On February 1st, 1865 President Abraham Lincoln signed a joint resolution submitting the proposed amendment to the the Legislature of the various states. The day before, inside the House of Representatives the final vote began at 3:30pm. Down the roll they went until the last “Aye.” Swift pencils ran up the tallies. The clerk approached the Speaker and whispered the results into his ear. “One hundred and nineteen to fifty-six!” Seven more than two-thirds. The Speaker announced to the House what the audience quickly interpreted to be the mighty fact that the 38th American Congress had abolished slavery in America. An article in the N.Y. Daily Tribune captured the atmosphere: “The tumult of joy that broke out was vast, thundering and uncontrollable. Representatives and auditors on the floor, soldiers and spectators in the gallery, senators and supreme court judges, women and pages gave way to the excitement of the most august and important event in American Legislature and American History since the Declaration of Independence. God Bless the 38th congress.
The work done in securing the passage of this bill has been immense. It has taken the labor of an entire month, night and day, to secure the majority which today so delighted the friends of freedom and of humanity and so astounded the allies of slavery” (New-York Daily Tribune). This bill was the 13th Amendment of the United States Constitution stating, “Neither slavery nor involuntary servitude… shall exist within the United States” (Ontiveros, “Employment Discrimination.”) . It’s hard to believe that the efforts set forth by so many over 150 years ago are still not enough today. As I wait in line for coffee, I pull out a five dollar bill from my wallet. The recognizable face of a stoic Abraham Lincoln stares back unsettled and doubtful in the 21st century. Echoes of slavery and indentured servitude can still be found today in the H-1B visa program.
The United States began the H-1B program in 1990 in the attempt to fill gaps in the domestic labor supply for “specialty occupation.” Initially intended to help American companies bring in foreign, “high skilled” workers when they couldn’t find American workers to fill in positions. Since 2005 the United States Citizenship and Immigration Service (USCIS) offers 65,000 H-1B visas, with an additional 20,000 strictly for foreigners holding advanced degrees from U.S. universities. After the cap is exceeded USCIS stops receiving applications, at which time they are put into a lottery to determine which companies receive visas. For the past five years applications have exceeded the cap within a week of the application period opening. For the Fiscal Year 2014, 70% of H-1B visas were granted to individuals born in India and 8% to those born in China. 72% of these workers were between the ages 25-34. As a whole their median salary was $75,000 annually. The lion’s share of visas, approximately 65% of the visas offered, go to Indian IT service companies. These statistics have been a trend since 2014 (Ruiz, “Key Facts about the U.S. H-1B Visa Program.”).
In order to understand how the H-1B system creates systematic inequality and a subordinate structure, we must first understand the rules of employment under H-1B visas. For a company to acquire a visa they must first file a Labor Condition Application (LCA) with the U.S. Department of Labor and a petition for an H-1B visa with the U.S. Citizenship and Immigration Service. The Department of Labor is responsible for enforcing all rules regarding employment under H-1B visas. The LCA is a public contract that sets terms and conditions between the company and the H-1B worker. On the LCA a company attests, “under penalty of perjury,” that it has a job opening in a specialty occupation; its identified a non-resident worker for that job; that employment of this worker will not adversely affect any American worker; that the H-1B worker will be paid the prevailing wage for an American worker in that position; that the H-1B worker will receive the same benefits as other American workers in that position; that the H-1B worker will not negatively affect working conditions for other workers. A company is granted an H-1B visa from USCIS only after they obtain an approved LCA (Ontiveros, “H-1B Visas, Outsourcing and Body Shops: A Continuum of Exploitation for High Tech Workers.”).
