United States. Congress. House. Committee on the J.

Legal immigration reform proposals : hearing before the Subcommitee on Immigration and Claims of the Committee on the Judiciary, House of Representatives, One Hundred Fourth Congress, first session, May 17, 1995 online

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ment of Labor reached at the time, was that they were not playing
by the rules and deserved to receive the ultimate sanction, which
is debarment from the program.

Mr. Bryant of Texas. So what you're saying is that the company
with whom they outsourced would under current law be prohibited
from using the various categories for immigrant skilled workers in
the future, and it would put them out of business. But what about
the fact that that company probably had a variety of contracts that
four or five different companies had outsourced with them and
were at that time providing all of them with labor, as well as the
one where they got caught? And what happens with all the others
that are still going on? They can't just go over and interrupt those,
can they?

Mr. Miller. This case has not been resolved; it's still being ap-
pealed by the company. So I don't think either of us wants to judge
the final outcome. But, theoretically, if they were guilty and if the
Department of Labor could sustain that upon the appeal that the
company is making, then, no, the company would not have to go
back and remove their current programmers who are currently in
place. Of course, the Department of Labor is going to fly-speck all
their other contracts and make sure they're being done correctly.
And they would be debarred from bringing anybody else in. Again,
because that is their business — the business of bringing skilled
aliens in and then outsourcing them to companies — ^then in the fu-
ture they're out of business. If I were their banker, I'd be sitting
there saying this is something pretty serious; this isn't just a minor
glitch in their business. This is their business.



118

Mr. Bryant of Texas. Well, isn't it fair to observe that — I mean,
they must have told — let's just take the facts we saw. Let's take it
outside the real case, but just use those facts right now

Mr. Miller. Right.

Mr. Bryant of Texas [continuing]. And those allegations. In that
situation, presumably, the contractor, the labor contractor said he
couldn't get enough Americans to do that kind of work and he had
to have foreigners do it.

Mr. Miller. That is not part of the attestation. You're attesting
to four things. The primary fact you're attesting to is that you're
paying the wages and working conditions to the foreign worker
that are being paid to U.S. workers with the same qualifications
in the same area either that you employ or that are employed by
other employers. There is an objective test for determining that,
and the Department of Labor is the ultimate arbiter of whether, in
fact, you are paying.

And if, hypothetically the Department of Labor says that in Dal-
las, TX, a computer programmer with 3 years' experience should be
paid $50,000, and this company is paying H-lB's $40,000, then the
Department of Labor would say, "You're out of here. You're fined.
You have to pay backpay and you can't continue to bring in H-
IB's."

Mr. Bryant of Texas. Well, the contractor on that show, then,
presumably, is in trouble for not paying the same — not — ^for violat-
ing that particular attestation; is that right?

Mr. Miller. They're in very serious trouble. Again, they're ap-
pealing it, and I don't want to predetermine the outcome of that
appeal. They claim that these were technical violations. Obviously,
neither you nor I know how that's going to come out. I'll also tell
you, Mr. Bryant, that underpajdng H-IB workers this is a big con-
cern to the employer community, too, because there are plenty of
companies out there competing for that job with AIG. It's unfair to
them to go in competing if, one of their competitors has decided
that they are going to avoid the law and not pay their own pro-
grammers what everyone else in the market is being forced to pay.
So it's not only a concern for the U.S. labor force; it's a concern for
legitimate businesses who are coming in and saying, "I'm paying
$50,000 a year because that's what the market demands. Why
should this competitor be allowed to bid for that job when he or she
is paying $40,000 a year?" The provision of the law that Congress
included in 1990 doesn't just "protect the U.S. labor force;" it pro-
tects the legitimate U.S. businesses who need to compete on a level
playing field.

Mr. Bryant of Texas. But you're not — are you telling me that
there's no requirement that there be — that they show that there
was — or that there is not adequate Americans to do the job?

Mr. Miller. For the nonimmigrant categories, with the excep-
tion, I believe, of the H-2 categories, there are no requirements be-
cause these admissions are temporary. The principle has been
under nonimmigrant categories that, again, as long as the people
are being paid the prevailing wage, that the business person will
make a legitimate market decision: do I want to pay the extra
money for transporting someone to this country? Do I want to pay
the immigration fees? Do I want to deal with the cultural diversity?



