Judge Rejects H-1B Visa Injunction

theodp writes "Judge Faith Hochberg has denied a preliminary injunction sought by the Programmers Guild to put a hold on a controversial 'emergency' rule change by the Department of Homeland Security to permit foreign students to work continuously in the US for two-and-a-half years after graduation without an H-1B visa. Hochberg indicated she failed to see how an increased labor supply could result in wage depression for engineers and computer workers. That seems disingenuous, since in Andaya v. Citizens Mortgage Corporation, Judge Hochberg recently saw first-hand how a US employer got away with paying an H-1B computer engineer as little as $15,000 to do a job with a 'prevailing wage rate' of $41,000. In that case, Hochberg ruled against Filipino H-1B visa holder Almira Andaya, arguing that 'nonpayment of wages as listed on the H-1B visa petition ... does not raise a substantial question of federal law.'"

Comments

welcome to the country

[pimpimpim]

Welcome to the country of unlimited possibilities ... ... to get ripped off!

Really, both the H1-B Visa holders and US employees are at a loss here.

Protection of the tech jobs market

[yakiimo]

I find it interesting that Slashdotters and the posted articles tend to be quite libertarian on many issues, with one of the exceptions being protection of the tech jobs market. Isn't it a bit hypocritical or am I missing something?

Re:Protection of the tech jobs market

[Timothy Brownawell]

I find it interesting that Slashdotters and the posted articles tend to be quite libertarian on many issues, with one of the exceptions being protection of the tech jobs market. Isn't it a bit hypocritical or am I missing something?

What you're missing is that open borders are more libertarian than the H-1B system, which supposedly serves to create an underclass of workers with much less leverage to get reasonable (compared to other people here) pay.

Re:Protection of the tech jobs market

[goodmanj]

I'd mod parent down, but I'd rather explain why I disagree. In what follows, "you" refers to "libertarian Slashdotters", not necessarily to the parent.

You say "open borders are more libertarian than the H1-B system", which is true, but a generous H-1B program would mean a more open border than what we have now. The grandparent is correct, that it's hypocritical to oppose a step in what you claim is the "right" direction.

You say a generous H-1B program would "create an underclass of workers" -- but a truly open border would be even worse in this respect, since it would drastically increase the number of U.S. resident programmers willing to work for bottom dollar.

And the elephant in the room here is that visas are irrelevant in this case. I can't think of a job that can be more easily offshored than computer programming. If you tightly restrict immigration of programmers into the U.S., they'll all set up shop in their home countries, where they can charge even less due to lower cost of living.

And if you as a programmer don't think you're going to be seriously competing against China- and India-resident programmers in a few years, you haven't been paying attention.

I say, open the borders, let everybody in, in every profession. It'll depress our wages, but at least it'll keep immigrant workers spending their money in *our* economy, and hopefully some of them will decide to become citizens and come to expect our standards of living.

Re:Protection of the tech jobs market

[Anonymous Coward]

I've heard that some companies are finding that the language and time-zone barriers involved often make this totally not worth it.

Because they're doing it wrong. You need to outsource the project management and a level of QA too, you can't go half-way.

Once you've got enough that they can effectively run the project on their own time in their own language, all that's left to do in the States is a final QA check to make sure what was created matches the requirements.

Programming isn't magic. There's nothing about it that makes US programmers better than foreign programmers. If you've been paying attention to the US school system, you'd notice that there is quite a lot that makes foreign programmers superior to US programmers. There's a reason most Linux programmers aren't from the US.

Re:Protection of the tech jobs market

[Bombula]

I say, open the borders, let everybody in, in every profession. It'll depress our wages, but at least it'll keep immigrant workers spending their money in *our* economy, and hopefully some of them will decide to become citizens and come to expect our standards of living.

Caught between a rock and a hard place. If we employ protectionism, jobs will get offshored and that screws us by putting downward pressure on wages at home. If we open the borders, the downward wage pressure is the same and we're screwed. Either way, we're screwed. You're right that having people here keeps more money in our economy, but that's like saying, "well they put a boot in our ass but at least it wasn't a steel-toed boot."

Basically, thanks to globalization and the world being 'flat' and all that, our standard of living is going to get reduced to the lowest common denominator worldwide one way or the other. So, we're fucked, because as long as we adhere to a growth-based economy and as long as population worldwide is growing, we're headed inexorably toward a standard of living like India and away from one like, say, Iceland. Viva la globalization!

If there's any solution, it probably involves draconian protectionism. Protectionism usually hits rich people hardest because it fucks big companies (small companies serving local markets do OK without globalization), so as long as the rich and the big corporations control our politics it ain't happenin.

