Gang of 8's Immigration Reforms Will Give Bureaucrats New Powers to Harass Employers

Under the guise of protecting American workers, it'll make the H-1B program unusable.


Immigration reform might not be able to fix every shortcoming of U.S. policy. But it at least shouldn't make matters worse.

That, unfortunately, is exactly what it will do if the bipartisan "Gang of 8" senators' proposal to change the high-skilled visa program is included in the final legislation — and that too in the name of protecting American jobs. Nevermind that the only jobs protected will be those of labor bureaucrats.

The technology industry has a hard time obtaining work permits, called H-1B visas, for foreign workers because the low annual cap on these visas is filled within the first few weeks of the year. This forces companies that don't win the visa lottery to wait another year to try again.

Furthermore, foreign nationals who get an H-1B sometimes have to wait decades to gain permanent residency or green cards because of backlogs created by the low cap and limits on numbers from individual countries. During this time, their lives are on hold. Their spouses can't work. They can't change jobs in the same company, much less move to a new one, without having to begin the process again. With no certainty that their green-card quest will ultimately succeed, many of them forgo buying homes or otherwise putting down roots in the U.S.

The proposed measure would raise the base H-1B visa cap from 65,000 to 110,000 immediately and up to 180,000 subsequently. It would also offer 25,000 visas, up from 20,000, to foreign students who graduate from U.S. universities in science, technology, engineering and mathematics fields.

More significantly, these graduates would no longer be subject to the green-card cap and, if they wanted, could get the green card without first having to obtain an H-1B. This would relieve the backlog somewhat and cut wait times for all technology applicants.

Although the changes aren't adequate, they would have represented progress had the Gang of 8's plan left it at that. In exchange for these fixes, however, the measure would hand the Labor Department sweeping new powers over employers to ensure that they don't replace Americans with foreign nationals.

Since 1998, "H-1B dependent" employers — those with 15 percent or more of their workforce on H-1Bs — have had to attest that they are hiring foreign nationals only after making a good-faith effort to recruit qualified Americans. This includes advertising through channels prescribed by the Labor Department and interviewing a requisite number of candidates.

The employers must also be prepared to justify the discharge of any American worker 90 days before or after hiring an H-1B employee. They have to demonstrate either that the employee's departure was voluntary or caused by poor performance or unacceptable behavior. A company that is found to be willfully violating the law can be barred for three years from hiring foreign workers and slapped with thousands of dollars in fines.

Instead of freeing companies from such mandates, the Gang of 8's plan would impose them on every company that hires even a single H-1B visa holder.

It gets worse.

Currently, the Labor Department can start investigations to ensure that companies aren't firing Americans to hire foreign nationals. To do so, however, officials have to receive a complaint from an aggrieved party who is willing to go on the record. Or there has to be evidence of violations that the labor secretary has scrutinized and certified as credible.

Under the proposed changes, anyone — even an anonymous tipster — could set off an investigation. In addition, the secretary would no longer be required to certify the evidence  the administrative equivalent of showing probable cause and obtaining a court warrant.

Any Labor Department bureaucrat who decided, for whatever reason, to investigate a company — after, say, reading a newspaper article or relying on hearsay — could certify his own evidence and proceed as he sees fit, according to Stuart Anderson of the National Foundation for American Policy, a research organization that studies immigration issues.

"Basically, Labor Department investigators will get unchecked powers to launch fishing expeditions of companies," he says.

As if the prospect of losing control over personnel decisions and inviting intrusive federal scrutiny isn't enough to render the H-1B program useless, the Gang of 8's proposal goes further. Under current law, employers must pay foreigners the same wages as American workers. But the senators, including Democrat Dick Durbin of Illinois and Republican Lindsey Graham of South Carolina, want to require that foreign nationals be paid "significantly more."

How much more? Essentially, the proposed reforms would eliminate the first tier of the four-tier formula that is currently used to calculate prevailing wages in an industry, Anderson says. This would mean that employers would have to pay foreign nationals who are just out of college the same wage as an American with several years of experience in the company. Anderson estimates that this could add up to $10,000 to $18,000 more for every H-1B hired.

Supporters of this formula say it would protect American workers from being replaced by younger foreign counterparts. In reality, it is aimed at pricing foreigners out of the labor market. Legally requiring foreigners to be paid more will also hand restrictionists potent new ammunition to whip-up anti-immigrant sentiment and further poison the reform debate.

More to the point, such labor protectionism will backfire. If the U.S. technology industry is forced to pay a premium for talent as well as open itself to government harassment, it will be more tempted to outsource operations to friendlier climes, hardly a recipe for job creation.

The proposed H-1B "reforms" will help neither workers — American or foreign — nor companies. The only winners will be labor bureaucrats who'll get new powers of harrasment. They deserve no place in the final law.

A version of this column appeared in Bloomberg View.


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  1. This includes advertising through channels prescribed by the Labor Department and interviewing a requisite number of candidates.

