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Barking Up The Wrong Tree (Continued) July 20, 2015 matloff

Some of you readers may have heard of Virgil Bierschwale, a veteran programmer (twice over, as you’ll see) who has long been out of work. He believes, with considerable reason, that Congress has stacked the deck against people like him with its H-1B work visa policies, and he doesn’t mince words on his blog.

Virgil is probably the type the industry lobbyists love to conjure up in the minds of the press and Congress, an older white male, navy vet, likely conservative in his politics. The lobbyists probably want people to add to that image with traits such as xenophobia, complacency (leading to technological obsolescence) and so on. I doubt that Virgil is like that, but it is certain that the lobbyists want people to think, “Well, poor guy, but no wonder he got replaced by an H-1B, and maybe he deserved it.”

Except that he didn’t get replaced by an H-1B. Yes, he is unemployed, and yes he believes that the H-1B program is a major factor. But Virgil has never been REPLACED by an H-1B. He does believe that H-1Bs are being hired INSTEAD OF himself. And not only that, he knows a number of other software developers, including a former H-1B, who are in the same situation — years of valuable experience, yet can’t get a job in spite of seeing lots of foreign workers being hired.

I don’t know Virgil well enough to speak to his technical acumen, and it’s certainly possible that there are multiple causes for his difficulties in finding work. But I do know a number of techies whose technical skills I know to be first-rate and whom I know to have all the needed “soft skills,” but who have really struggled in the job market. And in all these cases, it is clear to me that employers are hiring H-1Bs INSTEAD OF these Americans — and NOT using the H-1B program to REPLACE Americans.

Those readers who know this blog especially well have probably guessed by now that my theme in this post will be a frequent one of mine, the counterproductive focus in the H-1B debate on the IT services firms such as Infosys, and the concommitant, incorrect view that firms like Intel use the visa responsibly. I’d been meaning to write about Virgil for a while, but today I saw a Computerworld article that caused me to realize that he is a perfect example of my point, which is that most American victims of the H-1B program are more like Virgil than they are like those who were laid off by SCE and Disney and replaced by H-1Bs.

I don’t mean that most of the victims are white, male navy vets like Virgil. No, what they share with Virgil is that employers hire H-1Bs INSTEAD OF them rather than REPLACING them by the foreign workers. Yet the H-1B debate has devolved almost solely to concern over the SCE/Disney replacement scenario.

As I have warned repeatedly, this focus is not only inaccurate (again, most victims are like Virgil, who has never been replaced by an H-1B) but also destructive, as it will likely lead in the end to legislation which “solves” the problem by clamping down on the Infosyses while rewarding the Intels with an increased H-1B cap.

We’re seeing this more and more, with politicians promising to prevent replacement-by-H-1Bs. For  example, I reported recently that the California state legislature is upset about the SCE incident, but their solution is simply to ban the utilities from using “indirectly hired” workers, meaning supplied by the Infosyses. This exhibits complete ignorance of the problem; as I’ve explained, if Congress increases the H-1B cap and otherwise liberalizes foreign tech worker programs, SCE will have no trouble getting as much cheap labor as they want, without going through the Infosyses.

The Computerworld piece is quite interesting in illustrating the fact that the Obama administration’s actions on H-1B, if there will be any at all, will deal only with the replacement-by-H-1Bs problem. The administration will continue to push for an INCREASE in H-1B and other foreign tech worker programs, falsely extolling them as vital to keeping the U.S. in its world-dominant position on the technology stage.

In the article, Professor Ron Hira contends that the administration could solve the replacement problem by executive action, in contrast to the administration claim that only Congress can do this. Ron cites the wording in the H-1B statute that bans the hiring of H-1Bs if it would “harm the wages and working conditions” of the American workers.

Though I think this narrow focus is the wrong way to go, it is worth discussing. If the administration is not even willing to attack the narrow problem, prospects for solving the broader one are grim indeed.

Clearly Obama has been happy to bypass Congress on immigration issues, by issuing his own executive orders of questionable legality. But if he wants to take refuge in legalities, I believe that legally he is off the hook in terms of Ron’s idea.

John Miano has pointed out that by delineating special circumstances in which employers are banned from replacing Americans by H-1Bs, Congress has, legally speaking, expressed its intention that in all other settings such replacement is just fine. I would add that similarly, by setting a four-tier rule for wage floors for H-1Bs, broken down by four levels of experience, Congress has given its blessing to employers who hire younger H-1Bs instead of “Virgils.” So the clause in the statute regarding harm to American wages arguably applies just to Americans of a given experience level. Hiring young H-1Bs in lieu of older Americans is thus no violation, and as I’ve noted in the past, this is the main factor behind the legally-compliant actions by SCE and Disney too, as well as the Intels.

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