Charles Breiterman's Picture

Updated:  

  by  Charles Breiterman

Karl Kiefer, a true citizen-scholar from Sunbright, Tennessee, examines the H-1B visa program. An official government summary of the H-1B visa is available by clicking here. The main use of the H-1B visa is for employers to bring in foreign workers who hold a college degree. Typical occupations include architects, engineers, computer programmers, and accountants. You might want to watch this video on YouTube, of an attorney with the law firm of Cohen & Grigsby disucssing how a company can turn at H-1B worker into a permanent Green Card holder. His comments demonstrate the mentality behind the entire process: "Our goal is clearly not to find a qualified and interested U.S. worker." (See time index 1:44).

History of H-1B Legislation Shows More Than Employer Abuses:
Misinformation Series

By Karl Kiefer

When I started to research this subject I only had basic knowledge of the H-1B program. Coming from a blue collar background, I had limited exposure to the H-1B statistics and abuses that most high tech workers are familiar with.

As I progressed, it occurred to me that the history of decision making and legislation surrounding the H-1B visa was a lot like the Halloween ghost stories that scared me most as a child. That "bump in the night" or insidious noise like "scratching on the window" left me feeling sure there was something amiss, even though I couldn’t quite put my finger on the source. The ones that provoked feelings of impending doom accomplished their intentions the best.

So in the spirit of Halloween, here’s a tale to rekindle those shadowy, incessant feelings of imminent disaster you may have been experiencing of late.

Recently, Sen. Chuck Grassley (R-IA), in a letter to USCIS concerning the flawed H-1B program, wrote " The United States is in need of an immigration overhaul. ..." Sen. Grassley went on to say, " ... The agency can take immediate steps to eliminate fraud in the H-1B program, ... Employers need to be held accountable so that foreign workers are not flooding the market, depressing wages, and taking jobs from qualified Americans. ..." Along with changing some laws governing the program, Grassley stresses that decisions made at the administrative level could expedite more immediate changes concerning fraudulent practices by employers.

Senator Grassley is right. The H-1B foreign worker program, in its current form, is an insult to the highly trained Americans that it discriminates against. But, employers are not the only ones who should shoulder blame for the fraud and abuse we are seeing now. These abuses are the result of a disturbing pattern of political subterfuge for most of the last forty years.

Legislators used questionable ethics to accomplish their goals. Moreover, irregular accounting practices,1 policy decisions by administrative department heads, and reinterpretations of original language by sub-committees have all implied a single minded purpose. By means of political subterfuge, politicians, at the behest of industry special interests intent on obtaining cheap labor, have purchased their measure of success at expense of American citizens.

The Immigration and Nationality Act of 1952 defined a nonimmigrant temporary worker2 under the original H-1 visa, as:

"an alien having a residence in a foreign country which he has no intention of abandoning (i) who is of distinguished merit and ability and who is coming temporarily to the United States to perform temporary services of an exceptional nature requiring such merit and ability."3

Beginning in 1970 and due to pressures from industry, changes were made in the foreign worker visa program that literally changed the intent of the original legislation. Congress, attempting to keep the US competitive in a growing world economy, effected changes that degraded it to the point where the current name no longer fits its true meaning.

To explain this, let’s revisit the term "nonimmigrant temporary worker."

The first casualty of political erosion was the word "temporary." Beginning in 1970 and culminating with its demise in 1990, all traces of temporary were removed. The temporary nature of the job was removed through the reinterpretation of crucial phrases. Finally, with the acknowledgment by Congress in the Immigration Act of 1990 that many nonimmigrants (as well as employers) wanted the temporary nature of their residence to become permanent, the H-1B became a "dual intent" visa.3 This was not missed by American employers who jumped at the chance to hire workers who would be content with lower wages than their American counterparts, as well as, be available for long term employment .

The Immigration Act of 1990 permitted this "dual intent" while still maintaining its temporary impression. It also raised the total years of visa stay (from the old number of 5) to 6 years. According to "A Legislative History of H-1B and Other Work Related Visas", by Rob Sanchez of ZaZona.com, this is considered the birth of the H-1B visa.

As of 1990, the original (1952) definition read something like this:

nonimmigrant temporary worker "an alien having a residence in a foreign country which he has no intention of abandoning (i) who is of distinguished merit and ability and who is coming temporarily to the United States to perform temporary services of an exceptional nature requiring such merit and ability."

Fast forward to November, 2002 and the 21st Century Department of Justice Appropriations Authorization Act, H.R. 2215. There is a provision in the bill dubbed the "7th Year Extension". It allows H-1B visa holders to extend their stay past the 6th year if a labor certification has been pending for at least 365 days. Furthermore, they can request this extension on a yearly basis until they get a green card. Of the 400 members of the House who voted in favor of this bill, 206 were Republicans and 193 were Democrats.4 That’s what I call a bi-partisan backstabbing!

