Why Aren’t The H-1B Hogs Satisfied With The O-1 “Extraordinary Ability” Visa?

Ilana Mercer, November 18, 2008

When open-border enthusiasts discover that I’m both an immigrant (from South Africa, via Canada) and an immigration restrictionist, they often order me to go back whence I came, mouthing the mantra about “a nation of immigrants.”

Maybe they’re right. Maybe Obamao’s multicultural America has no use for a contrarian, with an anachronistic attachment to British English style and to the ideas of limited government and self-governance.This scribe’s spouse, however, is a different matter entirely. The scientifically super-smart nestle under the far reaches of the IQ Bell Curve, and are, therefore, in short supply. That their skills make the developed world go around also helps immeasurably to make them highly desirable immigrants.

As Peter Bauer (and Brimelow) has belabored, economic development is not a function of cheap, abundant labor, but of innovation. A superpower, even if it’s on the decline, ought to be emphasizing innovation-oriented, not labor-intense, forms of production. More mechanization and less Mexicanization.

In exchange for the spouse’s exceptional abilities and qualifications, he was awarded the O-1 visa. And we, in short order, gained green cards.

(My daughter was subsequently stripped of hers on a debatable technicality when entering the US from Canada. This took a heroic show of force from the brave, U.S. citizenship and immigration law enforcers at the border. Moral: U.S. immigration law is enforced against people who obey the law. No doubt her hard-won green card was needed urgently for a real Bandido.)

Immigration lawyers have made it their business to navigate the labyrinth of visa programs. According to one such law firm, Houston-based Zhang & Associates, the O-1 visa

“…is a nonimmigrant status category for aliens of extraordinary ability in the sciences, the arts (including the television and motion picture industry), education, business, and athletics. This is an employment-related status that allows qualified aliens to live and work in the United States.. An O-1 petition is sponsored by an American employer.”

More significantly, there is no cap on the number of O-1 visa entrants allowed. Access to this limited pool of talent is unlimited.

Zhang confirms that “O-1 applicants are not subject to any cap or quota. Each case is considered on its individual merits; the total number of O-1 applicants that year does not affect one’s chance of approval.”

What’s more, those even more gifted than my guy are given green cards on the spot. A one-of-a-kind Afrikaner RF engineer we know, who possesses a PhD, publications galore, patented software programs and products, and a company, was told to hop on a plane, family in tow.

My point vis-à-vis the O-1 visa is this: The primary H-1B hogs—Infosys (and another eight, sister Indian firms), Microsoft, and Intel—are forever claiming that they are desperate for talent. But, in reality, they have unlimited access to individuals with unique abilities through the open-ended O-1 visa program…if they really wanted it.

Granted—and here’s the catch—the O-1 visa application process costs double in legal fees what the H-1B visa application costs. The latter is certainly easier to scam than the former.

But immigration lawyers are doing their best to overcome this obstacle. Zhang boasts that in the case of a client it calls “Mr. Gao,” a mere master’s degree, one publication and an approved patent did the trick. And VDARE.COM’s Rob Sanchez has reported a case in which an Argentine pin-up girl got an O-1.

“[A] recently published investigation [PDF] by The U.S. Citizenship and Immigration Service, which oversees [the H-1B program], found a fraud rate exceeding 20 percent, with violations ranging from nonexistent businesses being granted visas, to phony job descriptions.” [Lou Dobbs, November 1, 2008]

Touted as a means of trawling for the best and the brightest, the H-1B system clearly has become anything but. “Ordinary talent doing ordinary work” is Norm Matloff’s overall assessment of the H-1B crop. A VDARE.COM contributor, and longtime critic of the H-1B racket, Professor Matlof’s analysis has been cited extensively.

The 65,000 yearly recipients of H-1B visas are mostly “average workers”. H1-B recruits are supposed to possess at minimum a bachelor’s degree, or “graduate equivalent” work experience. Twenty thousand additional H-1B visas are set aside for high-technology workers with the master’s degree. The master’s is thus the exception within the H1-B visa category.

The Department of Labor uses four levels of classification. The first two require little or no judgment. They are entry-level positions, which is where the vast majority of H-1B workers are concentrated. Very few, only 11 percent, fall into the top category and “plan and conduct work-requiring judgment and independent evaluation”—DOL’s words.

Three percent of Microsoft’s 900 H-1B visa workers are level four workers—i.e., do work that requires independent judgment. Among the companies that push the hardest for expanding the H-1B program, level-four workers entrusted with higher order thinking are rare.

But whether they’re capable of conceptualizing or not, recipients of the H-1B visa are, nevertheless, getting a good deal. Visa advocates perpetuate the tall tale that the H-1B visa provides a steady supply of talent; visa opponents, for their part, like to cry croc about exploitation and slave-labor. I guess they think that misplaced compassion adds force to their arguments.

H-1B visa holders are not paid inferior wages. From the fact that an oversupply of high-tech workers has lowered wages for all techies, it does not follow that these (average) men and women are being exploited. Rather, it is the glut of average worker bees—their abundance—that has depressed wages.

(Incidentally, the Bureau of Labor Statistics confirms that wages for computer programmers have been falling. All the while industry whines about labor shortages. Shouldn’t a labor shortage be pushing wages up?)

Before dissolving in puddles of (misplaced) pity, remember: Voluntary exchanges are by definition advantageous to their participants. They involve giving up something one values less for something one values more and finding someone else with “opposite valuations”.

The H-1B visa holder forfeits his (apparently unexceptional) labor for a salary many times the salary he’d get in India or China or Pakistan. If he were not incalculably better off than he was in his previous life, he would not have taken a calculated risk in a plush American office.

The benefits to “lazy” locals, left out of the decision-making loop, are less obvious—unless one considers the joys of a “diverse” work force. These can entail anything from communication glitches, to cries of “Allahu Akbar” from the company’s “multidenominational” (curiously monopolized) prayer and meditation rooms, to experiencing “Islamic toilet etiquette” (Jamal carrying a cup of water along to the john).

Theoretically, the H-1B program could be totally abolished and all needed Einsteins (and pin-up girls) imported through the O-1 program…they just need to demonstrate “extraordinary ability.”

But industry lobbyists never suggest this. Funny thing.

November 18

CATEGORIES: Business, Economy, Immigration, Labor, Outsourcing, Technology