    And what this means, at least for fields with which I am familiar, is advertising in print media, not in online job sites. Of course, in the liberal arts there are no print media that advertise jobs (except the Chronicle of Higher Ed, but nobody looks for faculty jobs there, and it’s very expensive). All contemporary faculty positions are entirely advertised online.
    But the Department of Labor doesn’t know that, and, in at least in a few cases I know about, made universities re-advertise searches in the Chronicle (MLA and Linguistic Society don’t have paper job listings any more).
    Stupid? Of course. It’s what the government does…

    1. Start working at home with Google! It’s by-far the best job Ive had. Last Tuesday I bought a gorgeous Lancia Straton from earning $4331 this – 5 weeks past. I began this 7-months ago and right away started to earn at least $69, per-hr. I use this website,,

  2. Air India is ready when you are Dalmia. Go back home and destroy your own nation, leave mine alone.

    1. I didn’t realize this article was about whatever European nation(s) your ancestors were from

      1. Who said anything about Europe?

        1. Do I really need to spell this out for you?

          1. Before jumping down a rabbit hole on assumptions, I’d actually like to hear it.

    2. Obviously she already is, since you live under a bridge somewhere and the tolls have been pretty scant lately.

    3. I don’t care where it happens, bigotry is bigotry, even here on Reason.

  3. Gang of 8’s Immigration Reforms Will Give Bureaucrats New Powers to Harass Employers

    I’m absolutely shocked.

    1. “I’m beating you for your own benefit.”

  4. So this mean Shikha is now taking a stand against the proposed immigration reform bill?

    1. Just because Reason is in favor of the concept of immigration reform and open borders doesn’t mean they all will reflexively support any reform bill or all the parts of such a bill. Don’t know why so many people here think that

      1. The tacit support for Bush’s comprehensive immigration reform.

        1. Bzzzt. That’s the wrong answer.

          The correct answer is: The much more vehement disagreement with Bush’s comprehensive immigration reform.

          Which was significantly worse than the present attempt, as bad as it is.

        2. Here’s an example of a comment of mine during that halcyon debate…

          I have read this thread. I do not recall a single person on it who actually advocated the bill being considered in the Senate.

          If you think the existence of this bill is proof that open borders are bad, I have no clue how you came to that conclusion.

          If instead you are seeking to convince people to actively oppose this bill, then you need to learn a little diplomacy.

          Try something like this:

          I know its fun to debate unrealistic issues like whether open borders are good or bad. But there is a serious and real issue right now with this crap they are calling immigration reform. It will make things much worse than they are today. Here’s an extensive excerpt from an article that I hope gets you to call your senator!

          See? Like that.

      2. I got the impression Reason generally supported the current immigration reform proposals from all of the articles and references, particularly from Gillespie, about how much they support the current immigration reform proposals.

        Employer burdens? Who cares! Pedro Gonzalez de Jesus will be able to get legal status now! Immigration is solved!

        Nevermind that Pedro’s lack of legal status is the only important differentiating characteristic to his employer, and that without it his utility is gone. I mean, it’s not like byzantine labor regulations and price controls create a system of sick incentives that lead to a black market in labor or anything. No, Pedro can get his green card and start imposing $40 an hour in labor costs on his employer doing an $8 an hour job, just like his American cohorts. Problem solved. Don’t think so? Well, fuck you, you xenophobic racist cunt! Why do you hate brown people? Why?

  5. It seems that anything given the title “Gang of…” is bad, mm’kay?

  6. I guess the Gang of Eight is so named because they’re twice as bad as the Gang of Four?

  7. “Immigration reform might not be able to fix every shortcoming of U.S. policy. But it at least shouldn’t make matters worse.”

    Astonishingly na?ve sentiment from a libertarian magazine. And in what world would libertarians expect an immigration reform that will reduce the power of bureaucracy?

    1. Note the use of the word “shouldn’t.” Are you trying to become the next SIV?

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  9. Shikha has no idea what the hell she is talking about. There is absolutely no requirement for companies to try and get American workers for these job, the certification is a joke. A company merely has to fill out a form and tadaa! they have suddenly certified that no American in their right mind would take the job for the pennies that the company want’s to pay.

    This bill would go a long way to putting accountability into the H1/L1 program and force companies to actually try and hire American workers, and if none were found they would have to pay real market wages to their foreign employees.

    That has been the problem with this program from the beginning, it used for essentially indentured servitude. Companies have been allowed for too long to lie about the so-called talent shortage. There is no talent shortage when we have a real unemployment/underemployment rate of 16-20%.

    1. That has been the problem with this program from the beginning, it used for essentially indentured servitude.

      The reason they can use it as indentured servitude is that their legal status in the country is based on their employers’ whims. If we gave them some flexibility to change jobs it would be fine.

      There is no talent shortage when we have a real unemployment/underemployment rate of 16-20%.

      The “talent” shortage is not for women’s studies and literature majors.

      1. Actually, if you’re talking about no-skilled manual labor, that’s the only thing they’re qualified for.

    2. Companies shouldn’t have to justify to the government who they hire in the first place. No one has the right to a specific job or a specific wage

      1. Companies shouldn’t have to justify to the government who they hire in the first place.

        No one has the right to a specific job or a specific wage

        And no company has the right to write immigration law. So long as the company can find someone within the available pool to undercut them, you are correct. But we’re talking about changing the labor dynamics within local and regional economies through disadvantaging domestic talent ironically enough through importing disadvantaged people.

