To Reform H-1B, Let’s Talk About Ethnic Discrimination by Employers

While I would like the H-1B program shrunk to about one-tenth of its current size, there are smart ways to approach the problem and less-smart ways.

One of the latter seems to be in the air — let’s cut all extensions of stays in the program, according to this McClatchy news story.

Since most H-1B workers in the country are on H-1B extensions, usually of three years, this would in a few years reduce the number of H-1Bs in the country by more than 70-75 percent as their visas run out. While I am for drastic action, this proposal does not put our best foot forward.

The argument of the good guys, of course, is correct — these workers are taking American jobs — but a general no-extension policy would create a firestorm of opposition and there would arguments (despite facts to the contrary) that there is a shortage of high-tech skills in the United States and that such a change would reduce economic activity in the States, cause the loss of other jobs to American workers, and the like.

In other words the proposal would be discussed in terms of economics, skills shortages, or the lack of them, and similar business-oriented terms.

Let’s change the dialogue and simultaneously remove thousands of smaller H-1B employers from the arena. Let’s talk about the raw ethnic and gender discrimination, which is part and parcel of the H-1B program. Let’s make this a civil rights issue, the rights of Americans to have American jobs, and of women to have them, too.

My proposal: No employer with more than 100 H-1B employers may secure the H-1B extensions they want (with certain rational exceptions) unless their H-1B work force contains no more than 25 percent of the workers drawn from a single country, and a 40 percent female work force in the H-1B occupations.

The rational exceptions: Any employer wanting an H-1B extension for a woman, or for a worker other than from the nation of origin favored by the employer (typically India) would get that extension.

So we would not be denying all extensions (attractive though that would be), we would be only denying extensions to large-scale employers of H-1Bs who currently discriminate on the basis of ethnicity, gender, or both.

Only the discriminators would be denied extensions.

In the future, extensions for the previously favored workers would be available to the employer once the nation-of-preference ratio fell to 25 percent and once the participation by women reached 40 percent. There would need to be a system of credits should the employer replace H-1Bs with U.S. workers (who would have to be paid at least 110 percent or more of the wages of the departing H-1Bs.) I have not yet worked out a mechanism for that requirement.

The discrimination being discussed, as we reported earlier, is not just in favor of people from India, it is not just in favor of males from India, it is not even discrimination in favor of young males from India, it is discrimination in favor of young Indian males from a few states in the south of the country. Many big H-1B employers have more than 97 percent of their H-1Bs from India; a few have even higher percentages of Indians.

This 25 percent requirement would force those using massive numbers of these young Indian males to say that the “best and brightest” come from only a sliver of the world, and that the existing discrimination in favor of those young Indian males was in the best interest of the American economy. That puts the exploitative H-1B employers in a truly awkward position. It will be harder for them to defend their discriminatory practices than simply making the tired old pitch that Americans really can’t do high tech work.

Given the current hiring practices of so many big H-1B employers, the number of extensions granted would be minimal and program as a whole would shrink, but only for those big employers who are currently discriminating.

This suggestion of mine would set off loud voices from New Delhi, who will decry what they regard as discrimination against their people; what it will be is the lessening of pro-Indian discrimination in this particular part of the economy.

The 25 percent requirement will not eliminate discrimination. It will simply put a lid on it; from now on, we would be saying to the big employers, you can no longer discriminate 100 percent of the time, as you have been doing, you can only discriminate 25 percent of the time.

What could be more moderate, more reasonable?

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