MR. RICHWINE: So the unemployment rate, of course, refers only to people who are looking for work, and the broader measure of people who are in the labor force would be the labor force participation rate. So unemployment rate is quite low right now, but the labor force participation rate, particularly among prime-age men, which is the one I like to look at the most because they have the least excuse for not working or looking for work, is still quite low by historical standards.

I mean, it just has gone gradually down. It’s affected slightly by recessions and economic booms but not so much. And so, you know, people have referred to the current unemployment rate as being, you know, among the lowest since 1969. But if you look at labor force participation rate, it’s far, far lower.

In ’69, virtually every prime-aged man had a job or was in Vietnam. These days, it’s, what, 12 percent or so – 10 (percent) to 12 percent, at least in the low-skill who are not even looking for work. As I said, they don’t have much excuse to not be working.

I would also point out, though, that when you have a low unemployment rate this is exactly the time that marginal workers could potentially benefit. This is the time when the ex-felon might get a second look because of the low unemployment rate, or the person with a disability who can mostly do the job and requires some accommodation that’s somewhat costly.

That’s the time when these people can really benefit from a strong economy, and I fear that we’re completely short-circuiting that process if we keep bringing in guest workers, not enforcing the law against illegal immigration, and so on.

MR. KRIKORIAN: I actually kind of had a question for Peter. You talked about how the Congressional Black Caucus really wasn’t all that interested in the kind of things you were finding. What do you think is behind that? In other words, why?

MR. KIRSANOW: Yeah. I can’t speak for them. I think, though, that they have an allegiance to whatever the reigning orthodoxy is in the Democratic Party and the reigning orthodoxy was, at the time, broadening immigration, including illegal immigration, and I think there was a political imperative attached to that. I mean, you know, no one’s ever really done any studies or anything like this but I think it’s pretty plain that, you know, you hear almost every day from various cohorts that one of the aims of – electoral aims of the Democratic Party, or at least among the progressives, is to increase the percentage or the number of people likely to vote for Democrats and they hope that – you know, blacks used to be the most reliable and still are the most reliable constituency among the Democratic Party and they were hoping, and there has actually been some commentary about this and I think somebody wrote a book about it, that the aim was to change the demographics of the country to be more favorable to a Democratic electorate. So I think that may be a component of it.

But beyond that, I’m baffled. Again, they call themselves the Congressional Black Caucus and I would think they’d be concerned about issues that face the black community and this is a significant issue that faces the black community. And I think Jason’s right with respect to the labor force participation rate. The labor force participation rate still is not where it should be, but particularly among those individuals who have no more than a high school diploma we’re talking about labor force participation rates that are abysmal.

Back in 1983, 1984, or 1985, when the economy was mediocre at best, somewhat stagnant, blacks without a high school diploma had – you know, there’s a U-6 rate. There’s all kinds of unemployment rates in addition to labor force participation rate. But we were at 24.6 percent unemployment. That’s extraordinary. You know, now it’s far lower than that, of course, and the economy is booming.

But to answer the question of, well, you know, the economy is doing well – labor force participation rate is better than it had been – unemployment rate is low, well, everything is cyclical, and at some point that’s going to change for a variety of factors and those who are going to be harmed by an influx of low-skilled low-wage labor are going to be Americans in that same category.

MR. KRIKORIAN: One interesting point I thought was that – I had mentioned the 1986 law and so much of the discussion was about how immigrants were going to be discriminated against because they were immigrants and not get jobs, which, obviously, we’re seeing the exact opposite. But because of that, in the Department of Justice there was an office – let me get the name right because it’s a mouthful – Office of Special Counsel for Immigration-Related Unfair Employment Practices.

But what that office has always done is go after employers that receive a fishy-looking green card from a new hire and they say, you know, you got anything else? This doesn’t really look good. And then the Justice Department comes down on them like a ton of bricks. Would part of the solution potentially be to expand the remit of the Office of Special Counsel to look at discrimination – immigration-related unfair employment practices but discrimination against American workers? Has there – I mean, has there been any talk of anything like the – in other words, institutionalizing this issue rather than having Jason do word searches and find that in EEOC in a – but my point is make it systematic.

MR. LYNN: Right, and it’s interesting. You look at the high end, for instance. Let’s look at doctors, for instance. Every year, roughly, 1,000 graduates of U.S. medical schools – and I’m not talking Caribbean schools, I’m talking U.S. medical schools – do not get residencies and, as you know, if you don’t get a residency as a doctor you don’t get to practice medicine.

