USCIS: Do Not Reform H-1B

The Case for Collective Punishment

The H-1B Problem

Over the past year, the Trump administration has been in a desperate scramble to catch up to the base on H-1B. Vivek Ramaswamy’s Christmas crash out escalated cultural tension between the Indian diaspora and the technology sector and the MAGA base, just before discussion of the mass migration reached fever pitch. USCIS is sprinting after the base on H-1B and so has put forward the following reforms:

In response, critics have argued that:

• Many have criticized these reforms for not applying to current H-1B visa holders, of whom there are 730,000. Of these, 71% are Indian, and 65% hold visas for computer-related jobs. A total of 60% of all H-1B jobs are assigned wage levels that are well below the local median wage. This translates into salaries that are significantly lower than local median salaries—17% to 34% lower on average for computer occupations, which are among the most common H-1B occupations. The new rules excepting current H-1B workers means that wage levels remain suppressed.

• A small number of employers dominate the program. While over 53,000 employers used the H-1B program in 2019, the top 30 H-1B employers accounted for more than one in four of all 389,000 new and continuing H-1B petitions approved by U.S. Citizenship and Immigration Services in 2019.

• Major U.S. firms use the H-1B program to pay low wages. Among the top 30 H-1B employers are major U.S. firms, including Amazon, Microsoft, Walmart, Google, Apple, and IBM. All of them exploit program rules to legally pay many of their H-1B workers below the local median wage for the jobs they fill.

• Half of the top 30 H-1B employers use an outsourcing business model. These companies place their H-1B hires at third-party client sites, rather than employing H-1B workers directly. They rely on the H-1B program to build and expand their business, which sometimes includes sending U.S. jobs overseas.

• Some have argued that refocusing H-1B on upskilling and high-paid labor would be ineffective and counterproductive, as the real priority should be growing American talent to fill all jobs, high and low level, or that wage requirements will push companies to further offshore low-pay work.

• Tech workers and the base have raised concerns of ethnic nepotism, arguing that Indian managers hired on visas have hired mostly Indian staff or been brought on specifically to replace American workers with Indian workers, first domestically, and then abroad via offshoring. Caste discrimination has become a significant issue in California and Silicon Valley, and the rumor mill is constantly churning with anecdotes of Indian hiring managers not hiring Americans. Major companies, including Cisco Systems, have been embroiled in caste discrimination lawsuits, whereas others, such as Disney, have received major flak for replacing Americans with Indian workers. Indian workers themselves have been effectively trafficked into the United States, though in many cases, under incredibly restrictive and even illegal contracts.

These criticisms all miss the most fundamental issue with H-1B. Before addressing that, let’s understand how we got here. First, the American labor market had been dominated by neoliberal and anti-national thinking for decades, which has caused the federal government to de-prioritize American workers. Second, India has a massive population surplus and is fundamentally broken internally due to ethnic nepotism, corruption, and an array of draconian tax laws, regulations, and religious and ethnic quotas, leaving the state with little economic opportunity outside of remittances and diaspora-funded development. Their biggest national asset is, by far, the sheer size of their English-speaking population. Third, the American state finds itself in fierce competition with China for global hegemony and control of the technology sector. These three facts made it possible for a large number of Indians to enter the American technology market. Corporations have always wanted cheap labor, but they got it due to historical accident as much as intentional lobbying.

The reforms that USCIS has put forward are inadequate to respond to the world-historical forces the H-1B visa system is now caught between. The Trump administration is attempting to reform and tweak a visa system that has become an asset of India’s national development strategy, a method for China to steal advanced American technology (most commonly via University employment), and a goldmine for an underworld of visa scammers, Indians, and companies themselves, who gain status, cheap labor, profit off the exploitation of work, and suppress prevailing wage levels across the market via the option to hire foreign workers.

The fundamental problem is this: Each time USCIS publishes a reform, lawyers in Singapore, San Francisco, Beijing, and Hyderabad leap into action alongside a black market of labor traffickers to find ways to game the system. USCIS is not in contention with individuals misbehaving, or even with companies alone, but with an entire system of ethnic nepotism and bartering that transcends the national boundaries of the American market and stretches into the C-suites of Dell, fake universities in Gujarat, and matchmakers in New Delhi. Just as the New York Police were not in contention with a few bad Sicilians here and there, but instead with that “Sicilian thing”; USCIS is not dealing with a bad applicant here and there, but rather with a distributed network of illicit cells, responsible in turn to desperate and hostile people, companies, and countries, that see the America’s technology giants as hens awaiting foxes.

So, USCIS should not reform H-1B. Congress should end H-1B, and in the meantime, USCIS should pursue a policy of collective punishment.

Collective punishment would mean that Director of USCIS Joseph Edlow sends an email to all relevant USCIS employees directing them to cease processing applications from India and China. We cannot reform H-1B; the bad actors are too well-armed, well-organized, and numerous. We also cannot rely on the administrative state—which is not hostile to the Trump administration at the lower levels but is hostile at the middle and high levels—to implement the administration's policies meaningfully. The current visa system is designed with high-trust candidates in mind, which allows fraud to abound and easily slip through the cracks. The staff cannot vet candidates and are not interested in doing so. For the most part, the American visa system is a rubber-stamp process, excepting some particular security concerns. Not even counting external bad actors, USCIS is already facing an uphill battle in getting its own staff to follow new rules. So, the new rule has to be as unbendable and straightforward as possible, and the simplest rule is to not process applications from any Chinese or Indian nationals for any visas at all. I would even consider restrictions on tourist visas.

