Open Borders and the Golden Rule

Last year Pope Francis visited the United States and addressed Congress. A significant portion of his speech was devoted to how people should respond to immigrants. While not appealing for specific immigration policies, Pope Francis reminded his listeners that immigrants deserve to be treated humanely:

“… thousands of persons are led to travel north in search of a better life for themselves and for their loved ones, in search of greater opportunities. Is this not what we want for our own children? We must not be taken aback by their numbers, but rather view them as persons, seeing their faces and listening to their stories, trying to respond as best we can to their situation. To respond in a way which is always humane, just and fraternal. We need to avoid a common temptation nowadays: to discard whatever proves troublesome. Let us remember the Golden Rule: ‘Do unto others as you would have them do unto you.’ This Rule points us in a clear direction. Let us treat others with the same passion and compassion with which we want to be treated. Let us seek for others the same possibilities which we seek for ourselves. Let us help others to grow, as we would like to be helped ourselves.”

Open borders supporters can highlight certain remarks that appear to support our cause, especially the sentence “Let us seek for others the same possibilities which we seek for ourselves.” For immigrants from developing countries to enjoy the same opportunities as people living in developed countries, they must be allowed to enter and remain in advanced countries. And it seems impossible to treat immigrants in a way that is “humane” and “just” under a policy of restrictions. (The group No One Is Illegal states that “the achievement of fair immigration restrictions… would require a miracle.”) At the same time, those opposed to open borders could reference a remark in the Pope’s speech (not quoted above) in which he states that the world refugee crisis “presents us with great challenges and many hard decisions.” One might infer that those decisions might involve accepting some migrants into destination countries and refusing others.

But what about the Golden Rule itself? Is it a foundation for open borders? One approach to the Golden Rule would seem to support open borders. Consider Bryan Caplan’s remark that all that we really owe strangers is to leave them alone. If this is applied universally, “Do unto others…” could mean that you wouldn’t have anyone block you from shopping, living, or working where you please, even if it’s in another country, so you shouldn’t interfere with others’ ability to do the same, regardless of their nationality. This seems to be what the Pope means when he says, “Let us seek for others the same possibilities which we seek for ourselves.”

The Golden Rule also could be seen as supporting a limited version of open borders. It would support open borders for citizens of countries with comparable economic prosperity. For example, Argentina, Chile, and Uruguay have roughly the same per capita GDP.  It would make sense that citizens of any one of these countries would have the other two countries allow them to migrate freely to those countries to pursue economic opportunities, so they should have open borders for citizens of the two other countries to enter their country.

However, the Golden Rule’s support for open borders could founder when applied to citizens of countries with wide economic disparities. This is because citizens of the Third World generally have much more to gain from moving permanently to the First World than citizens in the First World have to gain from moving permanently to the Third World. Citizens of developed countries, who generally have little desire to migrate to developing countries, probably wouldn’t have developing countries open their borders to them, especially if it meant they would have to, under the Golden Rule, reciprocate. Therefore, they wouldn’t be obligated to open their borders to citizens from developing countries. For example, most Canadians likely would be okay with Bangladeshis telling them that they couldn’t migrate to Bangladesh, so Canadians wouldn’t have to open their borders to Bangladeshis. On the other hand, most Bangladeshis probably would have Canada open its borders to them, so they would have to open their borders to Canadians. This difference in perspective reflects a weakness that others have noted about the Golden Rule: the difficulty of applying it to “differences of situation.

Pope Francis’ comments about treating immigrants with compassion are inspiring. However, I disagree that the Golden Rule “points us in a clear direction” about how to respond to immigration. It is too malleable to provide a moral foundation for immigration policy.

Luck and Open Borders

In a previous post, I noted that, in my opinion, the best argument for open borders is that it would allow people, not their birthplace, to control their lives. Open borders would offer people who had the bad luck of having been born in poor and/or unsafe countries the opportunity to escape their unfortunate circumstances and find a better life in a safer, more prosperous country. It is wrong for the lucky who were born in the developed world to deny this opportunity to the unlucky who were born in poor countries, to paraphrase the ideas of several other critics of immigration restrictions.

