H1-B (was Re: [linux-elitists] Fwd: [declan@well.com: FC: DOJ quietly drafts USA Patriot II, includes anti-crypto section])

Bulent Murtezaoglu bm@acm.org
Sun Feb 9 03:59:08 PST 2003

>>>>> "KMS" == Karsten M Self <kmself@ix.netcom.com> writes:
    KMS> http://www.zazona.com/ShameH1B/
    >> This one is indeed shameful.  It actually tries to play on the
    >> fear Sept 11 caused along with resentment unemployed people
    >> have for foreigners working in the US.

    KMS> It also makes some good points.  I'm leaving it, on balance,
    KMS> for the present.  If someone can suggest other sites making a
    KMS> good case of the issue, I'll consider them.

Your own prose is _much_ better.  You also are better informed than
the zazona.com author.  (at least you got the 2002 figures right).

    KMS> My objection is this:

    KMS> The H-1B system creates a caste of workers with reduced
    KMS> rights and mobility.  

Indeed.  I'd be very interested in seeing a program that grants full
rights to _temporary_ workers.  This is just an instance of the more
general problem of importing labor at time of real or percieved labor 
shortages.  Germany suffers from this also.  We suffer from this here
in Turkey _without_ any explicit labor import program but due to
rather lax entry rules and poor ex-communist neighbours.   

    KMS> They are beholden to their sponsoring
    KMS> companies, hence "indentured servants".  

Under certain conditions.  The newer laws and the INS regulations
changes this picture somewhat.  H-1b is now 'portable'  that is an
H-1b holder _can_, with minimal fuss, switch jobs.  Indentured
servitude comes into the picture only when permanent residency is 
pursued based on employment.  Now there's a second issue
misrepresented as 'indentured servitute' and that is H-1b's do not
want to leave the US and therefore will allow themselves to be abused 
and seek H-1b positions when they lose their jobs.  H-1b portability,
which should prevent real indentured servitude, actually helps these
people stay in the country.  But this is a mere manifestation of
standard of living disparity between he H-1b's home country and the

    KMS> Their residency status is lost
    KMS> when their employment ends.

Or when the 6 year time limit is reached without there being a green
card process in progress. 

    KMS> H-1Bs are in a similar situation in the technical sector.
    KMS> Simply: H-1Bs don't have the rights of workers with full
    KMS> citizenship or residency status.  The program cuts against
    KMS> *both* the H-1Bs and established local workers.

Indeed, but that's a general problem with immigration and migrant 
labor as you indicate.  But:

    KMS> I'd have no problem with a program that would liberalize
    KMS> emigration rules to allow for more workers with specific
    KMS> skills to be granted level-basis access to US employment
    KMS> markets.  

How?  Would you be happy to see stricter prevailing wage calculations?
Stricter control of the actual recruitment efforts by the hiring
company?  Both are available for the green card process and the thing
takes more than a year if you are lucky more like 2+ if you are not.
I have gone through Matloff's suggestions and find some of them
ludicrous.  Especially:

-- Requiring EB-1/NIW kind of talent:  Surely he's being disingenuous,
this program exists right now!  

-- Reducing the H1-b quota: as you indicate, the market has taken care
of that.  The quota has not been reached in 2002.

-- Regulation for overtime: this is uneforcable especially with remote
work.  He's confounding several things and inviting government
regulation and meddling to create a situation where start-ups will be 

I agree that the prevailing wage calculations and the good faith
effort by employers to hire locals can be further checked.  This need
not be a matter of post-facto audits any more -- one could cook up a
scheme where people who are on unemployment can announce their skills
and availability in a centralized database.  The LCA process can
surely hit that database.  I am surprised nobody tried to sell this to
the government so far.

