Lofgren Bill a big Step Backward

You can find (an outline) of the text of the bill at

http://www.scribd.com/doc/57879978/IDEA-ACT

As usual, "the devil is in the details," but even from the vague descriptions in the outline, it's clear where the bill is going. And the details are probably even worse.

I've been writing for a while now that the thinking in DC (and, unfortunately, among some H-1B reform activist) is that the mainstream American firms (to be referred here as the "Intels") are the Good Guys while the Indian bodyshop firms (the "Infosyses") are the Bad Guys. In other words, the Infosyses abuse the H-1B system while the Intels are using it responsibly, so the argument goes.

Sen. Schumer put this thinking into action last year in a bill that the Indian firms felt targeted them, in a punitive manner. I sided with the Indian firms:

http://heather.cs.ucdavis.edu/Archive/SchumerScapegoat.txt
http://heather.cs.ucdavis.edu/Archive/SchumerScapegoat2.txt

Among other things, I wrote that I'd perviously "shown the irresponsible behavior in foreign labor programs of Microsoft, Cisco, the Bank of America etc." It's not a Good Guy/Bad Guy dichotomy at all; basically, H-1B and employer-sponsored green cards are abused across the board.

Some readers here will recall the notorious Cisco case, for instance, in which an American network engineer responded to a Cisco Job Ad. The Person the ad directed applicants to turned out to be clerk in an immigration law firm (Fragomen, the nation's largest), no Cisco HR. The point was apparently to screen OUT the American applicants, as Cisco was sponsoring a foreign worker for green card. There was then a DOL investigation, which of course found that Fragomen had done nothing illegal. (This wasn't corruption in DOL, but rather just a reflection one again of the huge loopholes in the law and regulations.)

My point, again, is that the Intels are just as culpable as the Infosyses.

I've been predicting that more and more legislation, though, would have this Good Guy/Bad Guy theme, and Lofgren's bill in particular has this trait. It acutally creates a formal Good Guy category, named "Established U.S. Recruiter." The bill would put such firms on a fast track, subject to fewer rules. It's clear from the definition (Sec. 301) that this category is the Intels category, with the implication that the Infosyses are the ones who need rules.

So, here is the first sense in which the Lofgren bill would be a major step backward: The loopholes in the system are already bad enough as it is, but with Lofgren there would in effect be even more loopholes for the Intels to use. And the Infosyses would essentially be able to do business as usual.

Sec. 301 concerns Labor Certificaiton, the process under which employers who sponsor foreign workers for green cards must show that no Americans where qualified for the job. Under the current policy, the term used is "minimally qualified, which Lofgren would change to the more stringent "equally qualified." See http://www.hooyou.com/shperm_teach/shp_more-reqmts.html . While this might at first seem reasonable to nontechies, the problem is that even under the current policy employers define "minimally qualified" to carry so many conditions that the foreign worker in question is the only one who meets the requirements. If the employer does this in too transparent a manner, the DOL will object, but it can be done subtlely. With Lofgren, employers and their immigration lawyers would find it even easier to do this. Thus, another step backward.

As many of you know, the H-1B visa, unless green cards, does not have any requirement to give U.S. citizens and permanent residents hiring priority. Lofgren's bill claims to add such a requirement, but inspection of the provision reveals that it would wind up applying largely to the Infosyses, very similar to what those employers go through today as H-1B dependent employers. So, not a step backward, but pretty much the status quo in terms of actual impact.

The Orwellian-named Title IV, Protecting American Workers, may be the most misleading part of the bill, particularly Sec.401, Strengthening the Prevailing Wage System to Protect American Workers. The current four-level prevailing wage system would become a three-level system under the bill. (Note by the way that the prevailing wage requirement is the same for both H-1B and green cards.)

Again, this is aimed at the Infosyses. Granted, they do currently make more use of Level I than the Intels do, but that is becuase the Intels tend to hire more people with Master's degrees. But the Intels underpay Master's people just like the Infosyses underpay Bachelor's degree holders. So, reducing the number of prevailing wage levels to three does not in itself prevent abuse.

But even more interesting is the way Lofgren defines her new three levels. Her bill states that the current Level I is defined to be the mean of the bottom 1/3 of wages; she wants the new Level I to make that mean of the bottom 2/3.

Accutally, existing policy does NOT define the levels by position in the statistical distribution of wages. Instead, the definitions are in terms of degree of responsibility that the job entails.