How persuasive is this argument? Research on the role that awareness of one’s luck has on one’s generosity suggests that the argument, by reminding people of their good fortune in having been born in the First World, could be effective.

A recent article in The Atlantic by Robert Frank of Cornell University focuses on this connection between being aware of one’s good luck and a willingness to help others. Mr. Frank notes that when people disregard the role luck plays in their success, they are less generous. However, “… when people are prompted to reflect on their good fortune, they become much more willing to contribute to the public good.” He cites experiments in which subjects who are induced to feel grateful or consider factors outside their control that have helped them are more generous towards strangers than subjects in control groups.

It would be interesting to see what the results would be if a similar experiment were conducted in which some subjects were prompted to consider their good fortune at having been born in an advanced country and then asked their views on open borders, while other subjects were not given such prompts. The results of the aforementioned studies, even though the generosity was directed at strangers who were presumably fellow citizens, suggest that the subjects in the hypothetical experiment who were led to consider their good fortune would be more favorable towards open borders than the other subjects. (While he doesn’t express his views on immigration policy, Mr. Frank states that “the one dimension of personal luck that transcends all others is to have been born in a highly developed country.”)

As open borders advocates consider which arguments are most likely to convince more people in advanced countries to embrace open borders, this focus on making individuals aware of the huge role that their place of birth has had on their lives could be potent. Of course, this message would be received better by those who are prospering more than others. As the Brexit vote has shown, many of those who are struggling in the developed world are in no mood for increased immigration.

Mr. Frank observes that successful people in the First World tend to overlook the role luck plays in their success: “Most of them are vividly aware of how hard they’ve worked and how talented they are. They’ve been working hard and solving difficult problems every day for many years! In some abstract sense, they probably do know that they might not have performed as well in some other environment. Yet their day-to-day experience provides few reminders of how fortunate they were not to have been born in, say, war-torn Zimbabwe.” If the open borders movement can provide more such reminders, it could be significantly strengthened.

We need to win minds not votes

The Supreme Court recently ruled against the Obama administration’s expanded deferred action program. The program, first announced in November 2014, would have granted de facto amnesty and work authorization (but not a pathway to legalization!) to a large portion of the illegal aliens in the United States. The program was an expansion of an earlier program that granted similar benefits to Dreamers, illegal aliens who came over as children. The decision was tied 4-4, meaning that the earlier appellate court ruling was upheld. Since it was a tie the Supreme Court may review the case again in the future.

Within minutes of the announcement my mail box was being filled by Dreamer and other migrant advocacy groups. United We Dream, one such Dreamer advocacy group, sent a mass email declaring that:

“Make no mistake – the GOP took DAPA away from us, and now they’ll come after DACA. We need your help to stop the hate and defend the immigrant community… This November we need to vote to ensure that we never face a defeat like this again. We will remember this day and these conservative politicians when we turn out our allies to take to the polls in November.”

Note the emphasis on getting votes to punish the GOP. This is not an isolated message, but part of a wider trend among Dreamer networks. The feeling I often get when I interact with other Dreamers is that what they want is a president who is willing to enact their preferred policies regardless of the political institutions in place.

This would not be a problem if they were arguing that the constitution never gave the federal government the power to regulate migration – see here, here and here. I greatly sympathize with this latter reading of the Constitution.

However in my interactions with other Dreamers I get the impression that they have a view of the Constitution painted by their close attachment to the progressive political machine. To be fair Dreamers hold their reservations against the mainstream Democratic Party, but they have no love for conservatives. One survey found that roughly 50 percent of Dreamers consider themselves Democrats, 45 percent identify as independents, and 5 percent as other. This close attachment to progressives means that the Dreamer’s version of the Constitution is missing the 9th and 10th amendments, along with other key parts restricting the power of the executive. As far as most Dreamers are concerned they are not advocating a reading of the Constitution that denies the federal government the power to regulate migration. Dreamers are advocating the expansion of executive power.