Conditions for wage rates under the LCA makes sure companies pay the H-1B worker either the actual wage rate or prevailing wage rate for the position specified on the LCA. The actual wage rate is determined by what the company pays American workers with similar experience, qualifications, education, job responsibility, job function and specialized knowledge. If the company decides to pay the H-1B worker a “prevailing wage,” it must be specified at the time the LCA is submitted. The prevailing wage can be set by reference to the wages American workers earn in similar positions. The National Prevailing Wage Center is a government resource that sets a rate for companies to use as a prevailing wage. All the same a company can substitute its own survey to set a “prevailing wage,” as long as it’s based on “a survey of wages published in a book, newspaper, periodical, loose-leaf service, newsletter or similar medium”(Ontiveros, “H-1B Visas, Outsourcing and Body Shops: A Continuum of Exploitation for High Tech Workers.”).
An H-1B worker must be paid at the rate specified in the LCA, regardless of whether they perform a different job that could have a lower prevailing wage rate. Similarly an H-1B worker must continue to be paid at the LCA rate, even if they are in a “nonproductive status,” due to the company’s inability to produce work. Additionally the rulebook also prohibits punishing an H-1B worker for quitting before their contract ends. Finally the rulebook contains an “anti-retaliation provision,” this protects H-1B workers by prohibiting companies from “discharging or in any other way discriminating against H-1B workers” that have shared information that a H-1B worker “reasonably believes to be a violation of… the Immigration and Nationality Act” (Ontiveros, “H-1B Visas, Outsourcing and Body Shops: A Continuum of Exploitation for High Tech Workers.”).
The duration of stay under the H-1B visa is three years, extendable to six years. H-1B holders who want to continue to stay in the US longer than six years must apply for and receive a green card. Having a green card switches the H-1B workers status to legal permanent resident. After being under green card status for a number of years the individual can apply to become a US citizen. H-1B visas are primarily a work visa not an immigrant visa. As a work-authorization visa, H-1B is strictly limited to employment by the sponsoring company. Generally this means that the H-1B worker must remain with the company that originally sponsored their H-1B visa. If the H-1B worker decides to quit their sponsoring company, they must find another company with an H1-B opening willing to hire them. Failure to find another position leaves the worker with no legal right to remain in the United States and therefore become deportable.
One of the main arguments for the 13th Amendment was the negative impact that slavery had on the conditions of free workers. A supreme court case involving the 13th Amendment in 1944 explained that it was implemented “not merely to end slavery but to maintain a system of completely free and voluntary labor throughout the United States… In general, the defense against oppressive hours, pay, working conditions, or treatment is the right to change employers… Resulting depression of working conditions and living standards affects not only the laborer under the system but every other with whom his labor comes in competition.” The H-1B worker is subordinated and restricted from the same freedom to change employers and as a result the American worker also becomes subordinated and restricted.
Scratching on the surface of exploitation; Ian Spandow a former Oracle sales manager filed a lawsuit in response to being fired after complaining of discriminatory actions by company officials. Spandow who is Irish performed well as an employee and was promoted several times. In his new role as sales manager Spandow asked for permission to transfer an Oracle employee working in India to California. Spandow was prepared to pay the Indian employee an equivalent rate to what “Caucasian employees hired by Oracle for the same position” earned. However, Spandow’s supervisor denied the request and was told to offer the worker a “substantially lower” amount. Spandow expressed his disagreement over the offer and as a result he received a “stern response” and warning from his supervisor. Spandow decided to raise his concern to his sales director who in return told him the lower salary offer, would be “good money money for an Indian.” An Oracle human resources insisted to Spandow the lower offer was fair. On Dec. 5, 2012 Spandow was fired, only weeks after the dispute over the salary offer. According to the suit Oracle has engaged in a pattern of paying Indian employees less than American employees.
In a separate individual complaint., JAVA programmer, Cherry Chiu arrived from Hong Kong on an H-1B visa sponsored by CGI-AMS. Her first three years at the company were positive, she maintained a good track record, enjoyed her work and was even working with CGI-AMS to obtain a green card. To Cherry Chiu’s misfortune her supervisor changed. The new supervisor treated Chiu poorly, criticised her personality and her English ability. As that dehumanizing year continued she found out her salary was less than what other JAVA programmers at the company earned. When Cherry Chiu complained about her supervisor and her prevailing wage, she was fired and progress on her green card also stopped. Without a sponsor and without her green card Chiu feared going to court on the possibility of being deported.
