"You're Fired!" The Abuses of "Skilled" Worker Visa Programs
Saturday, 05 March 2016 00:00 By Sarah Jaffe, The Progressive | Report
The H-1B visa program is supposed to have safeguards against abuse,
including rules designed to ensure that guest workers are not a
significantly cheaper option for companies looking to save a buck - but 83
percent of the H-1B recipients are paid wages below the average for that
occupation, because of flaws in the system. (Image: Fired worker via
Shutterstock)Stuart Zwicke lasted eight years in the information technology
department at Molina Healthcare of New Mexico, in Albuquerque, where he
watched everyone on his original team let go.
"I did not apply to Molina," he says. "They reached out to me because of my
job skills and technical skills. They brought me in to design and build
their data center, the heartbeat of the entire company here in New Mexico."
The data center was miles from the company's main headquarters in Long
Beach, California, and Zwicke and two others were the only ones working
there. Instead of bringing in permanent help, he said, the company would
rotate in groups of workers for a week or so at a time, to be trained at the
center.
"I would tell my senior management, 'We have a really big problem here,' "
Zwicke says. "At the time I was a senior administrator, and these guys
didn't have the basic 101 skill set. We did everything we could, we were
doing eighty-, ninety-hour weeks and trying to groom them as we went along."
The workers, Zwicke learned, were brought in by a contractor, Cognizant, on
H-1B guest worker visas, supposedly issued for workers with specialized
skills. But Zwicke says that, in fact, the new workers made his job harder.
He'd ask to see the résumés for workers he was training, to gauge their
skill levels, but says all he received were assurances that the workers were
qualified.
Back in Long Beach, in 2010, eighteen workers in the company's information
technology department were laid off. According to attorney James Otto, who
filed suit on behalf of those eighteen workers, the company turned around
and brought in forty new workers via Cognizant. The employees who'd been let
go had made an average of $75,000 a year; the guest workers would be paid
much less, and receive no benefits.
"They'd say this is cost-effective, this is the way it is, get with the
program or else," says Zwicke, a combat veteran who, in August, after his
second heart attack, was also let go. (Otto has filed a discrimination
complaint on Zwicke's behalf.)
To Otto, who also represents workers at Disney who were laid off and then
required to train their replacements, the process of replacing American
workers with H-1B temporary hires through companies like Cognizant is part
of the further commodification of labor.
"Disney just doesn't care about people, that's the bottom line, which is
funny for Disney because that's the business they're in," Otto says.
"Everybody they replaced was highly skilled, highly productive, and highly
regarded because each one of them had performance evaluations for several
years running that said they were exceptional."
Otto has also filed a lawsuit on behalf of Yelena Kutepova, who worked in
the information technology department at the Screen Actors Guild Producers
Pension and Health Plans since 1998. As she recalls, "My reviews were
excellent, I was very professional." But she was surrounded by guest
workers, some of whom would go back home after their visa ended, only to
return again and again.
In 2012, Kutepova was diagnosed with breast cancer. At first, she says, she
scheduled her medical treatments during her lunch hour so she could still
work. When her boss complained about her being late returning from the
doctor, she stopped going to treatments. Nevertheless, last summer she was
let go. The written reason for her layoff was "to reduce the number of [SAG]
employees in the IT Department."
At the same time, a group of her colleagues were also let go. "All of us
were over age fifty," she says. Kutepova was two years from retirement. Last
she heard, her job was being filled by more guest workers. "After you put in
seventeen years, you feel like the place is your family," she says. "I
think, 'Why did this happen to me? I didn't do anything wrong.' "
"When they bring in these foreign workers, they don't believe they have
rights...what they want, what they demand, is subservience."
The H-1B visa has its origins in the 1990 Immigration Act and was intended,
according to Daniel Costa, director of immigration law and policy research
at the nonprofit Economic Policy Institute, to bring in workers with
specialized skills to complement, not replace, workers already in the United
States.
The program has been capped at 65,000 visas per year (the visas normally,
though not always, are good for three years), with an additional 20,000
available for workers who've attained advanced degrees at U.S. institutions.
But there has been a push in recent years to raise that cap, as technology
companies have put together a massive PR and lobbying blitz arguing that
there are not enough Americans with the requisite skills in so-called STEM
(science, technology, engineering, and math) fields.