Seeking an increase in executive power isn’t the answer though. By promoting the increase of executive power we may get a pathway to legalization for ourselves, but we also weaken the institutions that have made the United States a prosperous nation. Our parents left their countries because of how awful the governments there are. If anyone wishes to live in a country run by strong man politicians they have plenty of choices south of the border.

It is true that the United States’ political institutions have led to several injustices. Slavery and institutionalized racial segregation were both upheld as legal before they finally began to be dismantled. It is saddening to think how long it took the United States to outlaw slavery.

The same institutions have also served as safeguards for minority groups. The United States is a country where communists, and KKK clansmen alike can protest and preach their beliefs without fear of legal reprisal. Dreamers in the United States have an untold amount of privilege compared to their counterparts worldwide.

Indeed, where else has a Dreamer culture developed? Where else could a Dreamer culture develop? Where else could illegal aliens hecklethe President and get away with it? Illegal immigration is not unique to the United States, but the Dreamer culture is.

In Mexico, and other countries with poor institutions, the government has no qualms simply killing student protesters. In 1968 an unspecified amount of student protesters were killed before the Olympics were scheduled to start in Mexico City. In 2014, 44 student protesters in southern Mexico were kidnapped and killed under the orders of the regional government.

By all means the United States is not above harassing student protesters. It is easy enough to find stories where Dreamers have had their work authorization denied due to past political activities. The Kent State shootings show that the United States is capable of using violence against student protesters. Even at its worst though the magnitude and the response of the public has been drastically different when the United States tries to pacify student protesters versus other nations. I for one would feel safer protesting in the United States than Mexico.

Life as an illegal alien is terrible, but it is preferable to life in a banana republic. The Supreme Court ruling is disappointing, but we should not think the Supreme Court and other institutions are antiquated because of it. We should certainly not try to swap those institutions for a stronger president. Instead we should concentrate our efforts to spreading the case for open borders. In the end it will be ideas that lead to lasting change.

Open Border advocates, especially libertarian OB advocates, in turn have a duty to reach out to Dreamers. Dreamers have a painted view of the Constitution, but can they be blamed when libertarians and conservatives have failed to reach out to them? Worried about Dreamers voting for progressive politicians when they get the vote? Don’t donate to Numbers USA or CIS. Instead buy a few pocket constitutions and send them to your nearest Dreamer group.


 

Further Reading:

OBAG coverage of the Expanded Deferred Action Program
Ilya Somin on the SCOTUS decision [External]
Is There a Downside to Presidential Nullification? By Nathan Smith
Executive Action, Not Legislative Reform, Is How U.S. Immigration Policy Gets Made Now by David Bennion

Damn Our Euphemisms: Who is the Accomplice to Murder in Dilley, Texas?

[CONTENT/TOPIC WARNING: Descriptions of violence, conflict, confinement. Strong moral exhortations and confrontational questions. Please be prepared when reading.]

I have said before, and I will keep saying: forcing people to return to violence they have escaped is an open endorsement of that violence, a collusion with their persecutor back home and a joining of the open threat on their lives.

Every year the U.S. mass-exile system forces thousands of people to return to war zones and other dangerous places where they may be and sometimes are murdered with impunity.1 Some of those deported are children. Nowhere is this more true than in Central American states like Honduras, El Salvador and Guatemala, where a toxic brew of corruption, organized crime and neo-colonial fallout have generated ubiquitous violence and the highest murder rates in the world.2 Immigration and Customs Enforcement (ICE) returns many immigrants from Central America to these same states where they are being hunted. You could say they are delivered into the hands of their killers – that their murder is enabled, even assisted, by their deportation, by their deporters.

