Some of you will recall the following passage from my op-ed in the Washington Post a few days ago:
As immigration attorney Joel Stewart notes, "Employers who favor
aliens have an arsenal of legal means to reject all U.S. workers who
This was from an article Mr. Stewart posted at www.ilw.com , a legal-resource center for immigration attorneys and immigrant applicants. Stewart and some other immigration attorneys have posted reactions (negative, of course) on that same site and its e-mailed newsletter Immigration Daily.
Of course, these people have vested financial interests, but still I always consider myself an educator, and I am cc-ing this to the Immigration Daily editor, requesting that it be posted as a letter to the editor there.
(Actually, in fairness I should mention that I was invited by the editor, Arthur Zabenko, a couple of weeks ago to post an article there. I have not done so, but plan to send him the Frequently Asked Questions section of my congressional testimony.)
The H-1B/age discrimination issue is highly complex, with my updated congressional testimony (http://heather.cs.ucdavis.edu/itaa.html, updated once or twice a month) now being 97 pages in length. Clearly that does not reduce well to an 800-word op-ed piece. Unfortunately, very few editors will allow the author to put a Web URL into his/her squib at the end of the op-ed (“Dr. Matloff is a professor of...”), which would enable readers to read the details.
So, what do Stewart, et al., say?
Well, first the editor says that I got it wrong, that Stewart was talking about the green card process, not the H-1B itself. This is rather silly. Though I did juxtapose my quote of Stewart with a comment on the fact that the H-1B prevailing-wage rule is riddled with loopholes, clearly Stewart's comment (see above) is not about wages, so what it is the big deal? The point is that the entire H-1B/green card process (elsewhere in my piece I refer to the fact that they are related, since most H-1Bs want their employer to sponsor them for a green card) is riddled with loopholes, from start to finish.
Then there is a letter by one Therese Stewart. She takes me to task for not enumerating the H-1B loopholes, there in my short 800-word op-ed piece. The fact is that I devote an entire section of my congressional testimony to this issue, Sec. 9.2.5. Here is an excerpt, describing one of the most powerful loopholes:
Even if an H-1B employer pays a prevailing wage determined by a
government survey, that wage will usually be lower than the market
rate for the job's skill requirement, as follows. As explained
earlier, the only programmers who are enjoying large increases in
salary as those with ``hot'' skills, say Java. H-1Bs are brought to
this country ostensibly for those skills. Yet an employer need only
pay the prevailing wage for programmers in general, rather than the
prevailing wage for, say, Java programmers. Thus the employer gets a
Java programmer for the price of a generic programmer--all while
technically complying with the prevailing-wage requirement of the law.
As noted by immigration attorney Donna Fujioka of Oakland, California
(interview with the author, March 5, 1998),
[The prevailing wage law] takes a meat axe approach...It doesn't
appreciate how hot a skill is [such as SAP]...This is great if you
are an attorney representing an SAP programmer.
(By the way, I have repeatedly called up the Dept. of Labor to require that “hot skills” be factored into prevailing-wage calculations, which certainly would be within the law they are charged to implement, but they are unwilling to do so.)
Ms. Stewart also points out that prevailing-wage data depend on the region, and thus questions my claim that the womenConnect.com and Ecutel salaries are lower than average. But in fact salaries for the region of interest in these two cases, Virginia, are indeed around the national average (see www.datamasters.com). Moreover, Susan deFife, womenConnect.com's CEO, e-mailed me a few months ago, confirming that the salary she was paying the H-1B was low.
(She tried to justify it by saying that her company offered stock options and flex time, but of course that means nothing, since most high-tech employers do the same thing. She also talked about how hard it was to operate on the thin funding she had---the implicit message being that she was somehow justified in underpaying the H-1B---and in fact her firm did fold a couple of weeks ago.)
And if Ms. Stewart wants a more dramatic example based on region, just last week we discovered that Northwest Software was paying many H-1B programmers $32K, $38K and $40K in Santa Clara and Mountain View. Those are in Silicon Valley, folks, one of the highest-cost-of-living areas in the country, and salaries for new computer science graduates are well into the $50K range.
Next, we have the letter from Joel Stewart himself. He too uses the “I said you can legally cheat on green cards, not on H-1Bs” defense, which I suppose only a lawyer can say with a straight face.
He then says my claim in my op-ed piece that high-tech employers are inundated with resumes is “patently untrue.” Well, if so then I guess Mr. Stewart must know as many loopholes in patent law as he knows in immigration law. What does he think, that I just made those numbers up? They come from statements, mostly publicly available, from the employers themselves. All the cites are in my congressional testimony.
Stewart also refers to the indentured-servant nature of the H-1Bs as “fanciful hyperbole.” But this is the language the H-1Bs themselves use (www.isn.org), and it is notable that Stewart did not deny my analysis, i.e. that the H-1Bs are essentially immobile during the green card process, which now typically lasts 5+ years.
I wonder what Stewart would have said to the following excerpt from my original manuscript for the op-ed, which apparently was cut for space reasons:
Workforce Magazine, a publication for Human Resources officers,
gushes that “[one of the] good things about H-1Bs...[is that they]
cannot jump ship." Immigration attorney Sherry Neal has also pitched
the H-1Bs as being “loyal...not mobile.”
Was Stewart's fellow immigration attorney Neal also engaging in “fanciful hyperbole”?
Finally we have the Spitzberg letter. He says that I don't support my arguments with “hard data from public sources.” Well, I certainly had some hard data in my op-ed, and most of it is in fact from public sources. No, I didn't give the citations there---one normally doesn't have footnotes and bibliographies in an op-ed---but they are all in my congressional testimony.