The Facts On H-1B Visas

At the Center for Immigration Studies’ web site, John Siano explains what the H-1B visa is really all about:

The first step in the H-1B process is for the employer to file a labor condition application (LCA). That is where the employer certifies the prevailing wage, the wage to be paid to the H-1B worker, and to other labor protection provisions. Notice that the employer determines what the prevailing wage is.

And it gets even better. 8 U.S.C. § 1182(n)(1) requires the Department of Labor to approve all LCAs within seven days as long as the form is filled out correctly. The employer can put anything down on the LCA and know that it will be approved. 8 U.S.C. §1182(n)(2)(G)(v) prohibits the Department of Labor from going back and reviewing LCAs later. The whole LCA system is a meaningless paper shuffling exercise. …

The first problem in the system is that the employer determines the prevailing wage and the employer can use nearly any source for that determination. Prior to 2005, employers used this combined with the restrictions on enforcement to pay H-1B workers low wages. However, in 2004 Congress explicitly changed the law to allow employers to pay H-1B workers absurdly low wages.

Pettifoggers will tell you that H-1B workers are required to be paid the higher of the prevailing wage or the wage paid to similar workers. And golly gee willikers, it says just that right at the top of 8 U.S.C. § 1101(n)(1). That’s enough information for the willful ignorami writing the Wall Street Journal editorial page.

But scroll down to 8 U.S.C. § 1101(p)(4). There you will find that the Department of Labor is required to take an existing wage survey and divide it into four skill level prevailing wages. Notice there is no requirement that the employer pay the H-1B worker at his skill level. Even if there were such a requirement, it would be unenforceable because skill is a subjective measure.

Under this system, employers classify:

* 52 percent of H-1B workers at the lowest skill level, where they command a wage at the 17th percentile for the occupation and location.

* 30 percent at the next lowest skill level, where they command a wage at the 34th percentile.

* 12 percent at the next skill level, where they command the median (or actual prevailing wage).

* 6 percent at the highest skill level, where they command a wage at the 67th percentile.

Notice that H-1B workers are “highly skilled” when industry wants more of them, but those very same workers become low-skilled when determining what they have to be paid. …

For example, in Silicon Valley the prevailing wage for a programmer is $93,891. However, an employer can legally pay an H-1B worker $57,179. An employer can save $36,000 a year by going H-1B. It is no wonder that H-1B workers are concentrated in high-wage locations of the country. …

Replacing Americans with H-1B workers has been going on at least since 1994.

In 1998, Congress responded explicitly by making it legal for employers to replace Americans with H-1B workers. Under the current law an employer may replace an American with an H-1B worker unless:

1. The H-1B worker is paid less than $60,000; and

2. The H-1B worker does not have a graduate degree; and

3. The employer has more than 15 percent of its total employees on H-1B visas earning less than $60,000 and not having graduate degrees; and

4. The replacement takes place within 90 days of making the visa petition.
Most visa petitions are filed in April for visas starting with the federal fiscal year in October, so these provisions protect no one. Congress has gone through a lot of effort to ensure that employers can replace Americans. …

The H-1B program is designed to give the shaft to both Americans and H-1B workers. The same bill authorized employers to include charges for “liquidated damages” in employment agreements, to be paid if an H-1B worker quits. An H-1B worker can end up having to pay his employer $10,000 or more if he wants to change jobs.

I am happy to see that Siano and Michelle Malkin have a book on H-1B visas coming out later this year.