One study found that between January 2014 and September 2015 eighty-three deportees who were sent back to Honduras, Guatemala, and El Salvador were murdered after their return.3 They were people fleeing the killers who eventually took their lives. People like José Marvin Martínez, who fled violence in Honduras and made it to the U.S. when he was 16, but was deported and four months after his forcible return was shot to death.4 Or Juan Francisco Diaz, also deported back to Honduras, where he too was murdered a few months later.5 Or Giovanni Miranda, who, after spending most of his life in the U.S., was deported to El Salvador to be murdered in front of his wife and son in June 2015.6 Or Edgar Chocoy, 16, who ran away from a gang to the U.S. only to be murdered by that same gang seventeen days after he was deported back to Guatemala in 2004.7 Or an unnamed teenager who was shot to death hours after being deported back to San Pedro Sula, Honduras.8 Moises, 19, was murdered after he was deported to El Salvador.9 And there are too many more names we’ll never know.

What’s more, the number of deportees delivered directly to their killers does not include those who survive attempted murder or other violence because of their deportation – a number no one knows. Isais Sosa, who was 19 when the Los Angeles Times covered his story in 2014, survived being shot by a gang days after his deportation.10 The 19 year old daughter of Dora Lina Meza fled to the U.S. from the same gang that, after she was deported back home, raped her at gun point.11 After Juan Ines Alanis was deported he was kidnapped and held for ransom while his fingers were smashed with a hammer.12

The use of euphemism is a common tactic for masking brutality. Many have discussed the use of “bureaucratic euphemisms” to direct attention away from acts of violence in the context of slavery,13 genocide14 and torture,15 for example. From “special resettlement” to describe the forced relocation and mass murder of millions under Stalin,16 to “sleep adjustment,” and “enhanced interrogation techniques” to describe torture in the Abu Graib prison.17 “Euphemism” comes from the Greek word euphemismos, meaning to use favorable words in place of inauspicious ones,18 literally “eu” and “pheme” together mean “good talk.”19 The only reason to use favorable words to describe human suffering is to hide that suffering from yourself and others. But human beings deserve to have their “inauspicious” suffering described as accurately and directly as possible.

The process of deporting people to their death or maiming is facilitated and hidden from us through the use of euphemism. When we strip away the “auspicious” language, we’re forced to confront honestly the suffering of exiled people and our role in their fate. ICE “detains” (kidnaps20) human beings for the purpose of “deporting” (condemning) them to their “home countries” (war zones) where ICE knows that they could be “persecuted” (raped or murdered in cold blood). But while the euphemism is used to hide culpability, the fact of culpability remains. Where A knows that C will murder B if C finds B; and A kidnaps B and delivers B to C – isn’t A guilty of something? When we acknowledge that ICE knowingly facilitates the death of human beings, it makes it difficult not to assign that institution some amount of moral responsibility and culpability for their actions. The evil of euphemisms used to describe evil should be obvious: talk about violence should be direct and honest because we collude with that which we hide and keep secret. We hide and collude with the suffering of people in the mass exile system when we resort to euphemism and doublespeak.

Translating ICE’s auspicious words into their inauspicious meaning forces us to confront the reality of their injustice. In criminal law, when a person does not themselves murder someone but contributes sufficiently to someone else’s act of murder, we deem this person an accomplice or an accessory to murder. If federal agents delivered U.S. citizens directly into the hands of those who sought to harm them, this would probably be considered both criminal and unconstitutional. But as the Supreme Court admits “in the exercise of its broad power of immigration and naturalization, Congress regularly makes rules that would be unacceptable if applied to citizens.”21 The only reason we don’t recognize mass exile as the moral equivalent of an accomplice crime is because the law has decided that noncitizens are inferior to citizens and may, therefore, be treated as less than human. We protect our own conscience and accommodate this law by covering up human suffering with legal jargon that comports with the denial of human pain. This accommodation makes compliance with the law easier (e.g., “removal to your home country” instead of “deliver you to your killer”).

Let’s discuss a salient example of accomplice crime: a prison for mothers and their children in Dilley, Texas; a place where A kidnaps B and delivers B to C. Let’s talk about how criminal law would evaluate what happens at Dilley if we decided that it actually was not ok to make rules for migrants “that would be unacceptable if applied to citizens.”