Re:Protection of the tech jobs market

[goodmanj]

Or to put it another way: to make stuff, you can either bring the workers to where the factories are, or vice versa. US immigration policy prevents the labor from moving ... so the factories move to where the labor is.

It's futile to restrict labor while allowing free flow of goods.

Tech jobs are an extreme case: there are no raw materials, there is no factory, the products are nothing but data bits. Moving the jobs elsewhere is a piece of cake, so restricting immigration is utterly pointless.

Re:Protection of the tech jobs market

[GBuddha]

It's not as if the groups that oppose the H-1B program (Programmers Guild, NumbersUSA, etc.) by calling it "indentured servitude" are advocating for improvements in the Employment Based Immigration system (a.k.a. Green Card) where someone from India and China could have to wait for 6-10 years to get a Green Card. They've opposed all immigration reforms that would bring relief to the estimated 500K - 1 million people stuck in the backlog.

It's nice to throw in terms like "open borders" to voice your opposition to the H-1B program, but without any support for reform in the EB immigration system, it's just plain old hypocrisy to mask your true protectionist agendas.

Re:Protection of the tech jobs market

[hairyfeet]

The problem with the H1-B is sh*t like this. The WHOLE POINT of the H1-B program was so that when the US had a SHORTAGE of skilled workers in an area of expertise the H1-B would be a CYA until our schools caught up with supply and demand. Instead it has been perverted into a way to turn jobs that require a college degree into McJobs that no American can afford thanks to our high cost of education.

Actually,if you think about it,it is a lot like another popular slashdot subject,copyrights. The copyright laws were originally written to fill an important role: to allow the small playright or musician a LIMITED amount of time to earn money from his creation,in order to encourage him/her to create more and add to our public domain. Just like the H1-B,the corporations perverted it into an unlimited source of revenue creation.

I have NO problem with bringing an Indian over here when we have a SHORTAGE in a field,just as I have no problem with a 15-25 year copyright to allow creators to profit from their creations. What I DO have a problem with is having to try to compete on my own soil with a guy who can live on $15K thanks to his low cost of education while mine will cost in the end nearly $100K,just as I have a problem with my great grandkids being dead before they'll ever see Steamboat Willie end up public domain. But as always this is my 02c,YMMV

Re:Protection of the tech jobs market

[hairyfeet]

Actually the problem is more and more companies are using "How NOT to hire an American" as a damned blueprint. Just looking in the want ads the other day I saw ad after ad like this "Ten years of Java exp required,MSCE required,C++ cert required,ten years exp required in GUI design." How much were they paying for all that experience? $19K. There is NO WAY in hell any American could live on 19K with the amount of debt required to get all those degrees and certs,and they know it. Which is of course why they do it. Then they can bring an indentured servant over from India and treat him like dirt for $19K because if he complains he is on a boat home.

Again,I have NO PROBLEM competing on a fair and level playing field,but that isn't what we got. What we have is the pee wee football team(us) going up against the Denver broncos(them),and the Broncos are allowed to play without penalty. Our companies just can't dump toxins in the river and poison everyone,their companies can,so we can't compete. Likewise we have to pay 100K+ for our education,with the costs going up every day. They pay less than 1/15th what we do for an education,therefor we simply can't compete.

My guess is after the economy collapses because there isn't enough money in the world to deal with the debt we Americans have to take on just to get ahead(I know I'm looking at 85-95K just for my education,not counting the certs I'll need to add) we will probably lock down the borders and go through another period of isolationism. because we simply can't sustain the giant black hole which is the product of all our money leaving this country with less than 1/100 of it ever coming back. But as always this is my 02c,YMMV

Re:Protection of the tech jobs market

[hairyfeet]

Like what,be a dope dealer? Be one of the five bazillion lawyers we are turning out now? if all the jobs that require a strong back are done by illegals,and all the jobs that require a college education are taken by H1-Bs who can work for pennies,what exactly does that leave? They are already bringing H1-Bs to replace nurses,so what,exactly,is left? Are we all supposed to write songs so we'll have IP to sell?

Let us be honest here,and I'm not trying to be snippy or flame,simply trying to point out the fallacy in yours and the "get your education in India" guy. Do you HONESTLY believe that if Americans were to start massing over there,be it India OR China,that they would welcome us? Do you HONESTLY believe that the SECOND that it looks like immigration is a threat to them that they wouldn't shut us out?

