Shah's experience is that the wage estimates in the CIS report err on the conservative side. "I am an Indian American with a lot of family members who have been brought to America on H-1B visas," she said. "The salary discrepancies they experienced compared to the prevailing American labor market were far in excess of $13,000 — closer to about $50,000. In some cases it was even more than that."

For employers who abuse the program, it isn't strictly about salaries — it's about exercising ultimate control over their work force. "The H-1B visa defeats at-will employment," said Shah. If an American finds a higher-paying job, he or she can pursue the opportunity. But an H-1B visa worker is tied to the company that sponsored the visa, with no legal recourse. The employer controls the worker until the end of the visa's term. "The salaries are just one aspect of it," Shah said. "The idea of an indentured work force is the primary benefit."

John Miano, author of "The Bottom of the Pay Scale, Wages for H-1B Computer Programmers" report from CIS, an immigration think tank, said the program is generally discussed at a very superficial level —
the focus is on the need for "the world's best and brightest to come to the United States," he said. But according to Miano and Shah, a closer look at who is actually coming in on this program suggests that it's not the world's best and brightest.

The report lists consultancies, known as body shops, that hire thousands of H-1B workers to perform IT or back-office tasks for U.S. companies on a contract basis, said IEEE-USA's Hira. Though paid by the body shop, the visa holders work on a daily basis in the contracting company's facilities. Furthermore, to depress the prevailing wage even further, the body shops do not employ American workers at all. These consultancies protest lowering the cap on the H-1B law as a hindrance to trade, said Hira.

On Miano's personal Web site, www.colosseumbuilders.com, he lists the lowest-paying employers of H-1B computer workers with more than 100 visa workers in fiscal year 2004. More often than not, he said, these H-1B workers have no actual assignment when they enter the United States as a body shop employee.

Aiming at body shops and other abusers of the system, Pascrell's bill builds in support for program enforcement. "I want to give the Department of Labor some teeth and power to go after these companies that are making a sham of the law," he said. 

The right of private action detailed in the bill is designed to strengthen safeguards for workers affected by the H-1B program. "No matter how much you reform the visa, and no matter how much government monitoring may be set up, you still have to give power to the people," Shah said. "You have to give both American citizens as well as these H-1B petitioners the ability to stand up for themselves in a civil court. That ability to counter any mistreatment will be the greatest deterrent of ongoing abuse by a company." When it is no longer profitable, she said, the incentives for abusing the visa program will be removed. "The only way you can do that is by way of civil action," said Shah. "It wasn't the equal-rights amendment that made women equal in the workplace. It was when sexual-harassment lawsuits started getting judgments in the millions of dollars that you started to see sensitivity training. Until that point, 'boys will be boys' was the prevailing attitude. Right now, 'Americans get displaced, and foreigners are underpaid' is the prevailing accepted attitude."

Meanwhile, other factors may be damping enthusiasm for H-1B workers. "I have seen a decrease in the number of H-1B workers being hired," said Nanci Brewer, human resources consultant at Wine Country Consulting. "Since 9/11, the high-tech recovery has been slow, and only this year have we started to see a bit of a boom in hiring again." Although "there remains a healthy number of U.S. workers available," she said, "for some high-tech companies who need specialized EEs, foreign nationals are still one of their main options."

Brewer said she has not seen abuses in H-1B hiring or wages. "In my experience with clients and employers, the pay rates for H-1B employees have been based on the exact same criteria as other hires," she said. "I have primarily worked with small- to medium-size companies, so maybe they've just been much more ethical than those [in the CIS report]. It is my experience that here in the Bay Area, H-1B workers are as valued as others."

Norman Matloff, a professor of computer science at the University of California at Davis, wrote a seminal work on the subject, published in the University of Michigan Journal of Law Reform. H-1Bs save employers money in two ways, he said.

So-called "Type I savings" occurs "when an H-1B is paid less than an American of the same qualifications, i.e., same experience, educational level and so on," Matloff said. "Type II savings are incurred by hiring a younger, thus cheaper, H-1B [worker] instead of an older, thus more expensive, American. Everyone talks about Type I, and it is of course very important, but Type II is typically overlooked."

The wage inequities cited in the Miano report reflect a mixture of Type I and Type II salary savings, Matloff said. "What that really means is that unemployed Americans are being rejected as overqualified while H-1Bs are hired," he said. "What that shows is that the 'labor shortage' claimed by the industry is in fact a shortage of cheap labor, not of qualified American workers."

Miano, who wrote the CIS report, believes the H-1B program is in need of a major overhaul that may entail more than the changes outlined in the Defend the American Dream Act — which he nonetheless supports. "This program has had no reforms whatsoever," Miano said. "The U.S. Congress has been aware of the problem since 1995 and has done nothing about it. Up until this year, the government could not investigate companies on its own initiative for abuse. The only way to track down companies was if the visa holder complained, if they were caught as part of some other investigation or if they had been caught previously" and thus fell into the category known as "willful violators." The Labor Department can "investigate on its own initiative," but doing so requires "personal approval of the Secretary of Labor herself. It's prohibitive," Miano said.

To tighten the loopholes, Pascrell's bill authorizes random audits of visa applications and raises penalties for willful violators. It "would amend the Immigration and Nationality Act to directly address the lenient prevailing-wage requirement that employers are abusing to hire foreign workers at lower wages," Pascrell said.

The bill also triples the fees for H-1B visa processing to $4,500, with the purpose of providing funding for mandatory auditing and enforcement. The bill's sponsors include Reps. Rosa L. DeLauro and John B. Larson of Connecticut, Carolyn C. Kilpatrick of Michigan, Major R. Owens of New York and Maxine Waters of California.

The largest nongovernmental supporters are IEEE-USA and the AFL-CIO. Among the 53 unions that make up the AFL-CIO are the Communications Workers of America and the International Brotherhood of Electrical Workers.

Debra Schiff (debra.schiff@att.net) is a freelance writer based in New Jersey

 

On-line access: (login required):