H-1B Wage Rule Change Delayed, Again

Dear All,

The Biden administration continues to carry the water for the corporatocracy which is bad news for tech workers. Last week we reported on our Twitter feed that the U.S. Department of Labor (USDOL) will be delaying the implementation of the H-1B prevailing wage rule change until November 2022.

The rule change crafted by the Trump administration would have raised the prevailing wage levels that employers would be required to pay H-1B visa workers. Although more fundamental reforms to the labor condition application are still necessary, this rule change would have been a step in the right direction.

A month ago, U.S. Tech Workers, along with half a dozen other organizations and hundreds of individuals, submitted comments to USDOL on the rule change through the public comment process. Sadly in their press release, USDOL sided with foreign workers, corporations and organizations that seek to keep the racket going.

Although the rule change has been delayed for more than two years, we expect the Biden administration will allow it to be quietly forgotten. Tragically, this is what we can expect from a USDOL that places the interests of corporations over workers.

Lawsuit to Prevent Another Reform

If delaying the H-1B prevailing wage rule change wasn’t bad enough, the American Immigration Lawyers Association (AILA) filed a lawsuit targeting the H-1B rule change that terminated the H-1B visa random lottery and replaces it with a process that prioritizes visa distribution based on the highest wage offered. The shotgun approach of the current H-1B random lottery system favors Indian IT outsourcing companies who profit from a labor arbitrage model that ultimately leads to the displacement of domestic workers.

Oddly, reforming the flawed lottery system has bipartisan support. Even our arch nemesis, the D.C.-Libertarian think tank Cato Institute supports this rule change.

The immigration attorneys who have filed the lawsuit assert the wage-based system would discriminate against entry-level international students entering the U.S. job market, as well as foreign doctors looking to become residents at U.S. teaching hospitals. Now, this is where things take a turn to the truly ironic.

Haven’t we been told time and again that the H-1B visa program is reserved for the “best and brightest” and that these foreign workers possess specialized skills that no American worker possessed? If this is true, why are the AILA attorneys concerned about entry-level workers?

The author H.P. Lovecraft once stated, “From the greatest of horrors, irony is seldom absent.” I keep waiting to wake up from what seems to be a horrific dream in which American workers are being thrown from the corporate bus. But it’s not a dream, and it is the attorneys of the AILA that are driving the bus.

H-4 EAD Lawsuit in the News

Since 2015, attorney John Miano has been in courts battling to rid us of the H-4 EAD that is one of several programs used to displace workers. Earlier this week, several mainstream media sources published articles attacking Miano’s lawsuit and spewing corporate propaganda.
Companies like Apple, Amazon, Microsoft and Google decried the lawsuit and signed onto an amicus brief supporting the work authorization program for the spouses of H-1B workers.

The H-4 EAD program was created through Executive Action by President Obama in 2015, which allowed the spouses of H-1B workers to receive an employment authorization document (EAD). This EAD allowed them to work ANY job at any wage level in the United States. The EAD handout by the Obama administration was specifically given as a consolation prize to Indian nationals caught up in the employment-based Green Card log jam queue.

What the Indian H-1B workers wanted were EAD privileges for themselves once they were approved for employment-based Green Cards. But that would have been beyond the power of the president to grant. So, what they got instead was a new program that granted EAD privileges to their spouses so long as they have an approved petition for an employment-based Green Card. The Indian lobbying groups were not very pleased. But in the end, I suppose they saw it as better than nothing.

The H-4 EAD numbers have been steadily rising, with 93 percent of H-4 EADs going to Indian nationals (the remaining few go to Chinese nationals). Tech CEOs are eager to protect the H-4 EAD program. They understand all too well that getting by in America today depends on a dual-income household. Underpaid as they typically are, H-1B workers may decide to return to their country of origin should they lose that additional source of income. And CEOs need their cheap and compliant laborers. So, they cranked up their well-oiled public relations machinery and went to work convincing the American public of the need for more foreign workers.

Given the media blitz on Miano’s lawsuit, I am thinking exploiters are trying to win the case in the court of public opinion because they realize that they are on very shaky legal ground. This is a classic separation of powers issue because it is Congress, and not presidential fiat, that creates immigration law.

Workers for a Dollar an Hour

If you want to see the rot that undergirds our nonimmigrant work visa programs, I leave you with a recent story by The New York Times, which uncovered what is essentially a slave trafficking operation in New Jersey involving Indian nationals that were brought in as “religious workers” under the R-1 visa program. Once in the U.S., they were forced to work as construction workers building a Hindu temple being paid as little as $1 an hour.

One dollar an hour! I hope they were at least given free coffee and lunch. In the end, the corporatocracy is going to continue its antics until the policies that allow this kind of bad behavior are legislated out of existence.

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In Solidarity.