On Monday, September 30, Reuters reported that "IBM has agreed to pay $44,400 in civil penalties to settle allegations that certain of its online job postings preferred foreign workers with temporary visas over U.S. citizens."
The Wall Street Journal reported that "The settlement agreement said the department had 'reasonable cause' to believe IBM committed violations from April 2009 to February 2013. The department said it opened its investigation of the company last December."
The settlement received very little attention but is significant because advocates for doubling future immigration - including high-skilled immigration - have planned a "fall blitz" to pressure the House into conferencing with the Senate immigration bill, S. 744. The Silicon Valley Leadership Group is in D.C. this week along with the agriculture lobby to argue immigration doubling is necessary because U.S. employers can't find U.S. workers.
IBM denied discriminating against U.S. workers. Last August, John Miano of the Center for Immigration Studies (and founder of the Programmers' Guild) uncovered an email from an IBM hiring manager who wrote that "the cost difference is too great for the business not to look for [H-1B workers]" before looking for Americans. Miano also uncovered IBM job postings for software engineering positions in Atlanta, Georgia and Boise, Idaho that required the applicant to "possess India work authorization."
The H-1B program was created to compliment the U.S. workforce, but hiring managers now view it as the first - not last - hiring option. Tech managers have been coached as far back as 2007 on how to place job ads intended "not to find a qualified and interested U.S. worker."
According to Computerworld's coverage:
As a general rule, job ads that that include either overt or somewhat coded invitations for foreign visa workers, have long been cited as a problem by H-1B visa policy critics. An example of a coded invitation might involve the use of "freshers," a term widely used in India to describe recent graduates.
Job listings that discriminate against U.S. workers are not uncommon but Justice Department actions against companies are rare and usually result in small fines that companies can easily absorb as a cost of doing business. Even with a $44,400 penalty, IBM most likely profited from years of discriminatory hiring.
IBM's job postings specifically favored H-1B and F-1 visa holders. Current law allows employers to hire H-1Bs at "prevailing" - not "market" - wages. As the Seattle Times reported last November, an employer can advertise for a job requiring a Bachelor's degree but note that applicants with a Masters would have an advantage. If the employer hires a foreign H-1B worker with a Masters, they only have to pay the worker at the lower wage of someone with a Bachelor's. Whereas, the employer would likely have to pay a legal permanent resident or citizen the higher wage.
Unlike legal permanent workers or citizens, H-1B workers cannot demand market wages because their employer holds their visa. F-1 workers are even more attractive to employers because they don't have to pay FICA or Medicare taxes.
U.S. companies discriminating against U.S. workers during a recession and jobless recovery should be big news, especially when advocates insist there aren't enough American workers who can "cut it" in today's economy. Kudos to Computerworld, Reuters and the Wall Street Journal for covering the story.
The tech lobby appears stronger than ever. The Washington Post reported earlier this year that a number of tech companies worked with Senator Rubio's office to secure provisions in S. 744 that would allow them "to avoid a requirement that they make a 'good-faith' effort to recruit Americans for jobs before hiring from overseas" and "sidestep proposed rules that would force it to pay much higher wages to many foreign workers." Facebook CEO Mark Zuckerberg recently met privately with House GOP House leaders. Members of Congress routinely repeat Silicon Valley's claims that there aren't enough foreign workers in the labor market.
If STEM workers - the supposed darlings of the U.S. workforce - can't rally the political class to their side of the immigration debate, imagine how the deck is stacked against American workers in other industries.
JEREMY BECK is the Director of the Media Standards Project for NumbersUSA
Updated: Mon, Oct 2nd 2017 @ 3:04pm EDT