Work in BigTech for Hire: Americans Need Not Apply
Work in BigTech for Hire:
Americans Need Not Apply
A post-graduate
student-visa program is just another scheme to displace American technology
workers.
By Ian Smith — August 24, 2015
American technology
workers won a big victory in the federal courts this month. The D.C. District
Court ruled that a STEM-related visa program created by the Department of
Homeland Security was potentially damaging to the domestic labor market and
also in violation of federal rule-making procedure. For the plaintiffs in the
case, the Washington Alliance of Technology Workers, however, the fight against
BigTech lobbyists and Homeland Security has only just begun.
DHS’s so-called Optional
Practical Training (OPT) program allows foreign nationals to live and work in
the U.S. on a student visa even after graduation. In a rule promulgated by DHS
in 2008, foreigners graduating in a STEM field at a U.S. school had these authorizations
extended to nearly two and a half years after their graduation. U.S. employers
love this because, on top of the longer work period, they have a greater chance
to transition them into the H-1B program, a “professional specialty worker”
visa that can last up to an additional six years. Also, employers receive a tax
benefit for hiring OPT participants over Americans, as they do not have to pay
Medicare and Social Security taxes for aliens on student visas.
Plaintiffs’ counsel, the
Immigration Reform Law Institute (which I work for), argued in court that the
OPT extension, created not by statute but entirely by DHS, was really just a
way to circumvent the existing H-1B cap of 65,000 annual visa grants set down
by Congress years before. Helpfully for us, DHS had already admitted that this
was the purpose for the extension. As it explained in the agency rule creating
the extension, “the H-1B category is greatly oversubscribed,” which, as a
result, has “adversely affected the ability of US employers to recruit and
retain skilled workers.” With the H-1B cap having been held up by Congress over
the last few years, DHS did the next best thing. As H-1B guru Norm Matloff
describes in a blog post discussing our case, the agency simply went ahead and
created “a de facto expansion of H-1B.”
Let me digress for a
moment on the H-1B lottery and the “oversubscription” issue. Unlike other
visas, the fees for H-1B applications are refundable; there is no penalty for
oversubscribing. As a consequence, heavy H-1B users, such as the outsourcing
firms that supply BigTech companies as well as BigTech companies themselves,
always apply for more visas than they really want in order to get close to
their target. David North at the Center for Immigration Studies explains the
process here. So when you hear in the press and elsewhere that “petitions have
outstripped slots yet again by two-to-one,” the numbers are merely a reflection
of companies’ trying to game the lottery system.
As Matloff explains, OPT
is “just as harmful as H-1B.” The two programs are now similar in size, and the
benefits to BigTech are also similar. Like H-1B holders, OPTs are younger than
most American technology workers, and therefore cheaper. Citing the “prevailing
wage” rules that technically exist for H-1Bs, Matloff notes that “the legal
wage floors for H-1Bs depend on experience” (the worker’s age, in other words),
“so hiring young H-1Bs in lieu of older Americans is legal.” As he says with
cases such as SoCal Edison and Disney, “age was the key factor underlying the
wage savings accrued by hiring H-1Bs.” See this link for information on a
similar suit against Google based on age discrimination (which the company has
since settled).
In the case of OPTs,
however, this “wage floor” isn’t even available; being recent graduates,
they’re all young (and cheap). Further, OPT participants are even cheaper to
employ because, as stated earlier, aliens on student visas are exempted from
Social Security and Medicare.
Fundamentally, the OPT
program, like H-1B, allows BigTech firms to flood the labor market, creating
artificial competition and pressuring the standard of living we’ve earned
through decades of hard-fought democratic and labor reforms. The cost savings,
meanwhile, get siphoned up by private technology firms, many of which grew out
of taxpayer-funded military programs.
Thankfully, much of this
wasn’t lost on the judge. DHS had asserted that our plaintiffs didn’t have
standing to sue because (a) they couldn’t prove an OPT participant actually
took one of their jobs (an impossible and unfair demand) and, in the
alternative, (b) the plaintiffs were currently employed and so couldn’t show
any injury — all are employed, mostly in contract positions. The judge knocked
down both arguments by pointing out that “an influx of OPT computer programmers
would increase the labor supply, which is likely to depress plaintiff’s
members’ wages and threaten their job security, even if they remain employed”.
More concrete evidence was
also offered. Plaintiffs showed examples of job advertisements where only OPT
participants were requested to apply. As Matloff likes to note, these companies
are not just using H-1Bs and OPT participants to replace American workers, as
in the SoCal Edison and Disney cases; they’re also hiring them instead of
American workers. And many times, it isn’t “highly skilled” types that are
being imported but simply “ordinary people, doing ordinary work.”
The benefits of
circumventing the H-1B program are apparently big. Arguing that DHS’s chosen
29-month extension period was an arbitrary and therefore invalid decision,
plaintiffs showed the court that industry lobbyists CompeteAmerica, lobbyists
from Microsoft and the Chamber of Commerce, and others had all been in contact
with DHS requesting the same 29-month extension. And showing just how eager it
was to comply, DHS implemented the rule without going through the statutorily
mandated notice-and-comment period, a window of time in which the public can
criticize agency action.
DHS tried to argue in
court that skipping the process was necessitated by a looming “fiscal
emergency” in the U.S. economy that could be ameliorated only by letting “tens
of thousands of OPT workers” join the tech industry. Whose economic analysis
did DHS cite to back this up? Studies from the technology industry itself.
Ultimately, although the
court knocked down the OPT extension on procedural grounds, the victory is only
temporary. DHS can open up the rule to notice-and-comment and try again.
Further, the judge
rejected our argument that the program violates the law on other, more
substantive (and less procedural) grounds. According to congressionally made
statute (Immigration and Naturalization Act § 1101(a)(15)(F)(i)), student visas
cannot be allocated for working purposes and may be allocated only to “bona
fide students . . . solely for the purpose of pursuing such a course of study .
. . at an established . . . academic institution”. But again, OPT, entirely a
DHS creation, purports to let student-visa holders join the workforce. By
ignoring the stipulations of Congress, the program exceeds DHS’s statutory
authority.
By giving DHS the
authority to redefine what a “student” is, the court is allowing the agency to
set the duration and conditions of a student’s stay, potentially letting them
occupy the labor market for years upon years. Good for the foreign “student,” good
for the trillion-dollar tech industry, but bad for the American worker.
— Ian Smith is an attorney
who works for the Immigration Reform Law Institute.
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