Congress Silent in the Face of American Worker Replacement

As lawmakers head home, several bills that crack down on guest worker visa abuse seem destined to die 

by Brendan Kirby | Updated 29 Sep 2016 at 11:23 AM

The New York Times sparked a bipartisan torrent of outrage last year when it shined a giant spotlight on a practice that repulses the vast majority of Americans — big corporations replacing their employees with foreigners on guest worker visas.

The Times story focused on about 250 Disney World IT workers who lost their jobs in 2014 — but not before suffering the indignity of having to train their cheaper replacements as a condition of severance.

“But … you’ve got a lot of very deep pockets that have a vested interest in being able to do this. Let’s face it. Both parties are taking money from these sources.”

Senators and representatives of both parties rushed to file bills to address one of the few areas of the contentious immigration debate that seemed certain to attract bipartisan consensus.

And then nothing.

In the 15 months since, there has been no significant action on any of the bills, which all seem destined to die when the current term ends. That includes a bill co-sponsored by Senate Judiciary Committee Chairman Charles Grassley (R-Iowa). Surely the chairman could move his own bill, right? Shouldn’t a bill to stop this practice be a no-brainer?

“It should be,” said Ira Mehlman, a spokesman for the Federation for American Immigration Reform. “But … you’ve got a lot of very deep pockets that have a vested interest in being able to do this. Let’s face it. Both parties are taking money from these sources.”

Representatives from Grassley’s office and other legislators did not respond to repeated inquiries from LifeZette.

The Tech Worker Shortage Myth
The program that Disney took advantage of to bring in temporary workers from India, the H-1B visa, has been around since 1990. It offers businesses up to 65,000 visas each year. An additional 20,000 visas are available for workers with postgraduate degrees. Foreigners working at American universities and government or university-affiliated research facilities are exempt from those caps.

The visas allow foreigners to live and work in the United States for up to three years, and the visas can be renewed for an additional three years. After that, companies can sponsor foreign employees for green cards to allow them to live permanently in the United States.

Supporters argue the visas are crucial to the American economy because they allow companies to find high-skill workers who are in short supply in the United States. But critics contend that there is no shortage of high-skill workers. The Center for Immigration Studies in 2014 pointed to Census Bureau figures indicating that there were 12.1 million Americans with science, technology, engineering, and math degrees, but only about 5.3 million STEM-related jobs.

Average wages in most STEM jobs have remained relatively flat over the last decade — suggesting that businesses are not having to pay a premium for STEM workers, as should be the case in the event of a genuine shortage.

Critics contend the real reason U.S. firms like the H-1B visa is that it allows them to hire foreigners at lower salaries. Hal Salzman, a Rutgers University professor who has studied the issue, noted that H-1B workers have less freedom to switch jobs or negotiate better pay because the employers control the visas.

That results is a relationship akin to indentured servitude, according to critics.

Salzman said existing provisions for American workers are weak. Unlike rules governing the H-2B visa for low-skilled workers, there is no requirement that businesses applying for H-1B visas advertise for American workers and take other steps to prove U.S. workers are unavailable. He said companies have to complete a form attesting that they are paying the prevailing industry wage — but he added that government regulators rarely verify those assertions.

Growing Trend
Since The Times exposed the Disney case, other companies have pursued the same strategy. Southern California Edison, Toys 'R' Us, and Abbot Labs are among the companies that have dumped American employees in favor of H-1B visa workers. Just this month, Caterpillar joined those ranks, announcing that 300 employees in Illinois would lose their jobs even as it continues to recruit H-1B workers.

Some laid-off workers have fought back in court, but attorney John Miano said they face an uphill fight. Unless a worker can prove illegal motivations, such as age discrimination, the practice meets the letter of the law.

"It's very tough to bring these cases, because the law is in the employers' favor," he said. "With the information available, it's perfectly legal."

Since companies often make employees sign confidentiality agreements as a condition of severance payments, it is difficult to measure the scale. But Russell Harrison, a spokesman for the Institute of Electrical and Electronics Engineers, said the practice is far more widespread than most people realize. He said outsourcing firms currently hold between 300,000 and 700,000 H-1B visas.

"The only thing that is saving this from wiping out millions of jobs is the H-1B cap."

"The only thing that is saving this from wiping out millions of jobs is the H-1B cap," he said.

Mehlman, the FAIR spokesman, said businesses want maximum flexibility in controlling their workforce, even if it means pushing American workers out. And those corporate interests tend to get their way in Congress, he said.

"They've got the money, and that talks louder than voices of the American people," he said. "It's one of the reasons why people are so angry at the political class."

Salzman said there is a tremendous mismatch in resources because traditional unions — even if they oppose H-1B visas — spend more time on issues that directly impact their members.

"The shortest answer is the industry is spending $15 million a month in Washington to make sure nothing moves on it," he said. "The tech workers have no organization to speak of."

Tech Workers Outgunned
The Institute of Electrical and Electronics Engineers cannot match industry firepower, Harrison said. He said the industry agreed to fund the campaign in favor of the so-called Gang of Eight immigration reform drive in 2013 as long as advocates agreed to accept an expansion of guest worker visas.

"They spent somewhere in the neighborhood of $50 million trying to get the comprehensive immigration bill passed,"  he said.

Another impediment to a legislative response is an inability to reach consensus inside or outside of Congress on the appropriate action. Harrison said his organization favors a bill introduced in December by Sens. Jeff Sessions (R-Ala.) and Bill Nelson (D-Fla.) that would cut the annual number of H-1B visas by 15,000 and award them to companies paying the highest salaries — rather than through a lottery, as is currently the case.

NumbersUSA, which advocates for lower levels of immigration, recommends a bill offered by Sessions and Sen. Ted Cruz (R-Texas) that would require employers to pay H-1B visa workers a minimum of $110,000 or the same as the American worker who previously had the job, whichever is higher.

Mehlman said FAIR believes the Sessions-Cruz bill is the strongest proposal — but added that the organization believes a bill by Grassley and Sen. Richard Durbin (D-Ill.) would improve the current system. It would change the way the visas are allocated, giving priority to workers with advanced STEM degrees and highly paid workers.

Chris Chmielenski, director of content and activism for NumbersUSA, said H-1B visa opponents fear that if Congress does act, it will be on a bill sponsored by Rep. Darrell Issa (R-Calif.) that he and others said would do little.

"They came up with bills very carefully crafted to look like they were going to do something but don't actually do anything," he said.

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