And let’s not forget the kids. In 2008, Michael Chertoff, Homeland Security Secretary signed a new extension to the Optional Practical Training period for foreign students working in the U.S. It extended the OPT period from 12 to 29 months. This more than doubled the time they are allowed to work in internships in the U.S. Mr. Chertoff imposed this extension without a Congressional review or public knowledge.4 This boon effectively grants them more time while they wait for their H-1B visa approval.

Changes made to the misnomer of "temporary" are only some of the problems with this dysfunctional law. The events above show that "non-immigrant" is affected as well. In addition, changes in the wording of the definitions pertaining to qualifications were made. These changes lowered the original intent for persons of preeminence, to those holding a bachelor’s degree.3 An in depth analysis of these events presents a historically documented pattern of attempts to ease restrictions that would lead to the admission of more foreign workers.

Here’s that "original definition " again. Keep in mind that the new definition dwells in the same realm as "change you can count on".

Non-immigrant temporary worker: "an alien having a residence in a foreign country which he has no intention of abandoning (i) who is of distinguished merit and ability and who is coming temporarily to the United States to perform temporary services of an exceptional nature requiring such merit and ability."

Are there enough United States born workers in the fields of science, technology, engineering, and math who could perform those services?

A 2004 study by the federally funded RAND National Defense Research Institute found that "Despite recurring concerns about potential shortages of STEM [Science, Technology, Engineering, Math]personnel in the U.S. workforce, ... we did not find evidence that such shortages have existed ... Likewise, "underemployment patterns"—indications of STEM workers involuntarily working out of their fields—suggest that underemployment of STEM workers is relatively high compared with non-STEM workers."

Furthermore, in a 2008 RAND report (prior to the dismal unemployment numbers we’re seeing now) researchers found "no evidence of a current shortage of qualified S&E workers."

Those in agreement with the RAND findings include Michael Teitelbaum of the Alfred P. Sloan Foundation in New York, which funds scientific, economic, and civic research. Teitelbaum says, the education pipeline is supplying "substantially more scientists and engineers" than the job market can provide for.

But, in a USA Today article which ran on July 9th, 2009 titled "Scientist Shortage? Maybe Not," the President’s science advisor, John Holdren disagrees.

So, where are all these U.S. born STEM workers going to find work? Holdren says he is "optimistic that the jobs for them will materialize." –What? I hope the lessons of verification learned in the recent health care debate have not been lost on Mr. Holdren. Adult Americans require factual, verifiable information, not bedtime story fantasies.

A "true" reform of America’s immigration laws will equal the current health care debate in terms of its complexity. It has been too easy, for too long, to exploit the loopholes in the temporary guest worker program. Politicians have repaid special interests for their support by developing a program rife with opportunities for exploitation and by hogtying its regulatory process. I agree with Sen. Grassley’s (R-IA) grave concerns regarding the H-1B program. It’s time to put the lid back on the candy jar.

Yet, that isn’t what makes the hair on the back of my neck stand up in the same way a Halloween ghost story does. That just makes me mad! Nor am I very apprehensive about the fact that political "bandaids" at any level of intervention, will cure much more than the immediate problems.

So what is it that fills me with apprehension and dread like the Halloween tales of my childhood? It is the potentially impossible search for individuals with the steadfast objectivity, integrity, and uncorruptible motives that were visibly missing from the sequence of events above.

References:
1 Due to accounting errors and "creative" accounting methods, the INS in 1997 and 1999; and the DHS in 2005, issued tens of thousands more H-1B visas than were allowed by law. The overage in1999 was dealt with by hurried, stop gap legislation. See ref. #4
2 According to the USCIS and USDHS
3 B. Lindsay Lowell, "H-1B Temporary Workers: Estimating the Population" (May 1, 2000). Center for Comparative Immigration Studies. Working Papers. Paper wrkg12. http://repositories.cdlib.org/ccis/papers/wrkg12
4 Rob Sanchez, "A Legislative History of H-1B and Other Immigrant Work Visas", ZaZona.com