What we are seeing in this country now is the total destruction of our middle class and "working to get ahead",nothing less. Up until now if you worked hard and got an education you did better than your father before you. Now you work hard,you see what jobs are in demand,you get an education in that field,and before you even graduate the jobs that were paying 60K are now being done by a slave for 15K. Tell me,without some crazy slogan like "We should all pack up and move to India",how we are supposed to compete with someone who has to take whatever crappy conditions and pay his employer can come up with or he is thrown out the country. Tell me honestly,how do you compete with that? Just a few years ago we were seeing "tech jobs will soar" and "tech jobs will replace the jobs lost by offshoring". Are you going to authorize the government to pay off ALL the students loans since they listened to what our government and our politicians were saying and got an education in technology?

The simple fact is the giant multi-national corporations want EVERY job,except CEO and lawyer of course,to be a McJob,so they can pay the same wages your average burger flipper gets and make record profits. HEY,I bet it is a LOT cheaper for a law degree in India,we can lower prices by a LOT by bringing lawyers from there over here! Try that and see how quick it gets shot down. Why,because the congress and senate are filled up with lawyers,that's why. I bet we can get CEOs much cheaper too! Never happen. Just good old fashioned corporate greed at its most disgusting. I honestly hope we turn it around,but I just don't see it happening.But as always this is my 02c,YMMV

Don't complain

[HangingChad]

a controversial 'emergency' rule change by the Department of Homeland Security to permit foreign students to work continuously in the US for two-and-a-half years after graduation without an H-1B visa.

A good percentage of you here on /. voted for those chuckleheads. So big surprise when they turn around and dick you by making it easier for your employer to replace you with someone making cardboard slum wages. And even if the next president cuts it off the day they take office, the people already here will be able to stay to middle of their term.

Nice.

Funny how the rules on the war on terror manage to line up with corporate interests, isn't it? Just hilarious.

Re:Eliminate the H1-B

[Anonymous Coward]

As at IT professional, I hate the H1-B Visa program and want to see it eliminated. This judge is a complete idiot. Just because a person is from India or Bangladesh does NOT make that person a better IT worker.

Do you hate me too, or only people from India and Bangladesh?

(I'm in the process of getting an H1-B visa, but I'm white and British - so does that make it okay? Or are you opposed to all foreigners? I thought the USA was founded on immigration, you know...)

Kick all immigrants out...

[deadmongrel]

This says it all: http://img367.imageshack.us/img367/7628/helppack8hw1oh.jpg

FAIL!

[danwesnor]

People who pretend to be the media should be cautioned against editorializing new facts into existence. Show does not say:

she failed to see how an increased labor supply could result in wage depression for engineers and computer workers.

She says:

in no sense could "wage depression through the economic forces of supply and demand" rise to the level of justiciable injury, rather than the "conjecture or hypothetical."

Instead of assuming the judge is an idiot, why not favor the much more likely scenario that the suit failed to show how the plaintiffs would be harmed and to what degree. They are claiming they are would be harmed by having their salaries reduced, when in fact they are "employed" or "underemployed". You can't claim you'll be harmed by having you salary reduce if your salary is already zero. It is not the judges job to "see" how harm could be done. It is the plaintiff's job to demonstrate how harm will be done. If they cannot do that, the judge's hands are tied.

Re:Eliminate the H1-B

[jcr]

I thought the USA was founded on immigration, you know

It was built by immigrants, but strictly speaking, it was founded on tax revolt. We didn't like sending payment to England just because you were trying to pay for the French and Indian war.

-jcr

Re:I think you're missing the point

[Anonymous Coward]

H1B visa holders can quit and change jobs at will.

Sounds like you are not applying for a green card. Most H1B visa holders are looking for green cards. The process takes at least 3 years - probably more now with all the DHS bullshit. In order to get a green card, your employer has to sponsor you. If you change jobs, that means you change employers which means starting the green card application process all over again. Since H1B visas (last I checked) can only be used for up to 6 years max, changing employers after the first year or two puts the green card at risk. Once the H1B visa expires, all green card application paperwork is terminated.

DHS? WTF?

[PPH]

The Department of Homeland Security makes a rule change to allow additional foreign workers in the engineering and software fields. No doubt they see areas such as telecommunications, security, aviation and DoD work as being low risk. But try to get some Mexicans in here to pick lettuce and we have to build a wall to stop it.

I understand US industries motivation in this area. But aside from the DHS reviewing proposed visa procedures, I can't understand why they should be the ones to sponsor such a regulation. This would seem to fall more within the charter of the Dept. of Commerce. If DHS has no security work to keep it busy, perhaps its time to pull the plug.