119

Do I want to deal with the other issues involved any time you bring
someone in from this country, as opposed to hiring someone who
was born and bred in the United States? And one assumes that the
market forces being what they will, as long as you're requiring the
employer to pay the same to the alien worker that you pay to the
U.S. worker, that the U.S. employer has no reason to hire the for-
eign worker unless there is a skill shortage.

I will also tell you that there is a skill shortage in the industry
in question. I don't think that is the basis of your question. What
the principle of law says is, as long as the playing field is level,
then the employer should be able to make that decision for tem-
porary workers. When we shift to the permanent categories, then
employers have to go out and test the labor market.

Mr. Bryant of Texas. Mr. Roberts, would you like to comment
on what we have been talking about?

Mr. Roberts. I would like to add a couple of thoughts here and
submit for the record two items. One is a 1990 article from Chal-
lenge magazine on the issue of skill shortages, and it says, "There
will be no widespread skill shortages due to technological change
in the 1990's. New technology will require some skill upgrading in
some occupations while actually producing de-skilling in others." I
will submit this for the record, with your permission, because I
think it goes to the issue of skill shortages.

This other article from the Wall Street Journal of March 17,
1993, says, "The professional class in America is facing the same
kind of job erosion from global competition as the working class, al-
though it is not yet as severe. U.S. companies are increasingly hir-
ing highly skilled workers in Asia, the former Soviet block, and Eu-
rope to perform jobs once reserved for American professionals or
they are temporarily importing these foreign professionals to tackle
demanding tasks in the United States." That's the end of that
quote.

I think the point that I want to make here is that, yes, we do
have global competition, but we also have a problem of a search for
foreign workers, highly skilled professionals, who can do better in
the United States, but when they are brought here they are paid
less; their wages and working conditions are frequently less than
those of American U.S. citizens or U.S. workers in an assortment
of professional categories, including science and engineering.

Mr. Bryant of Texas. Let me ask Mr. Roberts one question.
Should we have attestation for the H-IB program?

Mr. Roberts. I'm sorry, could you repeat that?

Mr. Bryant of Texas. Yes. Would you — ^yes. I asked that a mo-
ment ago. Should they have to prove they made a search for Amer-
ican workers before they're allowed to bring in temporary workers?

Mr. Roberts. There is a requirement not only to recruit domesti-
cally, but also to give some evidence — and I think this is an impor-
tant thing — to produce some evidence of effort to engage in edu-
cation and training to solve a so-called skill shortage. Now having
said that, I think the Labor Department has been conducting an
investigation to see whether, in fact, do the employers who are ap-
plying for these visas are actually conducting the required recruit-
ment effort and conducting the education and training efforts.

Mr. Bryant of Texas. Thank you.



120

Mr. Smith [presiding]. Professor Martin, let me start off and ad-
dress my first question to you. Do you feel that there is currently
a labor shortage among agricultural employers?

Mr. Philip Martin. Well, the agricultural labor market, as you
know, is diverse. It varies by commodity, area and other factors.
There is no evidence of any general labor shortages in the farm
labor market. There still are some commodities which have been
able to satisfy the Department of Labor that there are shortages,
and so they're bringing in temporary legal foreign workers via the
H-2A programs. But, no, I don't think there is any evidence of any
general farm labor shortage.

Mr. Smith. Let's assume that in the next few years there is bet-
ter enforcement of our laws, discouraging illegal aliens from enter-
ing the United States. Would there be any need for a guest worker
program?

Mr. Philip Martin. Well, that raises the tradeoff question, which
is also applicable in the discussion we just had. There's clearly a
tradeoff between training Americans to be programmers and bring-
ing people in from other countries to do the programming. The
easier we make it to bring people in, the less incentive there is to
do the training here.