At the same time, 3,700 foreign-trained physicians do get residencies at U.S. teaching hospitals. And I was speaking to the head of a teaching hospital and I said, how is this – why can’t – I can’t believe that their – the level of education someone might receive in Bangalore versus the U.S. there isn’t a differential, because he had told me it all comes down to Board scores.

And then he said, the thing is this. We can find a lot more reasons not to bring on an American than a foreigner because we have more access. We can talk to their – we probably know their professors. And I think, at the same time, and – because you talked about, well, they show up with a fishy-looking green card. We just don’t have a lot of clarity into this immigrant workforce, whether it’s high skilled or low skilled.

So it’s easier than to, like, look at an American with a record and say, oh, well, you have a misdemeanor. We’re not going to hire you. But we’re going to hire someone who’s an absolute clean slate to us. And so I think it would be helpful if there was an office that would accumulate this kind of data on immigrants.

MR. KRIKORIAN: Peter, I mean, you, obviously, have been in this area, in labor law and on the NLRB and all that. Is there, potentially, a place for an office specifically devoted to pursuing this or at least shining a light on that?

MR. KIRSANOW: Yeah. That’s a really good point and it’s something that I’ve been, you know, interested in for quite some time. I think, you know, if you look at Title VII of the 1964 Civil Rights Act, it prohibits discrimination on the basis of all kinds of categories but one of them is national origin discrimination.

What I love about Jason’s study is that he looks at actual EEOC cases where Americans have been discriminated against in favor of foreigners or immigrants, and black Americans are discriminated at a higher level, proportionately. National origin discrimination, though, when you look at most EEOC cases, goes one way; that is, that someone’s claiming they’re being discriminated against by an employer because they’re from a country other than the United States of America.

But what we’re seeing is employers are discriminating against Americans based on their national origin. The EEOC has enforcement priorities. They change based on administration priorities and they change over a period of time. They will focus on a particular systemic problem that they perceive to be the prevailing issue of the day, and I would suggest this is one of the prevailing issues that maybe the EEOC, OSHA, other alphabet agencies could take a look at because Americans are being hurt by it. We’ve got, you know, data on this now and I think it’s inescapable.

But the traditional model has always been to look in one direction only and not look in terms of what is the palpable harm that’s being done to Americans by the preference by a number of employers to hire – in my case, the concern is illegal immigrants, but immigrants generally.

MR. KRIKORIAN: I actually had a – if there was anyone with a question, I’ve got – oh, OK. Yeah. Go ahead.

Q: So this is back to Kevin about high-skilled immigration, and I know that a lot of the Indian consultancy companies get a lot of flak for abusing the H-1B visa program. But what we’re noticing, because I’m from Silicon Valley myself, is that Big Tech is also abusing these visa programs and Oracle, for example, is being, you know, investigated by the DOL where they underpaid women and minorities of over $400 million and they had a preference for only hiring foreign graduates at job fairs. There’s a lawsuit, I think, being pushed by a South Korean person at Intel.

MR. LYNN: Right. Ho Ryu Seong (sic; Hoseong Ryu).

Q: So my question is, is there something now bigger at play in the high-skill immigration field where it’s not just Americans that are being discriminated but this whole idea of nepotism that’s coming into play specifically from, you know, the high immigration numbers from Indian nationals now own the labor market in the tech fields – there’s now a preference for only hiring their own?

MR. LYNN: We’ve seen that time and again, and there’s a lot of political clout behind this. We see, when you look at prevailing wages in the tech community, H-1B visa holders are – could be down anywhere from 40 (percent) to 60 percent of the wage that you would pay an American.

So there’s definitely a preference from that standpoint. There’s also a kind of clanning that goes on. And again, this was – again, it’s the reversal of EEOC as we know it where things that wouldn’t be tolerated in the workforce – we look for diversity in our workforce. You brought up the case of Ho Ryu Seong (sic; Hoseong Ryu), the fellow of South Korean descent here in the United States who was suing his employer. Was it –

Q: Intel.

MR. LYNN: Intel. And, you know, he was passed over for promotion several times by people and his co-workers from Southeast Asia were promoted. So we have a lot of evidence of that and I’d like to see more court cases on this as well.

But, certainly, it’s impacting hiring. It’s impacting how people are promoted and treated in the workplace. And, again, I think it’s a form of asset stripping that’s going along and, in a way, I think somewhere in the 1990s someone made the decision to stop investing in the U.S. and Europe and invest in Asia where they could maximize profits. And what we’ve seen over the last few decades is the push for the free movement of capital and people across national borders. And it’s had negative impacts here, as Jason and Peter and Mark have talked about, to the worker here in the United States.

