H1B VISAS - THE NEED FOR REFORM NOW!

By G. Michael "Mike" German, Esq.

• H1B VISAS - THE NEED FOR REFORM NOW!

Here is how I would do so. Like so many government-engineered social programs, the H1B and L1 visa programs were doubtless undertaken with the best of intentions. However, even their foundations seem ill-laid. From the materials I have studied, I doubt that a serious shortage of tech, or any other sort of, workers ever actually existed. Instead, the figures appear to have been manipulated by corporations looking to lower labor costs by importing cheap labor, exporting their jobs outside the US to take advantage of cheap labor, or a combination of both schemes. In some cases, to my disgust, I was disappointed to see some corporations hint at threatening to take their business elsewhere if not given what they perceive as the "right" to engage in either of these employment practices proving so disastrous to American citizen workers, whether native born or naturalized. Indeed, naturalized American citizens are just as adversely affected by these abuses as are native ones.

The privilege of doing business in America under a corporate charter and with the benefits of the US tax laws is just that - a privilege. Legally, there is no "right" to be incorporated or to enjoy US tax benefits. It is not demanding too much to require that corporations expecting to avail themselves of these benefits remain U.S. corporations. That means they are not just paper corporate citizens, but actual ones who employ U.S. citizens, do business here and do not threaten to move elsewhere if they are legitimately held accountable for abuses of our laws. While this in no way is intended to deny corporations their right to expand their businesses overseas, their desire for expansion cannot be permitted to serve as a mask for displacement of American citizen workers at home. Where corporations do so, their corporate charters and tax treatment merits investigation and, where necessary, reassessment, revocation or penalties.

That is the general proposition, but there are more specific concerns. First, the lack of real teeth against corporate abuse of these two programs requires a remedy. Instead of violations being a complaint-driven process, an active enforcement team needs to be established to respond to, investigate, track and coordinate legitimate complaints of abuses. While the Bar can take the initiative in many of these cases by prosecuting them on a contingency basis, particularly where they involve, as many appear to, instances of age discrimination, that is not enough. I believe that abuses of these two programs need to be armed with at least the same armory of regulatory and prosecutorial weapons that sex and disability discrimination cases have at their disposal, including remedies for recovery of both attorneys fees and punitive damages by successful plaintiffs. As a former plaintiff's personal injury lawyer, I know that no lawyer worth his or her salt would willingly turn down a case coming to him on the silver platter of a government-established violation. (Compare, the willingness of many large corporate law firms to handle so-called "pro-bono" work on behalf of convicted felons, defaulting tenants, petty criminals and others undeserving of free legal representation, while ignoring the legitimate needs of people like laid-off workers suffering the abuses of H1B and L1. Next time you look for a lawyer, ask what kind of pro-bono work he or she does on your dime or dollar - and make your choice of counsel accordingly.)

Second, establishing the "need" for importing H1B and L1 workers should not be the responsibility of the corporations who stand to - and have! - benefit from their self-established need, but of an impartial factfinder, whether governmentally or privately and independently based. As is it now, the fox is not just guarding the henhouse, but building it - and what shoddy construction it is! Checks must replace the cracks in the construction to ensure that where H1B and L1 workers are legitimately employed they are being paid what their applications said they'd be paid, with penalties to both the employer and employee for any variances found from the prevailing or agreed-upon wage, whichever is higher. Corporations seeking to employ these workers must be required to demonstrate their actual need for them under a higher standard of proof than the relatively lax, self-defined one now in effect. And the "walk-on-water" rule of Sec. 412 of ACWIA must be permanently plugged.

Third, to help those who have been displaced NOW, training and workforce reintegration programs must be adequately funded and operated. That does NOT mean dumbing down intelligent tech workers to assume less skilled or challenging jobs than those they performed so well for so long in so many cases. Nor does it mean using money originally targeted for training to go to facilitating imported workers' access to Green Cards, thereby mindlessly exacerbating this problem. It means real training and what I'd call "internal reintegration," i.e., establishing a system for displaced workers to regain their prior jobs once the need for their replacements, if ever even legitimately established, has ended.

Fourth, the serial amnesties granted to illegal immigrants, whether individually or en masse, must end - and any suggestions that they should be granted in the future under another name must be forgotten. Illegals do not arrive in this country with a clean start; their initial presence is a violation of law and a slap in the face of every legal immigrant who waited his or her turn to acquire the privilege of American citizenship. Illegal immigrants must be deported swiftly and justly, and where INS regulations need to be revised in this area I will work to revise them. Again, I reemphasize that I am NOT in favor of barring all immigration, only illegal immigration. There is a huge difference between the two and don't let anyone convince you otherwise, whether through legitimate logic or illegitimate appeals to emotions.

Finally, oversight over this problem must be maintained by providing for ongoing Congressional investigation, fact-finding and reporting on the impact and effects of these two programs. And those impacts are not just economic; they go directly to undermining the stable workforce and culture we have built up in this country. No discussion of or remedy for this issue can be complete without considering what we are sacrificing in terms of our long term national identity for short term corporate gain.