Tags:  
America's Jobless
American workers
Legal Immigration
High-Tech Worker Visas
visas
NumbersUSA's blogs are copyrighted and may be republished or reposted only if they are copied in their entirety, including this paragraph, and provide proper credit to NumbersUSA. NumbersUSA bears no responsibility for where our blogs may be republished or reposted.
1
Stephen 5202 of CA's picture
American workers have been betrayed by our government for years. Now that our economy is in the worst recession since the great depression, we must demand a moratorium on importing foreign workers. There are more than 15 million Americans unemployed, yet our government continues to import 1.5 million foreign workers annually. Americans are the most productive workers in the world. We won't work for slave wages. A fair day's pay for a fair day's work. Vote out all incumbents and send a message to our government. We won't tolerate elected officials who betray American workers! The job you save may be your own!
Show More
Show Less
3
M 2510 of MA's picture
Best article I have read on how the H1B was manipulated from its original temporary-high skills purpose to permanent-low skill way for companies to get cheap labor in exchange for green-cards. It is a slippery slope that is present in the execution of every program that starts out with a justifiable goal and over time cheapens to a free-for-all. IT and Engineering fields that used to be solid, middle-class and stable professions until about 1980 have been decimated by the free giveaways of H1Bs and GreenCards. And I think the worst is yet to come.
Show More
Show Less
4
Martin  1153 of WA's picture
The Recession's Over and Q3 GDP is +3%, Break Out the H-1B Champaign Per article from 9/2009 Whitehouse Q3 2009 report in part: "...There is broad agreement that the ARRA has added between 2 and 3 percentage points to baseline real GDP growth in the second quarter of 2009 and around 3 percentage points in the third quarter...." The rest of the URL: http://www.whitehouse.gov/administration/eop/cea/Economic-Impact/ Meaning, without the almost $1 trillion dollar stimulus IOU to our grandkids, made earlier this year, our "H-1B champaign Q3 GDP" goes back to about zero [or worse, IMO]. Ask the approx 50,000,000 severely underemployed and unemployed Americans today if "the recession's over" and more uncontrolled population won't hurt us at all now.
Show More
Show Less
5
David 4508 of WA's picture
I strongly agree with you and Karl Kiefer, but let's just imagine for the sake of argument that there really were a shortage of American STEM workers. What would be the best way of encouraging more young Americans to pursue STEM careers? Would continually threatening to bring in more and more foreign workers to take their jobs--a threat not experienced by American professionals in other fields--be a good positive way to motivate American youngsters to work in STEM careers? Or would giving American workers in these fields the same protections as other workers go a long way to ensuring the prospect of stable careers for young Americans and help to motivate young Americans? Personally I think there is no shortage of US STEM workers, especially if you consider older STEM workers who may have become unemployed or underemployed in previous rounds of layoffs. It may indeed be difficult to persuade the best and brightest American young people to go into STEM careers because they've seen the way Congress and American employers have treated their parents or older brothers/sisters in STEM fields. If we TRULY believe that STEM work is essential to the nation's future, we should be doing all we can to ensure that highly qualified Americans are pursuing these fields. Bringing in foreigners whose commitment to America is very questionable isn't the way to build a strong base for the future.
Show More
Show Less
6
Srinivasan 0774 of MI's picture
A tidbit of history NOT covered by Breitterman in the article, but which should NOT be ignored. Until 1988, there was also no annual numbers-quota for H1-b's; late in that year (just prior to elections), it was changed when Canada-US Free Trade Agreement (later transmogrified to NAFTA) was passed--with the idea that Canadians TC (later renamed TN-1) visas would replace the H1-b (however, there was also an inherent misassumption that all applicants for TC would be single workers) as the non-dual-intent default temp-worker. Unfortunately, INS (later USCIS) did not adjust for these (I remember entering Atlanta from Gatwick in 1999 on a TN-1 and being asked "where's the visa?") nor for the 1986 shamnesty of 3 million by Reagan--with the result that many potential legal immigrants wound up trapped (myself included 1997 to 1999, on a TN-1, renewed twice in that timeframe) in hurry-up-and-wait situations or immigrating to Canada (hardly applicable in my case, as I was already "from" Canada--and had the option of returning been feasible in my eyes, I probably would not have even started the GC process) as back-up (which causes delayed-compounding of the problem, since landed-immigrants in Canada become eligible for naturalisation in maximum of 3 years--after naturalisation, many will be eligible to come south to US on TN-1, which costs the US employer no more than $56 to obtain for the Canadian employee at entry; the employer is, due to relatively low cost, legally allowed to ask that the employee get the initial TN-1 at own-expense).
Show More
Show Less
7
Richard 807 of CA's picture