At the present time, the H-1b program, flawed as it might be, is
no worse than marriage-based immigration or the diversity lottery
which allows 50k people into this country w/o requiring anything more
than a high school diploma.  H-1b's are only there for a maximum of two
installments of 3 years unless they start the green card process at
the end of their third year.  There might be a glut right now due to
high admission rates in recent years, but the massive flow has stopped
(as evidenced by the figures you quote) and these folks will have to 
go back if the economy does not improve.  I'd watch the figures for
2003 and 2004 before concluding there's a real crisis.  Remember, for
every H-1b you punt, you get to keep at least the unemployment
insurance premiums they paid.

    KMS> The truth is that H-1Bs have found themselves cut
    KMS> off in the dot-com bust, in a society which treats
    KMS> undocumented immigrants as potential terrorists.  The system
    KMS> isn't fair for *either* citizens/residents, or H-1Bs.

H-1b's know what they are getting themselves into.  The problem is
that the citizens do not know the immigration/temp worker policies 
of their government.  As far as *fair* goes, I don't know how one
would know what's fair.  If the assumption is that the US is a
desirable place to be and enough so for people do not terribly mind
getting mistreated and being second-class for at least a generation,
there really is very little you can do short of having a police state 
to control this.  You make things tighter, and only people who are
coming from much worse places will stay -- others will just take off.
If things are looser, you'll get the good along with the unskilled and
the bad-intentioned.  

    KMS> The truth is that emigration in this country is pretty fucked
    KMS> up from any perspective.  I've had good friends -- British,
    KMS> Korean, Indian, Mexican -- with serious problems getting and
    KMS> maintaining residency or visa status.  

Indeed.  Especially on the green card track, it can take years and you
are in limbo.  Even Linus complained about this.  What I find somewhat
amazing is that all these sites are purporting to be for fairness to
H-1b's when in fact a process where the H-1b holder is not in limbo
would mean that all the H-1b's who were happily there during the boom
would now be getting unemployment benefits and have permanent
residency instead of going back!  

    KMS> The system takes years
    KMS> to work, loses data, and treats the applicant as a criminal,
    KMS> often when the INS is the agency at fault.  

Indeed so.  But this is not a national priority there.  You'd be
surprised how many citizens think that you can get premanent 
status by filling out a form at the post office once you are in the US
(I am talking about places that do not have large non-citizen

    KMS> Post September
    KMS> 11, of course, the climate has changed markedly.  Even in the
    KMS> best of times, there's a political battle between business
    KMS> (which wants a large, cheap labor supply) and nationalists
    KMS> (who don't want "population dilution") leading to conflicting
    KMS> interests in immigration.  

I think you are further hamstrung by neither group being able to state
their motivations clearly as in wanting cheap labor and a white 
English-speaking population.  You cannot get white English-speakers to
pick your lettuce and wash the dishes or be Java monkeys 18 hrs a day,
but since you want to see yourselves as basically 'fair' you end up in
a situation where the rights of the very people you want to exclude are
also ostensibly figured in.  

    KMS> I also know many people who've come to the US on H-1B visas,
    KMS> some of whom are working, some of whom are fugitives in a
    KMS> hostile land to which they're no longer welcome.  This rips
    KMS> their lives apart as well.

Well, they are in a country that claims to be at war carrying papers
that clearly stated their status was temporary.  Sure it rips their
lives apart, but I don't see how it could have been prevented.  I can
understand people who grew up in the US erroneusly believing they have
some birthright to a reasonable standard of living, but as someone who
has uprooted himself several times I can tell you that _we_ have no
reason to believe that neither the governments nor the economy will
always be fair and give rise to situations that are to our liking.

    KMS> My objection to the system is that it's not fair to two sets
    KMS> of workers: citizens and residents, on the one hand, and the
    KMS> H-1B visa workers on the other.  And the system pits these
    KMS> two groups against one another when the real complaint is
    KMS> against business and political interests which have
    KMS> misrepresented the situation to their own gain.  [...]

I disagree.  The real culprit is the ailing economy world-wide and
disparities in standards of living between countries.  That some
semi-flawed government regulation enables the local unemployed to find a
category of workers to label as unfair competition is just one of the
manifestations of the imperfections in the world.  



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