Judge Rejects H-1B Visa Injunction 442
theodp writes "Judge Faith Hochberg has denied a preliminary injunction sought by the Programmers Guild to put a hold on a controversial 'emergency' rule change by the Department of Homeland Security to permit foreign students to work continuously in the US for two-and-a-half years after graduation without an H-1B visa. Hochberg indicated she failed to see how an increased labor supply could result in wage depression for engineers and computer workers. That seems disingenuous, since in Andaya v. Citizens Mortgage Corporation, Judge Hochberg recently saw first-hand how a US employer got away with paying an H-1B computer engineer as little as $15,000 to do a job with a 'prevailing wage rate' of $41,000. In that case, Hochberg ruled against Filipino H-1B visa holder Almira Andaya, arguing that 'nonpayment of wages as listed on the H-1B visa petition ... does not raise a substantial question of federal law.'"
Re:Going to Bangalore (Score:5, Informative)
Re:I think you're missing the point (Score:4, Informative)
As a H1B visa holder, let me just squash this myth right here: H1B visa holders can quit and change jobs at will. If you quit, you have 60 days to find a new job before you are asked to leave the country. Most people I know find a job first and then leave. And there are no binding contracts or such associated with the visa. And there's only minor paperwork involved when changing jobs. So yeah, your above-mentioned scenario is total hogwash.
But hey, don't let me and my facts get into your way of perpetuating anti-immigration propaganda.
New Zealand solution (Score:5, Informative)
Re:Sigh (Score:2, Informative)
You're not wrong. Everything is as bad as you say it is, and you are one of the last boy scouts.
But we need boy scouts.
We need people who will still point out how flagrantly wrong and self-serving decisions like these are, even though doing so seems pointless. No, pointing this stuff out will not chance a thing. But having people recognize that things like this are wrong, is the necessary pre-condition for even the possibility of change to exist. If no one speaks up, then evils such as this would become the new standard of what "right and normal" is. And if that happens, then it would never occur to anyone else that things should, or even could be different.
Yeah, fighting against the tide rolling in seems utterly pointless. But at least the tide knows that you did not consent, you did not give in, and you went down fighting. Sometimes, that's enough to let a future generation pick up those ideals later on, and start the fight anew, and maybe even win next time.
Re:The US already has wage distortion. (Score:5, Informative)
Your post is almost 100% bullshit political conjecture about 'illegals,' corporate american, and employment. BTW, RN salaries here:
http://swz.salary.com/salarywizard/layouthtmls/swzl_compresult_national_HC07000001.html [salary.com]
Yeah, they make 60k, not 10-20k.
Re:Protection of the tech jobs market (Score:5, Informative)
I'd mod parent down, but I'd rather explain why I disagree.
Good. Moderating a post down simply because you disagree with it is an abuse of the moderation system - you may notice that there are no "-1, Wrong" or "-1, I Disagree" options.
Open US Borders Now (Score:4, Informative)
I seriously disaqgree with my conservative collegues and liberal union folks who argue against immigration to the United States. I am the descendant of immigrants, as is nearly everyone else in the USA, and our ancestors came when there were no rules to immigration.
I would argue that people who are motivated enough to leave their homelands to come to the USA are motivated enough to work hard and succeed and I have 200 years of outstanding economic growth and opportunity to back me up. Every time this country has opened its borders, we have gotten increased opportunity, increased social dynamism, all pumping the engine of capitalism and driving the USA to ever greater success.
Clamping down on Phds and graduate students from American universities is about the stupidest immigration policy that one could ever devise. If someone has come to this country to study and obtain a university degree, I would think that proves that they are the stuff we want our citizens to be.
The issue of immigration has split the Republican Party right down the middle, but I for one think that Bush and McCain were on the right side of the issue and it is a shame that the odd coalition of labor activists and xenophobes combined to bring what would have been an outstanding immigration bill dead in its tracks. Regardless of who is elected, I hope that saner heads will prevail in both parties, this time around, and America will once again live up to the promise of the statue of liberty, "Give me your poor, tired huddled masses yearning to breath free."... or, in the very least, "give me all of your phds in mechanical, electrical, and computer engineering, in fact, just give me all of them and your undergrads too."
Re:The US already has wage distortion. (Score:4, Informative)
Try looking around anywhere in the South. It's a different story here.
Of course, we have hospitals in the red left and right due to abuse by illegals, too. Parkland Memorial in Dallas is being abused, over 70% of their maternity-ward births to illegals now - and that doesn't even count the unpaid bills of all the OTHER abuse of the system.
Re:Protection of the tech jobs market (Score:3, Informative)
As a former potential H1B inmigrant, I mostly agree with you.
Everything you say _is_ true. You are only missing the part that it's too late now.
In my case, now I have a much better job than what I could hope for in the US, but in different countries of Latin America and the Caribbean. Of course, that is a plus, if you are a Latin American, because working in the US would imply being treated as a second class criminal periodically. I lie to think of me as a productive memberof society, though.