That push made the H-1B question a hugeand hugely contentiouspart of the
2013 immigration reform negotiations in Congress; the top ten H-1B donors
spent $8.2 million on candidates in the prior election cycle. Tech
companies, including Microsoft, Facebook, and Google, pushed hard for a hike
in the cap, and, Costa says, "basically got almost everything they wanted,"
though the bill ultimately failed to pass.
The H-1B visa program is supposed to have safeguards against abuse,
including rules designed to ensure that guest workers are not a
significantly cheaper option for companies looking to save a buck. But Costa
says 83 percent of the H-1B recipients are paid wages below the average for
that occupation, because of flaws in the system.
"The usual argument from proponents of H-1B expansion is these are the best
and brightest workers," Costa says. "Either that's true and they're just
being paid really low wages, or they really are entry-level workers whose
skills are new and cheap."
Shannon Lederer, director of immigration policy at the AFL-CIO, notes that
while the guest worker system is structured into narrow slivers, with
different visa qualifications, it's instructive to look at the system as a
whole.
"It really does reveal a lot when you see how consistent the patterns of
abuse are across wage and skill distinctions," Lederer says. "The abuses
that guest workers face really aren't due to the fact that they don't speak
English well or aren't well educated; they're baked into the power
asymmetries that the work visa programs institutionalize."
Workers who dare to make demands on their employers are often told: If you
don't like it, find another job. But guest workers literally cannot do so.
Like other guest workers, H-1B workers are tied to the employer who brings
them in, and have an added incentive to behave on the job since an H-1B
employer can sponsor them for an eventual green card. Their choice is to
stay at the job or get on a plane home.
"When they bring in these foreign workers, they don't believe they have
rights," says Otto. "Every employer who imports these foreign workers, what
they want, what they demand, is subservience."
Jim Knoepp, deputy legal director of the Immigrant Justice Project at the
Southern Poverty Law Center, notes that this works to the disadvantage of
other workers as well. "It's awfully hard for a U.S. worker to compete with
somebody who has to work at that employer regardless of what the conditions
might be," he says.
Even when H-1B workers aren't much cheaper than U.S. workers, the program
still creates conditions ripe for abuse and suffers from inadequate
oversight, according to Lederer. "There is no one whose job it is to look
across all the visa programs," she says. "Nobody wants to reveal what the
total is, because when you add it up it amounts to hundreds of thousands of
new, vulnerable workers every year without adequate rights and protections."
The top employers of H-1B workers are all companies like Cognizant, which
Otto refers to as "body shops." Like temporary staffing agencies in the
United States, these companies do all the work of hiringincluding procuring
visasand are the guest workers' legal employer. That way, companies like
Disney and Molina can maintain they haven't hired any guest workers; they're
just "leasing" them from the staffing agency.
Like the in-country staffing agencies, Lederer says, companies that hire
H-1B workers seek a more flexible, disposable workforce. Stuart Zwicke and
Yelena Kutepova each suffered serious health problems and asked their
employers to allow them time to get healthy; a brand-new young H-1B worker
would not seek such accommodation.
Companies can also directly hire H-1B workers, or independent recruiters can
help place them, but Lederer says research she's read "shows that the
staffing agency model holds the greatest potential for exploitation." In
Atlanta, for example, when H-1B public school teachers were hired through a
staffing agency, the public contract showed how much the district was paying
the agency but, Lederer says, "there was no due diligence by the district to
know how much the agency was paying teachersthat's how the distancing
obscures responsibility."
Many staffing companies are also outsourcing companies, which bring in
workers for what they call "knowledge transfer"think the Disney workers,
training their own replacementsand then send the jobs back overseas with
the guest workers, offshoring them permanently.
As with wages, there are rules meant to prevent the kind of displacement
charged at Disney and Molina. But Costa says companies that are "H-1B
dependent" can get around those rules by hiring H-1B workers with master's
degrees, or by paying them more than $60,000. That may sound like a decent
wage, but Costa notes it's often at least $20,000 less than the average wage
in the technology sectorgiving these companies a substantial saving on
labor costs.