        1. What you call “irony” others call “not abrogating preexisting individual rights”.

          1. And dare I ask by whom these rights were granted?

            I’m guessing it’s a higher power of some sort or simply a belief that it’s axiomatic. This utopian future is only something we can work toward. It’s unlikely to be completed in our lifetime. Why isn’t it a risk that as you drive the “developed” nations toward hoarding talent, you simultaneously starve the others of their talent? Much of the hoarded talent goes to waste as there becomes diminished impetus to pursue its potential. Meanwhile the less developed languish in lack of talent.

            It’s kind of Orwellian, but the only clear cut winners in this scenario seem to be the same as the current reasons behind existing policy: Corporations.

        2. But we’re talking about changing the labor dynamics within local and regional economies through disadvantaging domestic talent ironically enough through importing disadvantaged people.

          Incidentally, exactly what moral calculus are you using to value potentially disadvantaged domestic talent so much higher than imported already disadvantaged people?

          If the domestic talent sees his standard of living fall by 3% while the imported person sees his standard of living increase by 200%, would that make you reconsider the blatant violations of liberty represented by such laws?

          1. I consider these things more often than I imagine you might think I do. But where does Robin Hood’s line get drawn? Is anyone in the US subject to displacement on two weeks’ notice as soon as someone else can be imported? What happens to the next round of disadvantaged when the country without borders saw its existing people avoid innovative fields? And why would it be so wrong for the import to see a 240% increase without decreasing the domestic’s standard of living?

            1. Robin Hood’s line gets drawn at the point where government stops securing rights and starts abrogating them — say by prohibiting the travel, residence, or employment of one class of person in order to protect the station of another class of person.

              1. The laws in question here are those of a government of a nation. That government’s “people” are its citizens and to some extent the others it has granted exception to–not the planet. By securing the planet’s rights it may well be abrogating its people’s rights. And it’s doing so to protect corporations.

                Make no mistake that the primary beneficiaries of and drivers behind skilled immigration policy have been corporations. Any benefit to world citizens has been a matter of side effect, not policy.

                Though you may find it hard to believe, I am not against immigration, but I am against it being done at my direct expense. Mine alone is hardly reason for national concern, but it is at direct expense of many in the nation and done so currently for corporate benefit.

  10. To sum up your position: Hungry for power, Homeland Security, USCIS or some bureaucracy has gotten into the gang’s collective head. The intent is to punish righteous companies who’ve all been playing by the spirit of the law while the notoriously powerful lobby of IT/STEM workers have plotted to find ways to maliciously destroy these companies for being fair to them all along.

    1. Let’s inspect some of the points…

      Part 1:
      “This includes advertising through channels prescribed by the Labor Department”–like sites virtually no STEM candidate ever visits and most don’t even know about.

      “demonstrate … employee’s departure was voluntary or caused by poor performance or unacceptable behavior.”

      All this requires is the new VP from day one tells everyone that he intends to lay off they are suddenly unqualified with all work history being inconsequential. Also, if you lay off to contract a worker through an intermediary, all bets are off anyway.

      “Currently, the Labor Department can start investigations…[but has]…to receive a complaint from an aggrieved party who is willing to go on the record.” And forego their severance. And again, so long as they launder the replacement workers through Cognizant, etc.–all bets are off.

      “anyone — even an anonymous tipster — could set off an investigation” or a fire alarm or 911 dispatch. I know you’re trying to raise some spectre of unimaginable hardship. Can you really say there’s reason to believe any real impacts would ever exceed an anecdotal level?

    2. Part 2:

      Citing “Stuart Anderson” as a source discredits the argument.

      “enough to render the H-1B program useless” The program won’t be used now–even if the wage rules weren’t included? I’d happily take that bet.

      “it is aimed at pricing foreigners out of the labor market.” It is indeed aimed at not undercutting and overlooking domestic talent. You speak to a potential side effect, not the motivation.

      I do agree that there is reason for caution around the idea that some will be mad that someone from elsewhere makes more than they do.

      At the end with a legitimate argument around job prices. I tend to believe that with India’s IT/STEM wages increasing faster than the stagnant wages of their US counterparts, there’s less reason for alarm than you indicate.

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  12. H1-B’s are very frequently used as a cost cutter in Technology employment.

    There are many large corporations, including ones I have direct experience working with, that use the H1-B visa system to fill positions with non-Americans who are paid at much lower rates than their US counterparts. The trade off is usually language skills, familiarity with cultural norms, and ‘stickyness’. Wholesale off-shori of technology functions failed very publicly in the latter part of the 90s and the last decade. Partial ‘in-shoring’ is the current trend.

    These are not ‘highly skilled’ people doing jobs Americans won’t do. They’re middle and junior mgt. – the approx. $5000 cost of sponsoring the visa is easily offset by lower salaries.

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