For other people I know, and I'm talking about the most capable people in software consulting I know, similar things happen. Some of them are working for companies in Mexico, Panama, and enjoying a great standard of living. Those of them who stayed home have good wages, mostly working for companies that export software and software services to the US and Europe.
And there's also Europe. They have historically paid a lot less than the US, but a weak dollar has changed that, and they have nice places to work, and laws that protect the workers.
And there are social issues with immigrants, but the governments doesn't see you as a second class citizen.
I can see that, as Latin America is rising, Asia is rising, too. So, the only ones who actually want to move to the US are low wage workers. Theones who can choose, just have better choices. I think now it's getting late for the US to start attracting talent. They are not that attractive anymore.
Re:I think you're missing the point (Score:3, Informative)
H1-B is seen as a potential path to citizenship, and always has been. It's intended to result in immigration of skilled labour.
There are alternate programs available via things like Nafta which are NOT intended to result in immigration. TN-1 Visa is an example. I've worked in the U.S. on a TN-1 visa.
TN-1 is good for a year, and allows for unlimited renewal. It does not however allow one to apply for a greencard, and does not simplify the immigration process in the least; rather it complicates it if that is your end goal.
Nation of Immigrants (Score:3, Informative)
I thought the USA was founded on immigration, you know
It was built by immigrants, but strictly speaking, it was founded on tax revolt. We didn't like sending payment to England just because you were trying to pay for the French and Indian war.
-jcr
We really didn't fix immigration as a part of our national identity until after the Civil War. Prior to that time, most Americans traced their ancestry to Britain. Irish, Germans, Poles, etc, didn't start coming here until well after the country was founded, and didn't kick into high gear until after the War between the States, which, consequently, is also about the time anti-immigrant sentiment really took off. And that "nation of immigrants" identity hasn't exactly been static since then. After World War One, we locked down draconian limits on immigration that stayed in place until the early 1960's. I think eventually those draconian limits are coming back. Our attitude towards immigration seems to swing back and forth over the generations.
Re:B.S. (Score:2, Informative)
If a visa holder wants to leave, he must first find another employer willing to accept (a) H1B's (which eliminates all but large businesses (b) H1B transfers (which eliminates even more companies).
The only difficult step in the whole process is actually applying for and obtaining the visa. Once you have the stamp, you're just like any other employee, free to look around and switch jobs. The only catch is that there is a small legal fee (immigration application, attorney fee, etc) associated with transferring your H1B from one employer to another. Most large reputable companies willing to hire H1B employees either have an in-house legal department to handle the procedure, or will pay your fees for you, which is why most people prefer large companies. That said, it is NOT that hard or tedious to work for a midsize or maybe even a small employer.
If you are an H1B, and you make noise about leaving, your employer simply calls the IMS and you have a few days to leave the country.
H1B visa holders have legal rights. As I mentioned earlier, if you quit your job or get fired, legally, you have 60 days before to either find a a new employer or go home.
While I completely agree with you that there should not be a barrier for skilled people to enter legally and work, until then H1B is actually a pretty decent program. Or at least was a decent program until they decided to limit the number of visa. Now I know there are some quirks and loopholes in it which allow some companies to operate immigrant sweatshops, however most people working under the visas are foreign students who went through the same education as you. It is a viable method for them to work while they go through their long tedious bureaucratic green card process. And believe me when I say that they're all getting competitive wages and ample freedom to move around. They're smart enough to know that. Overall, the program is doing far more good. Don't let a few abusers (read: cisco) and disgruntled laid off xenophobic douchebags (read: the programmer's guild) ruin it for the rest of us.
Re:Protection of the tech jobs market (Score:5, Informative)
I've worked with offshore programmers in both China and India. Time zones make it difficult, but the Indian company moved their working hours so there'd be more overlap. China had swing shifts going. Getting someone to talk to wasn't hard.
Understanding them was difficult. I found the Indians to have better English, both in terms of grammar AND accent.
Both produced working code and very, very good technical documentation.
--Mike
Re:Protection of the tech jobs market (Score:2, Informative)
I found the Indians to have better English, both in terms of grammar AND accent.
Of course. India was part of the British Empire and English has been the language of education there for over a century.
Re:I think you're missing the point (Score:4, Informative)
After the I-485 has been filed and pending for over 180 days and the I-140 has been approved, the employee can switch jobs as long as it's in a similar position. It's also possible to recapture the priority date by having another employer file for PERM and I-140 if the old I-140 has been approved and not been revoked by the previous employer.
As long as you have an approved PERM and/or I-140 it's fairly easy to keep extending the H-1B indefinitely beyond the 6 year period till your I-485 gets approved. You can also choose to work on EAD instead of H-1B if the I-485 application is pending.