Exactly the same thing is true in agriculture. The easier we
make it to bring people in, the less incentive there is to search for
alternatives to migrant workers to produce the crops. One thing to
bear in mind is since IRCA was enacted, the size of the labor-inten-
sive agricultural sector in the United States has expanded, and it's
expanded significantly, and it's expanded in areas where there are
not now, and are not likely to be. United States or any other work-
ers living nearby and available to harvest those crops, whether it's
in southwestern Florida or in the foothills of California, or in parts
of Washington. Therefore, there will be a need for workers or those
people who have already made those investments will lose those in-
vestments. Therefore, if there is enforcement, there will be pres-
sure to import people, so that those investments are not lost.

So in the answer

Mr. Smith. Then the question becomes whether it's better to im-
port people or grow our own, so to speak, encourage our own na-
tives to seek those jobs.

Mr. Philip Martin. Or the question is: What signal, what adjust-
ment process, do you want to have? I mean, I think even among
farmers, many farmers, there is a question as to how much longer
the system can keep expanding in a manner which assumes that
there will continue to be migrant workers available. On the other
hand, there's pretty much unity, also, as you well know, to not
make the adjustment cost to either a legal farmworker system or
to a more restrictive immigration system very high. And, once
again, that's a tradeoff that somebody has to sometime confront,
because the problem won't resolve itself on its own.

Mr. Smith. Right. I understand. That's one of the problems, of
course, we face as a subcommittee in drafting legislation.

You stated that the Immigration Act of 1990 "wound up becom-
ing a Christmas tree in which the numbers for almost all cat-
egories of immigrants were increased." What do you feel that the



121

national interest should be by which we judge our immigration lev-
els or by which we judge our immigration admits?

Mr. Philip Martin. I'm not sure. Each of us has, I'm sure, our
own definition of national interest, but I guess what I was getting
at in that statement was this: We started out saying in the late
1980's we wanted to increase the proportion of immigrants admit-
ted for economic reasons, and especially skilled immigrants for eco-
nomic reasons. We wound up increasing the other categories as
well, so that the economic percentage still wound up being fairly
low.

And, as an economist, I guess I think the original motivation in
creating that legislation was probably correct, but I think that in
that instance we didn't make the tradeoffs that would have been
required in order to get the economic percentage up. Unlike the
other immigration countries, as you know, Canada and Australia,
there is a greater emphasis placed on economic selection. Now it's
also true, I might add, that just because people come in under the
family category doesn't mean they don't have economic skills and
economic impacts.

Mr. Smith. Right.

Mr. Philip Martin. But it's a matter of what the aim of the se-
lection system is.

Mr. Smith. And, as you know as well, in the case of Canada and
Australia, they make it easier for a lot of individuals to gain entry
who are more skilled and who have an ability to contribute more
to producing jobs, for example. And, oftentimes, I think the United
States loses people to those two countries simply because of the
hurdles that we have for particular classes of individuals.

Mr. Miller, let me go to you and also ask Mr. Roberts if he would
respond to this question as well. When we think in terms of em-
ployment-based immigrants, do you feel that the current levels of
employment-based immigrants in any way depress the wage scale
of natives in the United States? And do you feel in any way that
they lead to job displacement among natives? So really two parts
to the question, wages and lost jobs.

Mr. Miller. If you are talking about the 140,000 numbers for
permanent immigrants provided for in the 1990 act, the answer is,
no, they're not displacing jobs, by definition. There must be a labor
certification, which is a restricted type of recruitment process su-
pervised by the Department of Labor, which, if it were up to them,
would never allow any aliens into the country. You must set a
wage and benefit package which is also supervised by the Depart-
ment of Labor. So there can be no displacement by definition. I
would not contend that illegal immigrants, for example, or un-
skilled immigrants don't have some displacement effect, but that's
not the question I assumed you asked.

Mr. Smith. Right, that's true.

Mr. Roberts, before we go to you, Mr. Miller, to follow up on
that — and this is a question I could have asked any of the panelists
who have been here today or might yet testify. We live in a free
market. Why wouldn't we simply allow the free market to deter-
mine what the prevailing wage will be? And why, just to take a hy-
pothetical question, why wouldn't we cut off employment-based im-
migration and allow natives to fill those jobs and allow the market



122

perhaps to pay more to create a demand for particular jobs, the
supply then moving up to equal the demand?