Technology companies would still have access to high-quality talent from South Korea, Europe, Japan, and Taiwan. During this processing hold, USCIS would investigate all current H-1B visa holders to detect fraud, and perform market checks to ensure no American was really available for the job they hold. USCIS should also investigate other visas, such as the O-1 and L-1, for fraud.

A Case Study of Failed Reform: The FAA

To bolster my argument, I want to visit a case where attempts to reform an industry failed in the face of ethnic networks illicitly gaming a system.

Throughout the ‘90s and ‘00s, the FAA faced pressure from the National Black Coalition of Federal Aviation Employees (NBCFAE) to hire more black air traffic controllers. In the early 2000s, under the Bush administration, this pressure focused on the newly developed air traffic control qualification test, the AT-SAT. The NBCFAE hired a psychologist, Dr. James Outtz, to critique the AT-SAT from a disparate impact standpoint. Disparate impact, from Title VII of the Civil Rights Act, allows the EEOC to investigate and address unintentional discrimination and make reforms if there are significant gaps between group performance and selection rate in hiring. As initially scored, the test was intended to pass 60% of applicants, but Outzz’s predictions suggested only 3% of black applicants would pass. Thus, the test failed the disparate impact test. In response, the FAA reweighted the scoring to make the test easier to pass, which reduced its correlation with job performance. In its final form, some 95% of applicants passed the test. These reforms took years to work their way through the federal bureaucracy. They arrived in full force under the Obama administration, which doubled down on Bush’s efforts to engineer a more diverse air traffic controller workforce.

In addition to reweighting answers, the NBCFAE, in 2014, also engineered large-scale cheating. One member of the coalition sent text messages to the black members of the NBCFAE who were going to take the test, along with answer sheets:

 ….there is some valuable pieces of information that I have taken a screen shot of and I am going to send that to you via email. Trust and believe it will be something you will appreciate to the utmost. Keep in mind we are trying to maximize your opportunities…I am going to send it out to each of you and as you progress through the stages refer to those images so you will know which icons you should select…I am about 99 point 99 percent sure that it is exactly how you need to answer each question in order to get through the first phase.

This was revealed in the class action suit Brigida vs. Buttigieg:

Non-African American CTI graduates have sued the Department of Transportation alleging racial discrimination in the FAA’s 2014 air traffic control specialist hiring process. Specifically, the Plaintiffs allege that the FAA (1) purged Class members’ CTI qualifications, including their qualifying AT-SAT test results, to change the racial mix of persons advancing in employment screening and (2) designed and used an invalid Biographical Questionnaire, which sought to benefit African American applicants at the expense of non-African American applicants.

Historically, CTI graduates were given hiring preference by the FAA. In 2014, however, the FAA overhauled its hiring process, eliminating the CTI preference and introducing a new Biographical Questionnaire (BQ) as a screening tool. The plaintiffs alleged that this change was intentionally designed to favor African American applicants and disadvantage other highly qualified candidates, including themselves, based on race. For example, candidates received negative marks for excelling in math and science in high school, which disproportionately favored black applicants.

This scandal depressed air traffic controller recruitment and broke trust in the institution. Qualified black and white applicants no longer want to work for an organization after a hiring scandal like this. The discussion earlier this year of “DEIA” at the FAA mainly was in reference to this scandal, which was the result of the Bush and Obama administrations attempting, through reform, to alter the racial demographics of a critical profession intentionally. The NBCFAE, fundamentally, a black lobby, first lobbied for reforms to lower the barrier for entry, and then engineered large-scale cheating to ensure there would be entry. The federal government, in an idealistic effort to engineer racial equality, permanently broke a critical pipeline in Air Traffic Controller training and hiring. We are not talking about a bad policy choice: the air traffic controller hiring pipeline was damaged by a 25-year effort by a minority lobby to enter a new profession with the aid of two Presidents and their administrations. Congress itself had to intervene to stop this trainwreck.

And this is the lesson: reform not only failed, but reform was also a gateway to greater entryism on the part of a black lobby that intended to and in practice did, illegally game and cheat the system to ensure there would be successful ethnic entry into and capture of a job market. If the Bush administration had disregarded the NCBFAE, shut down the EEOC investigation, and stuck with the test as it was, the United States would not currently have an air traffic controller shortage. They would have faced enormous legal challenges in doing so, because going against the EEOC is politically and legally difficult.

A much better alternative would have been to crush the National Black Coalition of Federal Aviation Employees, just as Reagan crushed the Air Traffic Controllers Union, destroying the organizing vehicle for ethnic entryism.