Companies using H-1B workers have been accused of skirting even the minimal
wage requirements. In 2013, the staffing agency Tata agreed to a $29 million
settlement in a suit alleging it forced its Indian guest workers to hand
over their tax refunds to the company. Recruiters, too, make their money
from the workers, in many cases charging fees to link workers with jobs in
the United States.
And while the H-1B program was designed to help recruit skilled workers who
bring long-term value to companies, the reality, Costa says, is that "these
companies are rotating workers in and out. It's not a bridge to immigration;
they're not trying to keep and retain these workers."
Ron Hira, a research associate at the Economic Policy Institute and
associate professor of public policy at Howard University, has calculated
that only one in fifty H-1B workers is sponsored for a green card. In fiscal
2013, Cognizant got 5,192 H-1Bs and sponsored 152 green card applications;
Tata got 6,163 H-1Bs and sponsored exactly zero.
"There really needs to be solidarity between the U.S. workers and immigrant
workers. It's about raising wages for everybody, it's about combating
corporate exploitation of the immigration system."
The H-1B program hangs on the myth of the skills gapthe notion that there
just aren't enough people in the United States with the proper skills to do
high-tech jobs. Thus, the argument goes, U.S. companies must import skilled
labor from elsewhere to compete internationally.
The problem, according to everyone who spoke to me for this story, is that
it's just not true. In the case of Disney and Molina, at which U.S. workers
were already in the jobs, getting positive performance reviews, it's
blatantly obvious. In other cases, it might be less so, but once again, the
guest worker program's rules allow employers to take advantage.
"There's an easy way to find out if there are workers available," Costa
says. "Require them to pay the right wage and advertise." But a company that
wants, say, to hire a programmer in New York doesn't have to advertise at
all; it can just get an H-1B worker.
Meanwhile, as Americans are told over and over to get STEM training, a 2014
survey found that 75 percent of U.S. STEM graduates go to work in other
fields. "Americans are spending a lot of money to learn how to do those
jobs," says Otto, even if they don't land in them.
Knoepp argues that reforming the guest worker system would prove once and
for all whether there is a skills gap. If there really are no current
Americans to do the work, he suggests, then rather than making immigrants
come in on short-term visas tied to one employer, bring them in and give
them full rightsparticularly the right to leave their current job and find
another.
"My guess," he says, "is the employer's response to that is, 'Once you do
that, they're going to leave, they're going to find other work.' So the
problem isn't a labor shortage. It's a shortage of people who want to do
your job at the wages that you want to pay." Why, Knoepp wonders, should the
government "allow you to artificially increase the supply of labor so you
don't have to compete with everybody else in the labor market?"
When talking about guest workers and U.S. jobs, particularly the kinds of
tech-skilled jobs that are seen as desirable, it can be tempting to slip
into language that pits one group of workers against another. But H-1B visa
critics say reforming the program would actually benefit both groups of
workers.
"There really needs to be solidarity between the U.S. workers and immigrant
workers," Costa says. "It's about raising wages for everybody, it's about
combating corporate exploitation of the immigration system."
The Economic Policy Institute has recommended requiring that guest workers
be paid in the seventy-fifth percentile for a particular job and no lower
than the national average. It has also called for employers to advertise
jobs on a central database for thirty days and hire an equally or
better-qualified U.S. worker. A reform proposed by Senators Dick Durbin,
Democrat of Illinois, and Chuck Grassley, Republican of Iowa, would prohibit
larger companies from getting H-1B visas if more than 50 percent of their
workforce is made up of guest workers.
And Lederer stresses that workers in legal immigration programs should not
face the same problems as undocumented workers.
"We want them to be able to assert their rights on the job, to have a path
to citizenship, to be able to live securely with their families," she says.
"If you apply any of those big aspirations to the guest worker system, it
falls well short of meeting them, even though it is a legal channel. That is
why we really need new models."
This piece was reprinted by Truthout with permission or license. It may not
be reproduced in any form without permission or license from the source.
SARAH JAFFE
Sarah Jaffe is an independent journalist covering labor, social and economic
justice, and politics for The Atlantic, The Guardian, In These Times,
Truthout and many other publications. She is the cohost of Belabored, a
labor podcast hosted by Dissent magazine, and a frequent guest on other TV
and radio programs. She lives in Brooklyn with a rescue dog and too many
books.