The Scene of the Crime

During the week of July 5th to the 11th of 2015, I was one of many volunteer attorneys who spent a week working in the Dilley, Texas internment camp for mothers and their children,22 assisting some of the people imprisoned there with their claims for asylum and “bond” (the immigration equivalent of bail, that is, release from detention while your case is pending).

Just outside the small town of Dilley, just past a federal prison, a forest of industrial flood lights hang over the roof tops of a sprawling internment camp that someone in government has the Orwellian temerity to call the “Dilley Family Residential Center.” That name, which sounds like it might describe a nursing home or gated community, tells you that this is a place of denial and euphemism. Volunteers have compared it to the internment of Japanese Americans during World War II, or refer to it simply as “baby jail.” Both are accurate. It is an ICE operated, Corrections Corporation of America (CCA) administered prison for 2,400 women and children – 1,046 children, in fact, 96 of whom are younger than two.23 It is a series of interconnected trailers and dormitories surrounded by twelve foot high wire fences. It is equipped with a “playground,” and “court rooms,” spartan chambers where immigration judges preside over claims via video monitor from Miami, while the woman on the other end often sits alone with a prison guard at her side, often without an attorney. No one imprisoned in Dilley has been charged with any crime. This is where people are held after their capture near the border before they are either released into the U.S. (if they’re lucky) or deported back to their home country (where, it bears repeating, they may be murdered). Future generations will scarcely believe we were so timid in our opposition to such a place that we allowed it to flourish here. This is where the accomplices hide behind lies.

Much has been written about the madness of places like Dilley, by people with far more knowledge and experience with them than I have, and you should consult these sources first for thorough descriptions of the enormous human suffering Dilley contains.24 I will relate here only two memories from Dilley because they capture the ways in which its brutality is hidden with euphemism and denial.
First, the camp’s entrance: Visitors enter this prison for toddlers and their mothers through a long, white corrugated trailer with a bland gray door. Through the door you pass through antiseptic air and metal detectors flanked by armed guards. You may not enter the facility until you are stripped of any metal or glass on your person. Cell phones are forbidden. Cameras are forbidden. Money is forbidden (although you may take in a maximum of twenty $1 bills). More revealing of Dilley’s true nature, though, are the series of paintings on the wall opposite the metal detectors. They are watercolor-like, saccharine portrayals of life behind the iron fence; people dining carelessly in a prison cafeteria, happy children sitting in a classroom that’s behind bars. Think Norman Rockwell goes to hell. I mention them because they are a visual euphemism – an obnoxious and clumsy effort to convince us that this is a place suitable for human beings; an incredulous invitation to believe there can be happiness without liberty. This awkwardly placed art seems to be a disingenuous answer to a question DHS and CCA wish we would stop asking – how can it possibly be humane (or legal) to imprison whole families? It also smacks of what Vladamir Nabakov and Azar Nafisi called “poshlust,” or the banality and garishness often indicative of brutality, “the falsely important, the falsely beautiful, the falsely clever, the falsely attractive,”25 such as plastic flowers in a prison (or in this case, cheap paintings). The paintings reflect the mundane, humdrum mood with which Dilley personnel regard this place, a mood that evokes what Hannah Arendt called the “banality of evil.” These paintings attempt to warm the world to the idea of putting babies in prison and in so doing reveal the brutality inside.

