December 29, 2021
By John Miano
When it comes to replacing high-skilled American workers with cheap, foreign workers, the H-1B program gets five stars.
H-1B visas are available for any occupation that normally requires a college degree, but most go to computer programmers, and it was the tech industry that successfully lobbied Congress to allow employers to replace Americans with imported workers on H-1B visas.
At first, one might think Congress bungled the job Big Tech gave it. The law includes apparent safeguards for American workers, such as requiring that employers pay H-1B workers at least the prevailing wage. But that was an empty show of protection by Congress, as other provisions demonstrate.
For instance, the law provides that when an employer submits a prevailing wage claim the Department of Labor must approve it within seven days as long as the form is filled out correctly. The law prohibits the Department of Labor from reviewing such claims after they’ve been approved, so it’s really just employers themselves who set the “prevailing wage.”
Lest any concern linger that Congress still might have blown it here, the results vindicate its methods. An Indian financial analyst looking at companies in that country that use H-1B workers found that Americans are paid 25-30% more than H-1B workers.
Indeed, if you put together the ability to pay foreign workers much lower wages with the ability to replace Americans with those workers, the result is entirely predictable. Since the H-1B visa was created in 1990, employers have openly fired and replaced hundreds of Americans at a time with H-1B workers.
The most famous example came when Disney replaced about 250 Americans with H-1B workers. Even at the height of the pandemic, the TVA was in the process of replacing Americans with H-1B workers until President Trump intervened.
The H-1B statutes contain other restrictions on enforcement that are helpful in replacing Americans. To be sure, these restrictions also have resulted in massive fraud. The last compliance audit found that over 13% of approved H-1B visas were fraudulent.
In creating the H-1B visa, Congress also had the honor of creating the business of moving technology jobs overseas. Vendors providing “offshoring services” typically use one H-1B worker imported into the U.S. to support about six additional jobs moved overseas (usually to India).
There is no need to “fix” the H-1B program because it already works so well at its intended purpose — replacing Americans with cheap, foreign labor. It is one area of immigration law where Congress accomplished just what it set out to do. Indeed, Congress succeeded so well that, if it ever decided not to hurt American workers, but instead to protect their livelihoods, it would scrap the H-1B program entirely.
John Miano is an attorney for the Immigration Reform Law Institute who represents Americans displaced by the H-1B visa program.
Also published at: John Miano, H-1B Visa Program Hurts Americans, The Charlotte Observer, December 29, 2021.
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