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"You're Fired!" The Abuses of "Skilled" Worker Visa Programs
Saturday, 05 March 2016 00:00 By Sarah Jaffe, The Progressive | Report
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The H-1B visa program is supposed to have safeguards against abuse,
including rules designed to ensure that guest workers are not a
significantly cheaper option for companies looking to save a buck - but 83
percent of the H-1B recipients are paid wages below the average for that
occupation, because of flaws in the system. (Image: Fired worker via
Shutterstock)Stuart Zwicke lasted eight years in the information technology
department at Molina Healthcare of New Mexico, in Albuquerque, where he
watched everyone on his original team let go.
"I did not apply to Molina," he says. "They reached out to me
because of my job skills and technical skills. They brought me in to design
and build their data center, the heartbeat of the entire company here in New
Mexico."
The data center was miles from the company's main headquarters in Long
Beach, California, and Zwicke and two others were the only ones working
there. Instead of bringing in permanent help, he said, the company would
rotate in groups of workers for a week or so at a time, to be trained at the
center.
"I would tell my senior management, 'We have a really big problem here,' "
Zwicke says. "At the time I was a senior administrator, and these guys
didn't have the basic 101 skill set. We did everything we could, we were
doing eighty-, ninety-hour weeks and trying to groom them as we went along."
The workers, Zwicke learned, were brought in by a contractor, Cognizant, on
H-1B guest worker visas, supposedly issued for workers with specialized
skills. But Zwicke says that, in fact, the new workers made his job harder.
He'd ask to see the résumés for workers he was training, to gauge their
skill levels, but says all he received were assurances that the workers were
qualified.
Back in Long Beach, in 2010, eighteen workers in the company's information
technology department were laid off. According to attorney James Otto, who
filed suit on behalf of those eighteen workers, the company turned around
and brought in forty new workers via Cognizant. The employees who'd been let
go had made an average of $75,000 a year; the guest workers would be paid
much less, and receive no benefits.
"They'd say this is cost-effective, this is the way it is, get with the
program or else," says Zwicke, a combat veteran who, in August, after his
second heart attack, was also let go. (Otto has filed a discrimination
complaint on Zwicke's behalf.)
To Otto, who also represents workers at Disney who were laid off and then
required to train their replacements, the process of replacing American
workers with H-1B temporary hires through companies like Cognizant is part
of the further commodification of labor.
"Disney just doesn't care about people, that's the bottom line, which is
funny for Disney because that's the business they're in," Otto says.
"Everybody they replaced was highly skilled, highly productive, and highly
regarded because each one of them had performance evaluations for several
years running that said they were exceptional."
Otto has also filed a lawsuit on behalf of Yelena Kutepova, who worked in
the information technology department at the Screen Actors Guild Producers
Pension and Health Plans since 1998. As she recalls, "My reviews were
excellent, I was very professional." But she was surrounded by guest
workers, some of whom would go back home after their visa ended, only to
return again and again.
In 2012, Kutepova was diagnosed with breast cancer. At first, she says, she
scheduled her medical treatments during her lunch hour so she could still
work. When her boss complained about her being late returning from the
doctor, she stopped going to treatments. Nevertheless, last summer she was
let go. The written reason for her layoff was "to reduce the number of [SAG]
employees in the IT Department."
At the same time, a group of her colleagues were also let go. "All of us
were over age fifty," she says. Kutepova was two years from retirement. Last
she heard, her job was being filled by more guest workers. "After you put in
seventeen years, you feel like the place is your family," she says. "I
think, 'Why did this happen to me? I didn't do anything wrong.' "
"When they bring in these foreign workers, they don't believe they have
rights...what they want, what they demand, is subservience."
The H-1B visa has its origins in the 1990 Immigration Act and was intended,
according to Daniel Costa, director of immigration law and policy research
at the nonprofit Economic Policy Institute, to bring in workers with
specialized skills to complement, not replace, workers already in the United
States.
The program has been capped at 65,000 visas per year (the visas normally,
though not always, are good for three years), with an additional 20,000
available for workers who've attained advanced degrees at U.S. institutions.
But there has been a push in recent years to raise that cap, as technology
companies have put together a massive PR and lobbying blitz arguing that
there are not enough Americans with the requisite skills in so-called STEM
(science, technology, engineering, and math) fields.