That is to say, Bush should have used collective punishment to hamper the efforts of an organization seeking to engineer the labor market for their benefit. Reform was not only a generational failure but also a gateway for greater entryism. Well-meaning policymakers sought to use smart reforms to engineer the labor market, but each reform was, to the NBCFAE, simply a stepping stone to state-assisted ethnic-entryism. Reforms created a situation where individual white, asian, and hispanic candidates were forced to compete against a collective of black applicants, with both direct legal and illegal support. Reforms failed in the face of network pressures.

Just as today, lone Americans in the technology sector are forced to compete against multi-billion dollar cartels trafficking in labor exploitation and ethnic nepotism, which is de facto legal, because the state does not have the capacity or resources to police H-1B, and has not had the will to do so for years.

Collective Punishment Works

Collective punishment would be simpler and more effective. Reforms often create new problems as much as they solve old ones. There is little appetite in the base for reforming H-1B, and there are significant obstacles to successful reform. Facing down the Italian mafia, we developed RICO to engineer collective punishment of an illicit ethnic network. Facing down the Indian tribes, we punished rebellions by collectively stripping land rights. Facing down the threat of war with Japan, as early as 1936, the Roosevelt administration charged an Army-Navy task force with identifying Japanese Americans with connections to Japan, and often forgotten but critical: there were legitimate Japanese nationalist organizations in the United States, and the government uncovered multiple espionage rings linked with the Imperial Navy in southern California. Throughout American history, the state has used strong collective punishment to resolve internal ethnic challenges, some related to illegal criminal activities, others to foreign subversion. Collective punishment is the American state’s historical counter to illicit networks.

What I am calling for is not radical. Roosevelt, America’s most progressive president, did far more that many would see as far harsher. Collective punishment is an art of governance for facing down hostile collectives, and we are confronting one. Reforms are for when governments must repair a broken system, not when they are inching towards global war or playing with the fates of critical industries, tens of thousands of jobs, and billions of dollars. USCIS and the WH internally apparently lack the capability to coordinate messaging, and the proclamation was apparently written inaccurately.

The Trump administration, at the White House and USCIS, lacks the staff, command, and control required for competent reform. Failed reform is worse than no reform: it creates opportunities for bad actors to manipulate the government and angers the base, negatively steering them away from political action. Therefore, the administration should not pursue reforms it cannot effectively guarantee. Instead, it should pursue simple, large actions that do not require command and control, but rather the opposite: the lack of action, such as not processing visas from China or India. Take a look at the USCIS H-1B webpage and tell me if this looks like a competent, coordinated reform effort likely to succeed without pressure and lobbying getting in the way. Even more absurd, the H-1B reforms have tied a $100,000 fee to processing an H-1B, giving bad actors an even greater financial incentive to pressure the system, find exceptions to the fee, or use visas to avoid the $100,000 price tag. Bad actors have not been excluded from the visa process, and the fee will not do that.

So, USCIS: don’t waste time bargaining over H-1B. Simply ban hostile countries from participating and revoke visas of nationals from those countries. The issue is not the system, but what the system has become for India and China: a national development asset and a way to steal IP at scale, in turn. No one is complaining about Finnish, Japanese, or Korean H-1B workers because these countries are not hostile. Collective punishment is appropriate, simple, and effective. You are not going to fix a hostile country using H-1B for IP theft with a reform. You are not going to fix a neutral but bad actor that uses H-1B as a national development tool with a reform. They will game the system. They are already working on it. Or, they will turn to their nationals already in-country, seeing them as prized assets waiting to be tapped, alienated by an anti-immigrant administration.

The Trump administration should not waste time reforming a system that will be gamed. They should punish those gaming the system. This is good for national security and is good governance. This punishment would, of course, have to be coordinated with DOS and the WH, and receive high-level approval, but that’s fine: the failed launch of the H-1B reform with Lutnick’s famous walkback of the annual fee got approval too.

In governance, big actions are often easier than little actions. Big actions with simple instructions are easier to follow and allow less room for corruption and quibbling. Coordinating government action on a large scale is easier than on a small scale, especially when small-scale coordination encounters internal friction and requires competent staff that are in short supply.

As the FAA scandal shows, well-meaning reforms often create more problems than they solve. The Trump administration should copy Reagan and, instead of seeking to bargain with a hostile collective, crush it. The Bush administration sought to deal with a collective, and in so doing, broke a hiring pipeline for a generation. If USCIS continues to reform H-1B, we may further damage the American hiring pipeline, which is already broken for many graduates. We do not have time to engineer the market, play with wage scales on Excel, or ask interns to make the proclamation look nice on Canva. We do not have time for cheap politics. Tensions with China over Taiwan get closer to confrontation every day, and India has shown itself, via BRICS and Russian oil, to be only interested in playing both sides to achieve a stronger hand for itself over Pakistan. We are at a crisis point in global security. Drastic action is required, and the most appropriate approach is to treat hostile collectives as such and exclude them from the visa process altogether. USCIS is not strong enough to negotiate H-1B reform with the vast array of interests that want to control or undermine the reform process, but Director Edlow is strong enough to send an internal-only email with a very simple set of instructions.

Note: this article is essentially “Applied Yarvinism,” borrowing heavily from his writing on power in Grey Mirror, which you should go read.