The government's current population survey, which is where the monthly unemployment figures come from, gives the unemployment rate for engineers going back to 1963. The unemployment rate for engineers hit an all time high of 5.9% in the 3rd quarter of this year. This is quite high for an occupation that normally requires a college degree. Prior to the 90s, the unemployment rate for engineers tended to be under 2% when the economy was booming and between 2% and 3% during recessions. For the 70-71 recession when the MSM became "concerned" about unemployed engineers, the unemployment rate for engineers was 2.2% in 1970 and 2.9% in 1971. The special privilege employers now have to import high tech labor is destroying these occupations.
Show More
Show Less
8
Gene 69 of CA's picture
Here are links to nine articles and LTEs that I have written regarding highly-skilled labor markets and the controversial (and corrupt) H1-B visa program. The bolded article is the one that connects corrupt lobbyist Jack A. Abramoff with the Microsoft Corporation. http://www.caller.com/news/2008/sep/14/letters/ Corpus Christi TX Caller - Times Letters to the Editor: 09.14.08 Right sentence (Jack Abramoff's role in H-1B Visa program expansion.) Foreign workers take jobs away from skilled Americans Washington, DC Examiner Op-Ed 21 August 2008, page 22 http://www.dcexaminer.com/opinion/columns/guestcolumnists/NO_Foreign_wor... or http://tinyurl.com/GeneNelsonOpposesH-1BVisas Immigrants don’t "make it all work," they take work 6 August 2008 Letter to the Editor, Schenectady, NY Daily Gazette http://www.dailygazette.com/news/2008/aug/06/0806_print/ Whose University is it Anyway? 8 February 2008 University of Buffalo Spectrum (I earned my Ph.D. there in 1984) http://spectrum.buffalo.edu/article.php?id=35243 The Greedy Gates Immigration Gambit Fall 2007 (Published in January 2008) http://www.thesocialcontract.com/pdf/eighteen-one/tsc_18_1_nelson.pdf http://tinyurl.com/37l8ry Career Destruction Sites - What American colleges have become Spring 2005 http://www.thesocialcontract.com/pdf/fifteen-three/xv-3-207.pdf Missing table regarding H-1B visa usage by NIH Grantees: http://www.jobdestruction.com/ShameH1B/Library/BrainSavers/H-1BVisaUsage... Original article with table at: http://www.cwalocal4250.org/outsourcing/binarydata/Career%20Destruction%... or http://tinyurl.com/nn28sp Colleges Have Become Career Destruction Factories How Not to "Solve" the Social Security Problem - Mass immigration is the wrong answer Summer 1999 http://www.thesocialcontract.com/pdf/nine-four/ix-4-260.pdf Gene A. Nelson, Ph.D.'s 13 April 1996 speech at the National Academy of Sciences Washington, DC headquarters. http://www.engology.com/ArtNelson.htm Note the draft of my 5 August 1999 Oral Testimony critical of the controversial H-1B visa program before the House Immigration and Claims Subcommittee, in particular the final two paragraphs http://judiciary.house.gov/Legacy/nels0805.htm I was able to get "on the record" in the case USA v Abramoff. I attended Jack Abramoff's sentencing hearing on 4 September 2008 at the DC District Courthouse. My 110 page "Victim Impact Statement" is document #40 in the Court docket in PDF format. It was filed with the Court on 3 September 2008. A searchable PDF copy is available at: http://www.cwalocal4250.org/outsourcing/binarydata/Abramoff.pdf . Also: http://tinyurl.com/koyqg2 It is also available including Judge Huvelle's handwritten approval comment via the DC District Court's PACER website. Please tell me what you think about these articles, particularly the newest Social Contract article, which is about the "Abramoff Visa." Thanks! Gene A. Nelson, Ph.D.
Show More
Show Less
9
Kevin 0637 of IL's picture
I would like to see NumbersUSA focus more on L1 visa issues. This year the cap of H1B visas were not even used since employers have figured out that they may hire L1 visas and pay them below prevailing wages without running into the law.
12
Vx 3126 of TX's picture
Because foreign nationals head up these organizations now! Same for major corporations...ever heard of a little Arkansas Corporation known as "Walmart"!If we do not shut down "ALL" Immigration for 10 years & deport, deport, deport...our kids are doomed!
13
Anna Marie 4420 of NC's picture
Obama takes so many tours...what he needs to do is tour a homeless shelter or tent city where hundreds of unemployed and now foreclosed on citizens are living. Let him tell them the recession is over. He'd best have great security because he'd get mauled.
15
Kathleen 9822 of WA's picture
When I grew up in America, I thought I will get a career , save up for a house and have a family. Then something changed while I was growing up. The government with direction from their corporate bosses had another dream. They asked how can we make the most amount profit with the least amount of cost. Then an idea like a light bulb went off in their heads, we dont need American workers. They rubbed their hands together in glee. The politicians sold the Americans the myth that we dont have enough American workers for those hi tech jobs or that Americans would never stoop to doing those low end menial jobs. We all bought it. Then it happened they came from all corners of the earth to work in America with the governments blessings. Now, I have no work,I have no house, I have no dreams of a future, I am an American.
Show More
Show Less
16
Rauf 4023 of NY's picture

Let's replace this government with H1B Visa holders. If they can do it to me, let's do it to them. I'd like to see how they feel