November 9, 2017
By Dale L. Wilcox
Immigration has leaped forward in the American consciousness the last few years from one of several relevant issues to a driving force in our body politic. The current occupant of the Oval Office would almost certainly not be there today without the issue and the passions it creates in voters. It can be reasonably argued that the effects of immigration policy touch the lives of every person in this country, regardless of their diplomatic status.
Most people’s thoughts on the subject lean toward images of low-skilled workers in farming, construction or landscaping — allegedly the kind of “jobs that Americans won’t do,” in pro-open borders politician-speak. There has been a spirited debate as to whether Americans would indeed do those jobs. Among highly-skilled American workers in the areas of science, technology, engineering, and mathematics (STEM), however, there is little debate that the exploitation of immigration laws is causing them great pain.
Lawyers from the Immigration Reform Law Institute (IRLI) recently filed an appeal for the plaintiff union in the case of Washington Alliance of Technology Workers v. U.S. Department of Homeland Security. At issue is whether nonimmigrant foreign nationals here on an F-1 student visa can continue to stay and work on that visa after they graduate. The plaintiff union (“Washtech”) argues that under our immigration law they cannot.
Why does this matter? Washtech represents American union workers in STEM sectors. Allowing foreign students with STEM backgrounds extended stays in the U.S. makes them more available for positions that, were they not here, would go to American workers. It is the latest battlefield where the rights of American workers are harmed by government policy and a desire by employers for the most inexpensive labor possible.
The Immigration and Nationality Act created several classifications of nonimmigrants who are allowed to enter the country, for limited purposes and amounts of time. Aside from F-1, one of the most common classifications is H-1B, which allows U.S. employers to temporarily employ foreign workers in specialty occupations.
H-1B has also been challenged in a number of high-profile lawsuits. Two terminated workers filed suit against Disney and two outsourcing companies. The long-term former employees alleged that the entertainment giant and its partners conspired to abuse H-1B laws to outsource their jobs to India. An Orlando judge tossed out the suit, but the workers have appealed.
A similar suit filed by workers at Toys ‘R’ Us cited the company’s practice of having U.S.-based employees train foreign workers to do their jobs, which were also then shipped to India in conjunction with outsourcing partner companies.
The defendant companies claim the moves are legal and designed to streamline operations, which will purportedly allow them to create more U.S.-based jobs in the future. Even if that is true, the practice in these cases is a manipulation of the laws. In the case of H-1B, the employer must certify that the alien will be paid at least “the prevailing wage level for the occupational classification in the area of employment.” Even if that provision is followed, there is no provision that prevents employers from having properly compensated H-1B workers acquire the skills of jobs for the purpose of then shipping them to another country where workers there would be paid a fraction of the salary that American workers were paid. Practices such as these are all too familiar to the many thousands of American manufacturing workers who have seen their jobs and livelihood go overseas.
Immigration challenges like these usually have three participants. One is the seemingly limitless number of foreign nationals, increasingly highly skilled, who are eager to come here for better opportunities. Another is employers who, as shrewd businesspeople do, look to keep labor costs as low as possible. Finally there is government, which is tasked with creating a fair playing field for all, but often ends up enabling foreign nationals and employers at the expense of American workers. For the well-being of our country and our fellow citizens, this cannot continue.
The free-market system has served America very well over time, and that should continue to be the framework of our economy. With the advent of globalism, outsourcing and the digital age, however, safeguards are needed so that American workers — our parents, children, friends and neighbors — get their shot at the American Dream as well.
Dale L. Wilcox is executive director and lead counsel at the Immigration Reform Law Institute, a public interest law firm working to defend the rights and interests of the American people from the negative effects of mass migration.
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