The biggest hiccup in the Green Card process is the per country limit of 7% of the quota which keeps applicants from large countries like India and China waiting in line indefinitely while applicants from most other countries get approved a lot sooner because they are not affected by the per country quotas.
Myths and Realities About the USA H1-B Program (Score:4, Informative)
Myth: H1-Bs are the "best and brightest"
Reality: If that were true then the typical H1-B would a Nobel prize winning scientist. The truth is, the typical H1-B is an average student, hired right out of college with only a four year degree. The typical H1-B is no more qualified than the US graduates who are not getting jobs. The H1-Bs are just cheaper. And because of the lottery nature of the H1-B process, employers do not even know who they are getting. So how do employers know that they are getting the best and brightest?
Also, isn't it funny that almost all of the "best and brightest" come from countries where people earn as little as $1 a day? If it's really about the "best and brightest" then why aren't there more European H1-Bs?
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Myth: H1-Bs are needed because of the critical shortage of US technology workers
Reality: Serious academic studies clearly indicate that skills shortage is a myth.
> These studies done at Duke aren't alone in their assessment that there is in fact no skills shortage. They're backed up by other studies conducted by RAND Corporation, The Urban Institute and Stanford University, among others, all of which settle upon the same conclusion: There is no shortage of educated IT workers.
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1081923#PaperDownload [ssrn.com]
This according to a well researched article at baselinemag.com:
http://tinyurl.com/yoy2rw [tinyurl.com]
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Myth: H1-Bs do compete unfairly, because H1-Bs are paid the prevailing wage
Reality:
> According to data from the Bureau of Labor Statistics' Occupational Employment Statistics (OES) as the measurement of U.S. wages, and the H-1B LCA disclosure data to measure H-1B wages, 90% of H-1B employers' prevailing wage claims for programmers were below the median U.S. wage for that occupation and location, with 62% of them falling in the bottom 25th percentile of U.S. wages, said Miano [founder of the Programmer's Guild].
> Ron Hira, an assistant professor of public policy at the Rochester Institute of Technology (currently on leave) and a research associate at the Economic Policy Institute, pointed to USCIS's most recent report to Congress, which shows that the medium wage in 2005 for new H-1B computing professionals was just $50,000 -- even lower than the entry-level wages that a newly graduated tech worker with a bachelor's degree and no experience would command.
http://tinyurl.com/4bvwyh [tinyurl.com]
According to the U.S. Citizenship & Immigration Service's (USCIS) annual report to Congress in 2005, the aggregate data for computing professionals lend support to the argument that the practice of paying H-1Bs below-market wages is quite common.
http://www.sharedprosperity.org/bp187.html [sharedprosperity.org]
H1-Bs are hired at four different skill levels, "4" being the highest. But most H1-Bs are hired for the lowest "1" level jobs - regardless of what kind of work the H1-Bs actually do.
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Myth: In the USA enrollment in technical disciplines is declining. Proof the USA needs to hire more foreign workers
Reality: This myth is designed to confuse cause and effect. Employers are not forced to hire offshore because enrollment is down. Rather, enrollment is down because of aggressive offshoring by employers. But even with enrollments down, there are still more than enough US workers.
> Due to both outsourcing and insourcing, many young people are concluding that technology is a bad place to invest their time," said Mark Thoma, a professor of economics at the University of Oregon in Eugene.
http://tinyurl.com/4bvwyh [tinyurl.com]
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Myth: Critics of the H1-B program are xenophobic
Reality: This "argument" is nothing but name calling. These allegations are offered without any s
And an *emergency* no less. (Score:3, Informative)
According this back-door legislation, the shortage of tech workers was so sever, that it constituted a national emergency.
But, according to the US Bureau of Labor Statistics:
August 06, 2008
Almost 50,000 IT positions lost in last 12 months
http://www.infoworld.com/article/08/08/06/Bureau-of-Labor-Statistics-reports-big-drop-in-tech-jobs_1.html [infoworld.com]
Re:Myths and Realities About the USA H1-B Program (Score:3, Informative)
The point is not protectionism. The point is that the H1-B program is being used to create a class of indentured servants, who are pushing native US workers out of jobs while being exploited themselves.
After I got laid off from HP nearly 3 years ago, I fully expected to have another IT-related job long before my severance package and unemployment ran out. Instead, I've lost my house, declared bankruptcy, and am now working as a security guard, making less than 1/3 of what I used to earn with health coverage that sucks hard (nice fat deductible to discourage me from ever seeing a doctor for anything short of a life-threatening emergency, limited prescription coverage, etc.). As far as the statistics are concerned, I'm fully employed and the politicians don't have to worry about the impact I have on their precious numbers (never mind the impact their policies have had on my family and me).
In the year and a half I've been there, I've performed well enough that I've managed to become the 2nd in command and stand to become the site manager if my boss moves on. At which point I'll move up to making maybe 40% of what I used to. Sweet.
-Mike
Re:Protection of the tech jobs market (Score:3, Informative)