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Dr. Norm Matloff On Jason Chaffetz And H.R. 3012: "Either Egregregiously Naive Or Egregregiously Deceiving"
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December 06, 2011, 03:10 AM
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Dr Norm Matloff writes to his email list:

As some of you know, the House recently passed H.R. 3012, with overwhelming bipartisan support. This bill would eliminate the per-country yearly caps in employer-sponsored green cards.
Senator Grassley, whose H-1B reform bill (coauthored by Sen. Durbin) I`ve praised here, has placed a hold on H.R. 3012`s processing in the Senate. (A similar bill had already been introduced in the Senate.)
Since so many foreign tech workers are from India and China, their quotas under current law are greatly oversubscribed, resulting in extraordinarily long wait times (for a certain subset of them, explained below). Typicall they are already working here under the H-1B visa program, which nominally has a cap of six years, but which may be renewed yearly if a green card application is pending. Thus we are not "sending them home to compete with us," as President Obama asserted in his State of the Union Address. But advocates such as Vivek Wadhwa have been pushing such a bill on the grounds that (a) many in the queue will give up and go home and (b) this would be a loss to the U.S.
I`d like to point out some aspects of this bill that may not be widely known.

1. Sen. Schumer and others support claim (b) above, saying that we`d be losing the innovators, the geniuses etc. This is simply false. The long waits are for EB-3, the "lowest" of the three main job-based categories, in contrast to the "exceptional talent" categories EB-1 and EB-2, where wait times are reasonable. If EB-3 people bail, we`re losing "the average and the ordinary," not "the best and the brightest."

2. Perhaps Sen. Grassley intends to ask for concessions. If so, the best one to push for, in my view, would be reform to the very core of problems with H-1B and employer-sponsored green cards: The huge loopholes in the prevailing wage. These would be easy to fix, and indeed Sen. Grassley`s own bill would go a long way toward this, by defining prevailing wage as the 50th percentile wage for the given occupation.

The AFL-CIO (DPE) proposal of the 75th percentile is even better; if the foreign workers are the best and the brightest, possess rate skills etc., employers should be willing to pay more than average—which current prevailing wage law does NOT require. This is a market-based solution that just makes plain common sense.

3. The authors of the House and Senate bills, Chaffetz and Lee, make an interesting remark the other day about Grassley`s hold action (Key senator blocks Lee-Chaffetz immigration bill,  By Matt Canham The Salt Lake Tribune, December 1, 2011):

Lee and Chaffetz, along with Sen. Marco Rubio, R-Fla., plan to visit soon with Grassley.
"I simply think it is a matter of education and communicating with him," Chaffetz said. "The only way to even get one of these visas is you have to demonstrate that there is no American who has applied to fill that job."
There is a three-word reply: "Cohen and Grigsby."
That`s the name of the prominent law firm that made the video series that showed clients how to make use of the many loopholes in the green card process (and in H-1B as well, since both programs have the same loophole-riddled prevailing wage provisions). Recall the infamous remark by the partner in the firm who served as "MC" in the videos:
And our goal is clearly, not to find a qualified and interested U.S. worker. And you know in a sense that sounds funny, but it`s what we`re trying to do here. We are complying with the law fully, but ah, our objective is to get this person a green card, and get through the labor certification process.
The partner`s remark here succinctly explains why Chaffetz`s statement above is either egregregiously naive or egregregiously deceiving (take your pick). Then there is also the even more succinct statement by Joel Stewart, the attorney who literally wrote the book on the green card process: "Employers who favor aliens have an arsenal of legal means to reject all U.S. workers who apply."

So it would be quite interesting to be a "fly on the wall" when Chaffetz and Lee make their "educational" visit to Grassley.

For details on Cohen/Grigsby and Stewart, see:
http://heather.cs.ucdavis.edu/Archive/YouTubeVideosH1B
http://heather.cs.ucdavis.edu/Archive/CohenAndGrigsbyPrevailingWage.txt
http://heather.cs.ucdavis.edu/Archive/JoelStewart.txt

One set of "reforms" to be avoided at all costs would be those that scapegoat the Indian firms, such as the provisions in the Lofgren bill. As I`ve shown statistically, the U.S. mainstream firms abuse the visas too.

I`ve never had strong feelings regarding the 7% per-country caps, but I certainly don`t think they should be dropped on the basis of invalid premises ("We`re losing the innovators!"). And I must note that there is quite an irony here. The 7% per-country caps were placed there for the purposes of "diversity." I suppose it may well be the case that those who did so originally had less than honorable intentions (read: were trying to favor Europeans), but it`s funny that in this day of diversity as a major goal (which I support), there are many in Congress who want this anti-diverse bill to pass.
Norm