Communications Workers of America

• By: lvanderwoude
• April 10, 2015

April 10, 2015 matloff

Sometimes I receive so much mail about a certain topic that I feel compelled to write about it, even though I had not been planning to do so. Such is the case with a letter sent by 10 senators to Attorney General Eric Holder and other top officials, raising questions about the legality of Southern California Edison’s recent replacement of American IT workers by foreign workers.

The letter essentially asks whether SCE, and the Indian IT services firms, TCS and Infosys, that provided the workers, dotted all their i’s and crossed all their t’s. The answer is almost certainly Yes — SCE is a huge company with lots of careful lawyers. For instance, the letter asks whether TCS and Infosys are maintaining an employer relationship with the workers sent to SCE, as required by law and regulations. They are almost certainly doing so, assuming the plan, as typical, is to use the onsite foreign workers to serve as liaisons to offshore workers.

So, one must ask what the point of the letter is. I don’t see any point, which is why I originally had not planned to write about it. Perhaps the point lies in the closing sentence of the letter, which asks the recipients to notify the senders as to any “obstacles in existing law” to preventing abuse such as that in the SCE case. But does the Senate really need “permission” from the Executive Branch to fix the problems with current law?

To me, the only interesting aspect of the letter is who did NOT sign it. As pointed out in a Computerworld article, neither California senator was a signatore. A few years ago, a top aide to Senator Barbara Boxer told me that Boxer would never support any legislation that tightened up any aspect of immigration policy whatsoever, but I am somewhat surprised to see that Senator Feinstein didn’t participate in this very innocuous letter. Even more interesting is that the two most strident senators in expanding H-1B, Hatch and Schumer, didn’t agree to sign what, again, is what we in CS call a “no-op” (a placeholder machine instruction that does nothing).

As I have been warning for so long, there is far too much attention paid to the IT services firms, who provide H-1B and L-1 workers to mainstream firms. Why is it that people think it’s fine for an employer to hire a foreign worker directly but terrible for the same employer to hire a foreign worker through an agent?

And for that matter, why is overtly REPLACING Americans by foreign workers any worse than hiring foreign workers INSTEAD OF Americans? For example, does anyone really think that none of the 18,000 Americans laid off by Microsoft could have done the Microsoft jobs being filled by H-1Bs (and OPTs, etc.)?

Senators, please step up to the plate! Trying to tweak the H-1B program around the edges will only result in some kind of Rube Goldberg-style mechanisms that don’t work. As I explained in a recent post, what really enabled the hiring of H-1Bs to work at SCE was the four-tier system of determining prevailing wage, which makes young workers cheap. The ability to hire cheap young H-1Bs in lieu of older Americans is CENTRAL to the attractiveness of the program to employers, and to their ability to abuse it. Changing prevailing wage to a single number, an overall mean wage rather than four wage levels tied to experience, would have prevented the SCE fiasco in a very simple, direct manner.

And senators, if you do want to stop the abuse (a big “if”), such reforms need to be applied across the board, to ALL hiring of foreign workers. Don’t enact legislation that targets only the IT services firms, and don’t create H-1B workaround programs such as fast-track green cards for foreign students. Don’t create an “out of the frying pan and into the fire” situation for American STEM workers.

All this presumes that those senators have a genuine desire to protect American workers, which is questionable. Senator Sessions, in announcing the letter, noted that “There is no ‘shortage’ of talented Americans, only a shortage of officials willing to protect them.” Senators Sessions and Grassley are the only ones I can see with such a will, sad to say.