Mr. Miller. Well, let me answer the second one first because
that's easier: Why we don't just close off our borders. Dr. Martin
presumed a simple tradeoff. You import workers or you train U.S.
workers. That's true if you live in a bubble. We don't live in a bub-
ble. We're part of the global economy. As I mentioned in my testi-
mony, programming can be done as easily in Madras or in Dublin
or in Johannesburg as it can be in Texas. This service economy is
extremely mobile. If we just simply say we're going to cut off access
to skilled workers, who are a minor yet a critical part of the work
force, we're willing to give up a fairly substantial percentage of our
lead in information technology and say the Indias of the world and
the Irelands of the world and the South Africas of the world, will
have decided to compete with us head to head, are welcome to that
percentage of the market. So that was my answer.

The first question is: Why don't I adopt the position of the Wall
Street Journal or Julian Simon, that everybody can come into the
country? I would refer back to a lot of what Dr. Skerry was saying
earlier, that we still are a nation state. We have to recognize the
fact we need to control our borders. And simply saying let's throw
every American worker to the wolves, when we know there is dra-
matic differentiation among wage rates around the world, is unfair
to American workers, who are still the majority of the work force.

Mr. Smith. I don't necessarily mean this in a pejorative sense,
but you're basically for the status quo?

Mr. Miller, As I said in my testimony, I don't believe an5rthing's
very broken. It took 25 years to fix what was done in 1965 in the
1990 act. Based on the business immigration categories of the last
4 years, I don't see evidence which says that the business immigra-
tion part of the immigration program is broken.

Mr. Smith. Mr. Roberts, do you feel that the current level of em-
ployment-based immigration is in any way depressing the wage
scale or displacing American workers?

Mr. Roberts. Yes, I do. I know the argument is often made that
the employers are seeking skills that are not available. I think,
first of all, as you had suggested in your remarks, a market, a free
market, presumably, is going to solve that kind of problem by rais-
ing the salaries of those in short supply, and thereby making peo-
ple qualify themselves and encourage changes and switches in our
education process to make sure that we do have the skills.

But there is some evidence — and, again, I say evidence; I cite
this particular Wall Street Journal article, again, which suggests
that the reason that employers often seek alien workers, either on
a temporary or for permanent immigration status, is that they can
get them at a much lower price. They can get them cheaper.

Mr. Smith. Who do you feel is being impacted most adversely by
employment-based immigration, the unskilled and less educated
who live in America or the more skilled and the more educated?

Mr. Roberts. Well, I wouldn't want to say that one group is
being impacted more because both are. I think for the relatively
low skilled and low pay people we have a problem, and this affects
women, black American workers, and Hispanic workers, who are
often at the low end of the pay scale, and to the extent that you



123 ,

have temporary alien workers, certainly, the agricultural H-IA
workers, those are depressing the wages and working conditions of
people at the low skill end, the low pay end, but also at the high
skilled end you have professionals, scientists and engineers. In fact,
we've got almost 30 percent of college graduates working in jobs
that are below their qualifications with jobs that do not require a
college degree. We've got scientists and engineers laid off by big
corporations in this country in their downsizing process. We have
scientists and engineers who are out of work, although they do
have a lower unemployment rate than the general population, but
you still have unemployment for these people.

Mr. Smith. Right. Mr. Roberts, my last question is, if the employ-
ment-based immigrants are leading us in the direction of depressed
wages and displaced workers, would not immigrants in other cat-
egories, perhaps those under the reunification, also be having the
same impact?

Mr. Roberts. I think that's an issue that needs to get more at-
tention and more study because we don't really have a good fix on
what happens to the people who come in under family unification
procedures. We don't know as we should where these people fit into
the labor market, and I think it would be very desirable to get a
better fix on that.

Mr. Smith. OK. Thank you, Mr. Roberts.

Mr. Becerra.

Mr. Becerra. Thank you, Mr. Chairman.

Mr. Miller, let me see if I c£in ask you a couple of questions to
begin with. There's always the concern that's expressed out there
that to bring someone in with a skill will deprive someone of a job,
and although there is a labor certification which requires there to
be some proof that, in fact, we're not displacing an American work-
er, how do we address the television programs, the — I've forgotten;
was it "20/20" or

Mr. Miller. "48 Hours," right.

