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Grassley's Attack On Employment Visas Goes Far Beyond H-1B - Pt 1. By Roger Algase

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The following post has been revised and updated as of March 22 at 10:20 am

On March 17, Senate Judiciary Committee Chairman Charles Grassley (R-Iowa) launched his expected attack on the H-1B program in a prepared statement for his hearings on employment-based immigration. But his attack went beyond H-1B, and included an assault against L-1 visas, and even against the Optional Practical Training program for F-1 students. It seems that Senator Grassley has never run across a foreign skilled worker whom he doesn't regard as a danger to America.

Senator Grassley's committee hearing is entitled:

"Immigration Reforms Needed to Protect Skilled American Workers"

The title itself is instructive, because it shows a lack of balance and an interest in dealing with only one side of the H-1B equation, namely the protectionist side. Nothing in the title mentions anything about the the job creation, innovation, global competitiveness and other benefits to America's economy and businesses in being able to attract skilled workers from every part of the world.

Then, in the body of his statement, Grassley launches into his description of the H-1B program, as he perceives it:

"Over the years, the [H-1B] program has become a government-assisted way for employers to bring in cheaper foreign labor, and it now appears that these foreign workers take over - rather than complement - the US workforce."

This inflammatory statement sets the theme for all of Grassley's remarks to follow - H-1B, in his view, is not a program for skilled foreign workers to devote their education and talents to enhancing America's economy. but is just a vehicle for cheap foreign workers to take over the US labor market and throw Americans out of work.

Even though Grassley does not use this term, his statement that "cheap" foreign workers "take over" the US workforce has the same overtones as those of the politicians who rail against the "invasion" of America by hordes of "illegal aliens". Even though barely into his remarks, Grassley has clearly left the universe of objective discourse about a useful and important visa program which might or might not benefit from some improvements here and there, and is already operating in a different universe of fear and prejudice against foreign workers in general.

Having "established" that H-1B workers are undesirable because they allegedly steal American jobs, Grassley goes on to allege that there are too many of these foreign workers.

"Even though the H-1B cap is 65,000 [per year], the actual number of foreign workers coming in through the program is much more because of numerous exemptions. For example, in Fiscal Year 2014, the agency in charge [USCIS] approved 315,857 H-1B petitions."

​But the above is just by way of introduction to Grassley's real attack on the H-1B program:

"The program is highly susceptible to fraud and abuse."

In support of this, he cites a study by the Fraud Detection and National Security Unit within USCIS which (according to Grassley) shows a 20% violation rate in a random sample of H-1B petitions. Of course this would be a serious problem, if true, requiring some countermeasures.

But this would still mean that 80 per cent of H-1B petitions are in total compliance with the law, even assuming Grassley's claim is correct. In other words, again according to his figures, it would mean that, in 2014, there were 252,685 approved H-1B petitions which even Senator Grassley could find no irregularity with.

Should these quarter million admittedly genuine petitions (according to Grassley himself) have been denied and the skilled foreign worker beneficiaries have been required to leave the US because of the other alleged 20 per cent rotten apples in the H-1B barrel?

Unfortunately, there is no such thing as an immigration program, or any US government program, that is entirely free from fraud and abuse. But is the appropriate response to cancel the entire program instead of taking reasonable steps to reduce or eliminate fraud while allowing people with genuine claims to benefit as intended?

Senator Grassley then turns to his next main theme - alleged abuse of US workers in the H-1B program. Fortunately for him, there appears to be a convenient bete noir for him to trot out as an exhibit - namely Southern California Edison, which, again according to Senator Grassley, allegedly laid off 500 American workers and replaced them with foreign workers.

The Senator does not claim that there was any fraud or wrongdoing in this regard, even though he alleges that in 2013, one of the two IT contract worker companies involved had paid $34 million in a civil settlement in a completely unrelated matter.

Senator Grassley does claim that the 500 American workers lost their jobs (and were forced to train their replacements) to "cheaper workers who didn't possess the skills that they had". But instead of providing any factual support for this claim (which, even if true, would not have been against the law or involved any fraud or wrongdoing), he quickly switches the subject in a remarkable slight of hand:

"Worse still, most of the 500 jobs that had been held by by Americans at Southern California Edison will eventually just move overseas. According to the Los Angeles Times, Edison admits that about 70 % of the work will shift overseas permanently."

But what does H-1B have to do with off-shoring? H-1B is a program that relates to jobs in the United States. It is the antithesis of off-shoring. Grassley implies, without presenting any evidence for this, that H-1B is, somehow, the first step along a slippery slope that ultimately leads to off-shoring because both involve hiring foreign workers.

But it is much more logical and reasonable to regard H-1B as the ultimate defense against off-shoring. If American companies are allowed to hire the best workers they can find for a particular position, regardless of country of origin, there is less incentive to move the job out of the US entirely. This way, the H-1B worker's skills, purchasing power, and tax payments go to benefit the US economy directly, not that of some foreign country.

One of the biggest incentives imaginable for off-shoring by US companies would b to cancel for further restrict the H-1B program.

Even though my respected colleague and distinguished legal scholar Nolan Rappaport (see Part 2 of this series) warns me against engaging in ad hominem arguments in a number of personal communications, and with good reason, I do not think it is unfair or beside the point to look at Senator Grassley's record to see if he has ever voted against any foreign trade agreements which actually promote off-shoring, or whether his alleged interest in protecting the wage levels of American workers has ever been translated into support for increasing the minimum wage.

According the site:

http://www.ontheissues.org/Senate/Chuck_Grassley.htm

Senator Grassley has consistently voted for foreign trade agreements, which normally involve off-shoring American jobs, and has opposed raising the minimum wage here in the US. The AFL-CIO has given him a zero rating on supporting labor union rights.

It does not appear that Senator Grassley's claimed support for protecting American jobs and wages is evident in any other context except that of trying to keep skilled foreign workers out of the United States or forcing them to return to their own countries.

I also want to thank Nolan for providing me with the link to Senator Grassley's statement:

http://www.judiciary.senate.gov/meet...erican-workers

Of course, Nolan's sharing this material is for informational purposes only and does not imply either agreement or disagreement with the content.

In Part 2 of this 3-part series I will show that Senator Grassley's attacks against skilled worker immigration are not limited to the anti-immigrant right's (and admittedly, some of the left's too) favorite whipping boy - H-1B, but extend to other programs as well. I will also examine (in Part 3) whether there has already been a major, entirely reasonable, legislative attempt to address Senator Grassley's concerns by enacting reforms which could increase confidence in the effectiveness of H-1B - an attempt which Senator Grassley voted against.

Finally, also in Part 3, I will suggest a possible H-1B reform which could meet Senator Grassley's concerns about this program more than half way, if he is genuinely interested in improving the program, rather than simply eliminating most or all immigration by skilled Indian, Chinese and other foreign workers in order to exploit anti-immigrant nativist feeling among "conservative" white voters.
_______________________________________
Roger Algase is a New York lawyer and graduate of Harvard College and Harvard Law School. He has been practicing immigration law for more than 30 years, focusing on H-1B and other employment-based immigration cases. He welcomes questions at algaselex@gmail.com






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Updated 03-22-2015 at 01:02 PM by ImmigrationLawBlogs

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  1. Nolan Rappaport's Avatar
    Excellent article.
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