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Sunday, December 20, 2015

Examining The H1B Visa Reform Bill And Its Opposition

Noted Objectivist and Ayn Rand scholar Yaron Brook has taken Republican presidential candidate senator Ted Cruz of Texas to task for his Senate bill that would amend the current H1B visa program to require employers pay visa holders the greater of what American workers (citizen or permanent resident) made two years prior to the petition, or $110,000 annually (adjusted for inflation).

The bill targets American employers seeking to exploit the nonenforcement or lax administration of the visa applicant examination process by bringing in cheap labor, using visa holders to replace higher paid Americans.

(QUICK! - WANT THE FACTS? Senator Cruz's immigration proposals are outlined on this official presidential campaign website, which you can access here. And then, you can donate to Cruz's presidential campaign using this link!)

In so doing, Dr. Brook advances a position with which many self-described conservatives -- and even a good number of liberals and "Reagan Democrats" -- would disagree. The labels actually are irrelevant, but it is those labels and the misguided fealty to them and the principles which some associate with them, which are the true barrier to a real world solution acceptable to Americans. Instead of trying to make our positions and opinions fit a preconceived (and subjective and possibly incorrect) notion of how a certain philosophy is defined, perhaps we should concentrate on looking at an issue and asking whether we agree and what we would change (that is, let's look for a solution) rather than concentrating on whether our position is something that Ronald Reagan would have done, or Ayn Rand would have written, or whatever. But I digress.

It is helpful to explain for starters the program at issue here. An H1B visa is a speciality visa available only to employees engaged in a special occupation whose employer cannot find a citizen or legal resident who can fulfill the requirements of the position. The visa is temporary, and may be obtained only by the petition of the employer, not the employee. Only after the employer is granted the petition can the employee then apply.

Here is the problem. Americans are increasingly unemployed, underemployed and overeducated. The number of Americans not in the labor force is one of only two numerical figures to routinely increase in each new monthly jobs report issued by the Department of Labor (the other being the noncustodial civilian population, that is, people of working age not in jail).

Now, what does the H1B visa program have to do with this? On the surface, at least, it appears to have an admirable and worthwhile goal of helping American business find and keep truly unique talent not available domestically.

Except the reality is different.

Over the years, the program has become abused. The program was intended to help American companies find and keep truly unique and valuable talent which they could not find domestically (e.g., world class athletes, models, computer engineers doing something cutting-edge like blockchain technology, or certain key employees in basically the managerial or ownership classes (think the law firm partner from Hong Kong who comes to New York to build the global practice). 

The Cruz bill (co-sponsored by Sen. Jeff Sessions) sets a floor of $110,000 as an annual salary, which is appropriate for such key talent and essentially says that anyone making less is really not crucial to the enterprise, a supremely uniquely talented worker, or whatever. 

This salary floor is a great prong for the bill. Because those of us in the service economy, who hear a great deal of scuttlebutt, have been hearing about serious abuses.

The result is that junior level white collar professionals, whether they be lawyers, accountants or IT engineers, as well as department store clerks (and the author knows examples of each), are increasingly consisting of H1B visa holders all too willing to undercut Americans of equal or superior talent for a shot at American salaries, generous American government benefits, landing a citizen spouse and maybe de facto permanent American residence if the march towards full nullification of the immigration laws continues at the current ramming speed.

To be fair, the foreigners are not really to blame here. They want to come here. It is the American employers who are willing to undercut Americans' wages and are exploiting the lax or non-existent enforcement of a program that gives lip service to stated regulations. Imagine that: the opposite of the typical government impulse towards overreaching, overregulation and even overcriminalization! (Warning: Violations of regulations, which go unenforced today, can be enforced criminally tomorrow. This is a trap for the unwary.)