That push made the H-1B question a hugeand hugely contentiouspart of the
2013 immigration reform negotiations in Congress; the top ten H-1B donors
spent $8.2 million on candidates in the prior election cycle. Tech
companies, including Microsoft, Facebook, and Google, pushed hard for a hike
in the cap, and, Costa says, "basically got almost everything they wanted,"
though the bill ultimately failed to pass.
The H-1B visa program is supposed to have safeguards against abuse,
including rules designed to ensure that guest workers are not a
significantly cheaper option for companies looking to save a buck. But Costa
says 83 percent of the H-1B recipients are paid wages below the average for
that occupation, because of flaws in the system.
"The usual argument from proponents of H-1B expansion is these are the best
and brightest workers," Costa says. "Either that's true and they're just
being paid really low wages, or they really are entry-level workers whose
skills are new and cheap."
Shannon Lederer, director of immigration policy at the AFL-CIO, notes that
while the guest worker system is structured into narrow slivers, with
different visa qualifications, it's instructive to look at the system as a
whole.
"It really does reveal a lot when you see how consistent the patterns of
abuse are across wage and skill distinctions," Lederer says. "The abuses
that guest workers face really aren't due to the fact that they don't speak
English well or aren't well educated; they're baked into the power
asymmetries that the work visa programs institutionalize."
Workers who dare to make demands on their employers are often told: If you
don't like it, find another job. But guest workers literally cannot do so.
Like other guest workers, H-1B workers are tied to the employer who brings
them in, and have an added incentive to behave on the job since an H-1B
employer can sponsor them for an eventual green card. Their choice is to
stay at the job or get on a plane home.
"When they bring in these foreign workers, they don't believe they have
rights," says Otto. "Every employer who imports these foreign workers, what
they want, what they demand, is subservience."
Jim Knoepp, deputy legal director of the Immigrant Justice Project at the
Southern Poverty Law Center, notes that this works to the disadvantage of
other workers as well. "It's awfully hard for a U.S. worker to compete with
somebody who has to work at that employer regardless of what the conditions
might be," he says.
Even when H-1B workers aren't much cheaper than U.S. workers, the program
still creates conditions ripe for abuse and suffers from inadequate
oversight, according to Lederer. "There is no one whose job it is to look
across all the visa programs," she says. "Nobody wants to reveal what the
total is, because when you add it up it amounts to hundreds of thousands of
new, vulnerable workers every year without adequate rights and protections."
The top employers of H-1B workers are all companies like Cognizant, which
Otto refers to as "body shops." Like temporary staffing agencies in the
United States, these companies do all the work of hiringincluding procuring
visasand are the guest workers' legal employer. That way, companies like
Disney and Molina can maintain they haven't hired any guest workers; they're
just "leasing" them from the staffing agency.
Like the in-country staffing agencies, Lederer says, companies that hire
H-1B workers seek a more flexible, disposable workforce. Stuart Zwicke and
Yelena Kutepova each suffered serious health problems and asked their
employers to allow them time to get healthy; a brand-new young H-1B worker
would not seek such accommodation.
Companies can also directly hire H-1B workers, or independent recruiters can
help place them, but Lederer says research she's read "shows that the
staffing agency model holds the greatest potential for exploitation." In
Atlanta, for example, when H-1B public school teachers were hired through a
staffing agency, the public contract showed how much the district was paying
the agency but, Lederer says, "there was no due diligence by the district to
know how much the agency was paying teachersthat's how the distancing
obscures responsibility."
Many staffing companies are also outsourcing companies, which bring in
workers for what they call "knowledge transfer"think the Disney workers,
training their own replacementsand then send the jobs back overseas with
the guest workers, offshoring them permanently.
As with wages, there are rules meant to prevent the kind of displacement
charged at Disney and Molina. But Costa says companies that are "H-1B
dependent" can get around those rules by hiring H-1B workers with master's
degrees, or by paying them more than $60,000. That may sound like a decent
wage, but Costa notes it's often at least $20,000 less than the average wage
in the technology sectorgiving these companies a substantial saving on
labor costs.
Companies using H-1B workers have been accused of skirting even the minimal
wage requirements. In 2013, the staffing agency Tata agreed to a $29 million
settlement in a suit alleging it forced its Indian guest workers to hand
over their tax refunds to the company. Recruiters, too, make their money
from the workers, in many cases charging fees to link workers with jobs in
the United States.