Mr, Becerra [continuing]. "48 Hours," right, where they make —
where they show this report where we are hiring or some American
companies are hiring individuals to fill jobs where Americans could
have the skills and could take those jobs. How do you — how do we
address that particular fact?

Mr. Miller. Well, I never want to take on "48 Hours" and Dan
Rather, but I think there are several important factors to keep in
mind. I guess I would — part company with my friend, Mark Rob-
erts, here. The fastest growing part of the economy is, in fact, the
computer and services economy. In fact, it's growing something like
10 or 12 percent a year. And the fastest growing wages of any sec-
tor of the economy, now that the health care field has begun to con-
tract a little bit, is also in that field. And so what we are seeing
are short-term spot labor shortages simply because the field is sim-
ply exploding.

Now it's tough when you say to somebody who has been working
for a company for 10 or 15 or 20 years, has a couple of kids in col-
lege, has a mortgage to pay, 'Tour skills are not the skills that we
need right now and you haven't kept up your skills" or "We've de-
cided to outsource the whole function because we don't think we do



J



124



it very well, and the company that won happens to have a certain
percentage of alien labor."

But let's keep some numbers in mind. We get a little myopic sit-
ting in an immigration subcommittee. We're talking about an in-
dustry that employs about 6.5 million people. The number of H-
IB's who come in annually in the computer area, the best estimate
we have is about 10,000 to 12,000. A microscopic number. I can't
even do the percentages; the^re so small.

That means that some employers have taken the opportunity, be-
cause of short-term skill shortages, to deal with the fact that we've
changed from a mainframe computer industry to a client served
and PC-based industry, and some people don't have current skills.

Mr. Becerra. Let me stop you there and ask Mr. Roberts to
maybe respond. And tell me, if, in fact, we have a system where
we could have good checks, where we're making sure that we are
not displacing available American workers from a job, would it be
your position that we should still not have labor-based, employ-
ment-based immigration?

Mr. Roberts. We're not saying eliminate all emplojonent-based
immigration, but we are sa3dng be much more careful and much
more restrictive on this. Let's make sure that they are genuine
shortages and we are very, very skeptical of this idea of shortages
because over the years in a variety of fields, unions have observed
employers pointing to shortages which often reflect an unwilling-
ness to pay what would bring skilled and qualified people into the
appropriate market.

So we're not opposed to all employment-based immigration, but
we do feel that there certainly should be some overall restrictions
and numerical restrictions, and there also should be a time limit.
I mean, there should be some 3-year time limit on the temporary
employment-based immigrants, and we are also very, very much
concerned about effectively enforcing the recruitment, education,
and training requirements.

Mr. Becerra. So I think I hear you saying that if we had a bet-
ter way to scrutinize that process of allowing people to come in
under the employment-based category, that you would not be op-
posed to it because it would do the best job of identifying those cat-
egories of jobs where we really do have a shortage that cannot be
met in the short term? I hope that's a yes-or-no answer.

Mr. Roberts. That is correct. I do feel it appropriate to add a
strong caveat, a strong warning, that the procedures are open to
abuse. I mean, we've seen that in the nurses' program

Mr. Becerra. Let me move on

Mr. Roberts [continuing]. And we've seen it in other programs.

Mr. Becerra. Let me move on on that particular point about
abuse of the procedures. And, Professor Martin, if you have any
comments at any point, please join in.

Mr. Martin — I mean, Mr. Miller — excuse me — do you believe at
this stage that we could say that there's abuse of the procedures
that allow certain categories of immigrants or nonimmigrants to
come in to fill jobs, and if so, is there something you can rec-
ommend to us that we look into to try to strengthen our enforce-
ment and our selection process?



125



Online LibraryUnited States. Congress. House. Committee on the JLegal immigration reform proposals : hearing before the Subcommitee on Immigration and Claims of the Committee on the Judiciary, House of Representatives, One Hundred Fourth Congress, first session, May 17, 1995 → online text (page 15 of 30)