Reforming the Worst of the H-1B Program

Dear All:

As we come to the end of the third quarter of 2020 we’re met with news of an additional 870,000 first-time jobless claims filed in the past week, bringing the total receiving unemployment benefits to roughly 12.6 million.

Of course this does not factor in those no longer receiving unemployment benefits, those who are discouraged and no longer looking for work and the underemployed. All and all, the situation is a grim and stark contrast to our highly inflated stock market. It just seems that there is a major disconnect between Main Street and Wall Street.

But the disconnects are everywhere. As Joe Guzzardi points out in this week’s column, the Trump administration may aspire to “Buy American, Hire American,” but the only significant relief tech workers across the country have received is rooted in the COVID-19 pandemic. Even with that, the Deep State, through its Department of State apparatus, is making every effort to speed H-1B visa holders in the Green Card process by making them eligible for EAD work permits. Seriously, you can’t make this stuff up!

Is there a way to push through these disconnects and blaze a trail that can lead to meaningful H-1B visa reform? I believe there is, and we have attempted to do just that by connecting activists on both sides of the debate at the grassroots level.

On Labor Day, I did a Zoom Meeting with Jyotsna Sharma, TV producer/host, and Shalabh “Shali” Kumar, founder of the Republican Hindu Coalition, to discuss effective H-1B visa reform while working on solutions addressing the Green Card backlog. The meeting was predicated on the notion that there would be no relief to the employment-based Green Card traffic jam if organizations like U.S. Tech Workers and the majority of Americans continued to oppose deceptive bills such H.R. 1044/S. 386. I suggested that it would be much easier to pass effective employment visa reform if legislators started focusing on the source of the backlog problem rather than dealing with the symptoms.

I stressed that there are no amendments that will make H.R. 1044/S. 386 a better bill. This is because simply removing the 7 percent country cap quota for employment-based Green Cards would only lead to greater backlogs down the road. Hence, the only way forward is to come up with a separate piece of legislation that focuses on stopping what created the backlog in the first place and then moving forward with a relief measure for the people in the backlog.

In our proposal, we would first seek to reform the worst aspects of the H-1B visa program. Second, the proposal would offer a one-time employment authorization document (EAD) giveaway for those who have been in that backlog more than four years and meet certain stipulations. This proposal effectively solves problems in ways outdated and obsolete amendments proposed by both Sen. Grassley and Sen. Durbin to H.R. 1044/S. 386 cannot.
This bill would restore the original intent of the H-1B and L-1 visa programs initially envisioned by Congress by doing the following:

  1. Eliminate the rubber-stamping Labor Condition Application (LCA) process with the Dept. of Labor.
  2. Eliminate current prevailing wage rate tiers and establish a wage rate determined by the Secretary of Labor to be at the 75th percentile for workers in the same location and occupation.
  3. Eliminate current H-1B caps and cap exemptions, and set a hard cap of 65,000 visas available each year for each employment visa category.
  4. Eliminate the American Competitiveness in the 21st Century Act (AC21) that allows infinite H-1B renewal extensions. Visas will be temporary and for a three-year period only. No additional extensions will be offered.
  5.  If the number of petitions for a fiscal year exceeds the 65,000 quota, the visas shall be allocated to those petitions with the highest salary.
  6. Employers will be required to provide evidence that a good faith effort to recruit and hire American workers was made before seeking foreign workers. Additionally, the Dept. of Labor will create a job website to advertise jobs to Americans.
  7. No visas will be issued to companies whose U.S. workforce consists of 10 percent nonimmigrant workers.
  8. The petitioning employer cannot place, outsource, lease or otherwise contract nonimmigrant workers to another entity.
  9. A U.S. worker who is displaced by a nonimmigrant has cause of action in tort for damages against his/her employer and any employer that employed the nonimmigrant, directly or indirectly.
  10. The Department of Homeland Security shall provide full transparency on statistical data from all applications for nonimmigrant visas authorizing employment and the action taken for each by making the information available to the public via a website.

Once this bill has been signed into law and has been implemented for a period of not less than four months, another bill will offer a “one-time” EAD early-filing privilege with the following stipulations based on hierarchy of preference:

  • Foreign doctors on H-1B stuck in the backlog for more than four years
  • H-1Bs with prevailing wage rates at Levels 3 & 4 in the backlog for more than four years
  • If USCIS denies renewals of certain H-1B/L-1 visas for workers with pending employment-based Green Card petitions, those workers’ petitions for employment-based Green cards will also be terminated and those freed up Green Cards can be used for the next worthy/deserving candidate.

Time and again Indian nationals in the backlog have expressed to us they would be only too pleased to accept EADs as an alternative to the Green Card. This is because the EAD will allow them to change employers and allow them to travel without having to constantly renew their visa. In this solution, the EADs are automatically renewed until an immigrant visa becomes available to candidate. This is the best and only concession that can be offered to effectively address grievances on both sides of the issue.

The root of all our problems stems from the passage of the Immigration Act of 1990. In the Act, the H-1B and L visa programs were created and became “dual-intent” visas. Dual-intent means the employment work visas may have been temporary but could become permanent through sponsorship for an employment-based Green Card.

Corporations, especially Indian IT firms, started exploiting the system to lure destitute IT workers from India who were only to eager to come on H-1B visas and work for less pay and benefits in exchange for future Green Card sponsorship.

This turned into a lucrative labor wage-arbitrage business model as the H-1B program became a conveyor belt for cheap labor from primarily one country. Furthermore, American workers were being harmed because corporations began displacing their native workforce utilizing an outsourcing model fueled with H-1B visa holders working in the U.S. for Indian IT consulting firms.

This has had tragic consequences. Just ask the former U.S. tech workers at Disney who had to endure the humiliation of training their Indian H-1B visa replacements. Or the many other workers at other companies such as AT&T, Tennessee Valley Authority, Verizon, Vanguard, IBM, Intel and many more who have endured the fate.

Our solution is to simply tackle the source of the problem – the H-1B/L visa dual-intent and AC21. Reform the program so there’s clear distinction between temporary and permanent, and initiate those reforms before tackling the backlog.

In closing, this is a win-win for all aggrieved parties. The pipeline of cheap labor from primarily one country is ended and those currently in the U.S. and in the employment Green Card backlog are free to find employment anywhere in the U.S. and have their EAD renewed until such time as their application for a Green Card is processed.

The big question: Is there enough political will in Washington to overcome the corporate interests who will scream like stuck pigs at the notion of their pipeline of cheap labor being cut off? We have a pretty good idea what the quisling Tim Cook will say and the pimps at NASSCOM. But, what would a giant like Teddy Roosevelt have said?

In Solidarity.