A big 2014 class action lawsuit against Apple, Google, Intel and Adobe made headlines when they were found guilty of violating antitrust laws by agreeing not to hire one another’s employees between 2005 and 2009. Though it was widely interpreted in the media that the actions actions taken by these industry giants were a way to keep worker salaries down, an underlying force was expressed in emails shared between Steve Jobs and Google’s CEO at the time, Eric Schmidt. In the emails there was an anxious motivation expressed, by Jobs and Schmidt, to avoid the disruption caused by employees leaving a company or taking their intellectual capital to a competitor. Adding to the list of reasons why giant tech companies find H-1B workers are a better option.
UST companies like Apple and Google normally sponsor the foreign worker for a green card as a standard practice. The H-1B worker is basically owned and restricted because leaving the company would mean starting the process all over again – an unthinkable act for H-1B workers who’ve already endured at least three years of the process. As Norman Matloff found in an investigation with a Silicon Valley employer; “while the company tries to prevent American workers from leaving by slowly doling out stock options, for foreign workers the slow green-card process achieves this much more effectively” (Matloff, 91). One expert testified before congress that H-1B workers sponsored by giant UST companies averaged about $13,000 less than the median wage for American workers with the same position and in the same state. This in return has affected the American worker that gets displaced over a cheaper H-1B visa hire. Moreover, the wages American individuals experience stay relatively stagnant year after year.
Many H-1B workers who find themselves in these positions rarely complain about their working conditions or wages. (Notice the lack of individual cases for H-1B workers that have been exploited under this system in the media. Most importantly an H-1B visa holder knows that if they are terminated they lose the legal right to remain in the U.S. This pressure is even more immense for workers getting close to receiving a green card, “visa holders, by the very nature of their situation as workers dependent upon employers for the right to remain in the country… remain less likely to protest against working conditions than their counterparts with permanent resident status.”
A notable characteristic of slavery that existed before the Civil War, was the fact that the slave owners not only owned an individual, physically, but also owned the slave’s time, labor and service. Codes were in place to maintain the slave’s labor controlled. The slave owner and not the slave dictated where or for whom the slave could work. The visa rules create a similar environment as the codes did for slaves. The company who sponsors the H-1B worker effectively controls where, in what position and for how long they work. When a worker does not control their own labor they are not free.
Serious reform is necessary for the H-1B visa program to stop exploiting, both domestic and foreign workers’ ability to bargain their own labor and complain about poor working conditions. In order to prevent H-1B workers from being underpaid and being restricted to their sponsoring company three things must happen. The DOL needs to review applications more closely and the use of company based surveys to determine a “prevailing wage” must be eradicated. Furthermore an H-1B visa holder should be allowed to remain in the United Stated for the three year period even if the company fires the worker or if they decide to quit.
Both American and migrant workers have had to testify in court discrimination in their employment to win suits. For the American worker discrimination has mainly taken the form of refusal to hire and discharge. For the H-1B worker discrimination takes the form of low pay, harassment and discharge. While discrimination is definitely based on race and national origin we need to realize this discrimination is also due to the status of an individual based on citizenship, migrant or immigrant status. Under international law discrimination based on immigrant status is viewed as a human rights violation. We need to amend the law to be consistent with international law. By doing so U.S. companies would no longer be able to prefer visa workers over American workers and they would no longer be able to harass or underpay immigrants because of their status as a visa worker.
It is painfully evident that the inequality and subordination caused by the H-1B program is a violation of the 13th Amendment of the U.S. Constitution. What is less transparent is the violation on an individual’s right to reap the benefits of their individual labor; the violation to the workforce in America; the violation to the honor and bravery of thousands of soldiers who sacrificed their lives to give Americans that freedom; the violation of countless hours spent to draft a bill; the violation to the memory of the 16th president of the United States; the violation of freedom and what America stands for.