MR. KRIKORIAN: Is there a question back there?

Q: Yeah. I’d like to ask if there’s kind of a mind share about IT and STEM workers that only foreigners can do that. I spent years – especially we talk about Disney and PG&E. They were both ERP (ph) clients. You know, the consulting firm I worked for at the time dealt with both of them and I’m familiar with the Disney case. And it’s pervasive. When people do business process reengineering, they wind up getting standardized processes. They move them offshore, and these jobs are lost like crazy. But is there a mind share that you’re an American worker – you can’t do it?

MR. LYNN: There absolutely is. What came out in the Buchanan vs. Tata Consultancy case as well as the Ho Ryu Seong (sic; Hoseong Ryu) case at Intel, they were told that Southeast Asians are more intelligent and harder working than the Americans are, and I think that’s a myth. But what we see is I think it’s – at this point, it’s hit a level where it’s now social Darwinism and we’re seeing people promote their own, and to our detriment.

HCL is a(n) ICC – an Indian consulting company. They – Boeing had outsourced their software development to them and they were, in fact, working on the 737 Max. Yeah. So we, as Americans, are getting used to lower and lower standards of quality out there when it comes to our IT and other forms of service delivery, and in the case of Boeing it had much greater ramifications.

MR. KRIKORIAN: Are there any other questions?

One point I wanted to bring up, I don’t know if – I don’t think Jason mentioned it – what Jason looked at were actual EEOC lawsuits. So, in other words, it’s kind of the tip of the iceberg. It’s the, I assume, the strongest cases they went after them, and Peter would know maybe more how that works, but those would be presumably the strongest cases with the best evidence. There’s got to be a whole rest of the iceberg, you know, below the surface.

MR. KIRSANOW: Yeah, and what’s – I think what’s invaluable about what Jason has done is, you know, when we looked at the studies at the Civil Rights Commission – you know, we had three hearings with respect to illegal immigration – what you saw were economists and other researchers who would come by and talk at a 30,000-foot level about economic meta data and they would say OK, well, because of A and cosine this and all this other stuff, you know, it must be that blacks are being displaced.

So you’d have all this data. But it’s important to come down with actual cases that support that type of data and that’s what Jason has done. When I’ve been involved in these matters, you see this from time to time. You may see – again, I’m one labor lawyer out of thousands. So I may see a discrete case here, a discrete case there, and it triggers something in my mind. I’m going, this really sounds peculiar. But what Jason has done is look at a number of cases where you see over and over and over again a preference for illegal immigrants or foreign-born workers versus Americans and, particularly, black Americans.

MR. KRIKORIAN: Thank you. Yeah, one last question. Yeah.

Q: I’ve been doing this for a long time. But let me just ask if anyone on the panel has a question about this.

Look, Jason, you’ve uncovered some really compelling anecdotes, right. Now, there’s nothing reporters love more than compelling anecdotes. In fact, they often ignore the big picture to just tell the specific story and many people would argue we get a very distorted story because the compelling pathetic anecdote is really powerful. And, yet, you see no stories on any of these cases even though, as you’ve discovered, there’s a clear paper trail.

There’s people to interview, there’s a whole case there, and it seems that no one is interested. Why do you think it is? Any of you. Why are reporters not interested in these anecdotes, which seem pretty powerful and right up their alley?

MR. KRIKORIAN: Any ideas? I think it interferes with the narrative. In other words, it’s not sort of the storyline that – you know, that the media generally wants to buy into. Though, to be fair, BuzzFeed was one that really did write about this before once, before the president got elected. Now it’s all about him when they write about foreign workers. You know, Mar-a-Lago is hiring foreign workers, and it’s all true.

But before any of that was an issue, they actually wrote quite extensively a whole series of stories, one of which was actually titled, “All You Americans Are Fired,” and it was a quote but I think it was a different instance. So –

MR. KIRSANOW: Was it? Wow.

MR. KRIKORIAN: Yeah, I think it was a different instance. It was in Louisiana, I think.

So my point is, is that you’re right in a sense that that one example of several BuzzFeed stories is kind of the exception that proves the rule, that generally speaking, this is the kind of thing you would NPR to be emoting about all the time and the Wall Street – and The New York Times should be flooding the zone, and they don’t.

Let’s wrap it up here. Just to remind everybody – I don’t think I pointed it out – Jason’s report is on our website, The whole thing is there, as well as all of the rest of our work. The video and transcript of this panel will be on our site shortly as well, and I want to thank all of our participants and all of you here in the audience as well as folks at home watching on their computer screens

And hope to see you at our next event. Thanks. (Applause.)