And while the H-1B program was designed to help recruit skilled workers who
bring long-term value to companies, the reality, Costa says, is that "these
companies are rotating workers in and out. It's not a bridge to immigration;
they're not trying to keep and retain these workers."
Ron Hira, a research associate at the Economic Policy Institute and
associate professor of public policy at Howard University, has calculated
that only one in fifty H-1B workers is sponsored for a green card. In fiscal
2013, Cognizant got 5,192 H-1Bs and sponsored 152 green card applications;
Tata got 6,163 H-1Bs and sponsored exactly zero.
"There really needs to be solidarity between the U.S. workers and immigrant
workers. It's about raising wages for everybody, it's about combating
corporate exploitation of the immigration system."
The H-1B program hangs on the myth of the skills gapthe notion that there
just aren't enough people in the United States with the proper skills to do
high-tech jobs. Thus, the argument goes, U.S. companies must import skilled
labor from elsewhere to compete internationally.
The problem, according to everyone who spoke to me for this story, is that
it's just not true. In the case of Disney and Molina, at which U.S. workers
were already in the jobs, getting positive performance reviews, it's
blatantly obvious. In other cases, it might be less so, but once again, the
guest worker program's rules allow employers to take advantage.
"There's an easy way to find out if there are workers available," Costa
says. "Require them to pay the right wage and advertise." But a company that
wants, say, to hire a programmer in New York doesn't have to advertise at
all; it can just get an H-1B worker.
Meanwhile, as Americans are told over and over to get STEM training, a 2014
survey found that 75 percent of U.S. STEM graduates go to work in other
fields. "Americans are spending a lot of money to learn how to do those
jobs," says Otto, even if they don't land in them.
Knoepp argues that reforming the guest worker system would prove once and
for all whether there is a skills gap. If there really are no current
Americans to do the work, he suggests, then rather than making immigrants
come in on short-term visas tied to one employer, bring them in and give
them full rightsparticularly the right to leave their current job and find
another.
"My guess," he says, "is the employer's response to that is, 'Once you do
that, they're going to leave, they're going to find other work.' So the
problem isn't a labor shortage. It's a shortage of people who want to do
your job at the wages that you want to pay." Why, Knoepp wonders, should the
government "allow you to artificially increase the supply of labor so you
don't have to compete with everybody else in the labor market?"
When talking about guest workers and U.S. jobs, particularly the kinds of
tech-skilled jobs that are seen as desirable, it can be tempting to slip
into language that pits one group of workers against another. But H-1B visa
critics say reforming the program would actually benefit both groups of
workers.
"There really needs to be solidarity between the U.S. workers and immigrant
workers," Costa says. "It's about raising wages for everybody, it's about
combating corporate exploitation of the immigration system."
The Economic Policy Institute has recommended requiring that guest workers
be paid in the seventy-fifth percentile for a particular job and no lower
than the national average. It has also called for employers to advertise
jobs on a central database for thirty days and hire an equally or
better-qualified U.S. worker. A reform proposed by Senators Dick Durbin,
Democrat of Illinois, and Chuck Grassley, Republican of Iowa, would prohibit
larger companies from getting H-1B visas if more than 50 percent of their
workforce is made up of guest workers.
And Lederer stresses that workers in legal immigration programs should not
face the same problems as undocumented workers.
"We want them to be able to assert their rights on the job, to have a path
to citizenship, to be able to live securely with their families," she says.
"If you apply any of those big aspirations to the guest worker system, it
falls well short of meeting them, even though it is a legal channel. That is
why we really need new models."
This piece was reprinted by Truthout with permission or license. It may not
be reproduced in any form without permission or license from the source.
Sarah Jaffe
Sarah Jaffe is an independent journalist covering labor, social and economic
justice, and politics for The Atlantic, The Guardian, In These Times,
Truthout and many other publications. She is the cohost of Belabored, a
labor podcast hosted by Dissent magazine, and a frequent guest on other TV
and radio programs. She lives in Brooklyn with a rescue dog and too many
books.
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Constantly on the Edge of the Knife"
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By Sarah Jaffe, Truthout | Report
Show Comments