American citizens on the ground know the sad truth about the H1B visa operation. They were born and raised here, played by the rules, studied and worked hard, and now find themselves competing at a distinct disadvantage in an economy where skills are commoditized, fraud (including the puffery or outright forgery of credentials) is on the upswing with violators willing to play good odds of Catch Me If You Can, and employers increasingly make hiring decisions on cost instead of quality.

Employers, to whom the program is geared, have long tried -- and largely, very successfully -- to game the system to misrepresent get in supposedly exceptional and unique employees without whom the business would soon perish.

The immigration authorities are supposed to examine the veracity of these applications. These responsibilities are most often honored -- in the breach. If you think Immigration and Customs Enforcement is overburdened (or worse, told to stand down) in its mission to secure the southwest border, think the same with these work visa applications.

The H1B visa program was not meant to recruit foreigners when a suitable American citizen was "not available" at a certain price point (e.g., salary) or willing to travel most of the time domestically because they were single or otherwise without responsibilities or restrictions on their mobility. But that is what it's become: a cost-savings measure.

And the opposition to the Cruz-Sessions bill is curious and misguided. Americans have every right -- indeed, a duty and responsibility to their fellow citizens, their families and especially their children -- to ensure a level playing field economically. Allowing a de facto open borders policy for cheap foreign labor, particularly when it comes from foreign countries which almost universally do not allow Americans to come into their economies, tilts the playing field against Americans. It is inherently unfair, because foreigners who come here, and screw up, or commit crimes, or whatever, have the option to go home. Americans cannot flee abroad -- without serious consequences as well as practical and logistical barriers -- with the same readiness.

An "open borders, open markets" argument does not work, because for Americans, there are no open borders for them nor open markets for them. (This is a perspective not shared by foreigners, who, like it or not, came here from other countries exploiting American mediocrity and who may feel slightly sheepish at displacing the natives.)

A true free market involves reciprocity, a trade between equals. What we have today is a rigged system in which Americans are disfavored in their own country.

The opposition to the Cruz-Sessions bill may be grounded on a misguided and perhaps even inadvertent philosophical foundation. 

First, it tells people that Americans have a duty, except that they don't, to allow and encourage their direct competitors to come in. It is as if Americans must "prove themselves." 

But why? Are Americans uniquely required to prove their merit, in their own country? If so, this is not a reward to Americans. The imposition of a higher standard is not a compliment. It is a penalty.

In addition, no one should be required to prove their worthiness by giving their detractors or potential replacements the tools at which they may meet their own demise. This is the entire point behind the outrage by Disney workers being told to train their replacements. 

And to whom is this standard to be proven? To foreigners? To employers who, to be fair, are entitled to maximize their profit? Again, this reduces to Americans suffering a penalty...for being Americans. This strikes me not as exalting Americans, or America, but rather as exploiting, demeaning and attacking Americans. 

This may be exactly how it feels to the American losers losing their jobs to cheaper foreigners under the current H1B visa system, whether it's articulated properly or not.

Furthermore, as explained above, the playing field is not level. Foreigners who come here, exploit our system, and still lose, are rewarded for their "bite the hand that feeds them" ingratitude: They have the option to go back home.  They risk little or nothing. Their reward-risk ratio is favorable...for them. 

Not so for Americans who "fail" or "lose" on a domestic playing field tilted against them. The fundamental inequality is a preference towards foreigners, and is de facto discrimination against Americans. Their reward-risk ratio is the inverse. But the Cruz-Sessions bill detractors may not care about that -- perhaps because the current system concentrates the rewards among foreign "winners" and socializes the risk and the losses among the domestic American "losers."

To advance this argument, to suggest it is philosophically sound, either argues that Americans are inherently inferior because they are Americans or that Americans must suffer the "luck of the draw" because they are situated here and, well, life is not fair.

Such arguments and motives are the domain of the Gramsci Marxists, the Angry-Left, Hate-America crowd which seek to undermine everything representing American hegemony and indeed Western civilization and capitalism. It should not be part and parcel of the argument or philosophy of those who seek to defend those institutions.



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