Second, a very angry parent: At this point in history it is axiomatic to say that immigration detention camps often lack adequate healthcare for their prisoners – and the Dilley camp is no different.26 There are many stories of the people trapped there, adults and children alike, receiving inadequate medical care, or no care at all.27 In one incident, the Dilley facility endangered childrens’ health by giving them dangerously high doses of a Hepatitis A vaccine.28 Add this to humiliating living conditions (I’m told families are packed into bunk beds, in rooms less spacious than a college dormitory, with only a drawn curtain around the bed to simulate privacy, and someone has the gall to call these “suites”); add this to the persistent threats (any time ICE officials and judges remind internees about their imminent deportation they are effectively reminding them of their power to make internees suffer – in any other context we would call that a threat); also consider that many are hostages who cannot pay their ransom (ransom is a much more accurate way to describe the “bond,” $1,500 or more that when paid can ensure their release from this prison until the courts decide their fate, although not all are even eligible for bond); and you can imagine how angry a parent would be if the same people holding their son or daughter prisoner in this place also prevents them from seeing a doctor when they’re sick. Some people don’t need to imagine it. During my time at Dilley, one woman approached some of the volunteers to explain that her son had been feverish for days, that his conditioning was worsening, but that ICE or CCA or both would not release the child to a hospital. This would not be the first time volunteers called 911 for a sick detainee who was not receiving proper care. I cannot forget the rage on that parent’s face. Eyes wide, face red, her lips pursed and her bottom teeth exposed – she was as livid as I have ever seen anyone. If I was outraged, what words exist that could possibly describe how she felt? I feel compelled to talk about that person’s face because it seemed a rare moment of emotional honesty in a place where poshlust and cruel grandiloquence (“Family Residential Center,” “suites”) dominate. She described the injustice of Dilley with her face better than anyone writing about it can with words – her expression stripped away the euphemisms and lies.

So – looking behind the fantasy that those paintings want us to believe – when the people trapped in this government funded hell hole are forced to return to the places where we know they will be harmed or murdered – who is the accomplice to that harm or murder? Is it the ICE officer who physically pushes people into the airplane and forces them to board the flight back into the hands of their killer? Is it the Judge that orders the same? What about the Congress that made this cruelty law and the president who enforces it? Is it the CCA employee who conspires with them to hold that person captive for the purpose of having them forcibly sent away? Is it the guard who ensures this captivity at Dilley? Or the army of technicians, custodians and support personnel who ensure the prison functions and enables the guard? Is it the Customs and Border Protection officer who drags the parent and her child here in the first place to allow this process to begin at all? And what about the denizens of Dilley who support the facility indirectly, by delivering mail or scrubbing floors? What about the lawyers like me who, despite defending the prisoners from exile, must collaborate with this system in the process to do so? What about the taxpayers who funded this place?

Is it hyperbole to call any of these people accomplices to murder? It surely makes us uncomfortable to do so, and that discomfort is precisely what Dilley’s euphemisms are trying to make us forget or ignore. But dismissing this discomfort is dangerous because it deceives us into believing what is not true – that Dilley is anything more than a means to threaten and endanger peoples’ lives. The law of accomplice crime is an important tool for labeling accurately the cause and effect of what goes on at Dilley, even if it seems hyperbolic and especially if it makes us uncomfortable.

Accomplice Crime in Texas

Under Texas criminal law, a person “must” be found an accomplice to a murder when they “engage[] in an affirmative act that promotes the commission of the offense that the accused committed,”29 and do so “before, during, or after the offense,”30 while “intending or knowing” that their actions would “assist in causing the death” of the victim.31 To clarify, simply knowing that the murder will take place, but failing to stop it – or merely being present at the scene of the crime – are not enough to make one an accomplice.32 Rather, the person must engage in some affirmative act intending or knowing that this act will promote the victim’s death. For example, the Texas courts have said that simply disposing of a murder weapon33 or even disposing of the body after the murder,34 does not make one an accomplice to the act itself. It must be an act or omission that promotes the victim’s death.35 The standard for accomplice crime is the same, whether we’re talking about murder or robbery or any other intentional violent crime.36

Now, in criminal cases juries decide facts in the court room, and to do so properly they are given instructions by judges. Depending on the evidence, a Texas judge must instruct a jury to find that a person was an accomplice “as a matter of law,” or “as a matter of fact.”37 A jury will be instructed to find someone an accomplice as a matter of law when the evidence “clearly show[s] that the witness is an accomplice.”38 However, if it is not clear whether the individual is an accomplice, the jury must be asked to determine whether the witness is an accomplice as a matter of fact.39 For example, in one case, Mize v. State, a Texas court concluded that there was “at least” a jury question of accomplice “as a matter of fact” to the crime of robbery where the alleged accomplice drove the getaway car for the robbers and saw the robbers pointing guns at their victims.40 Here the driver’s affirmative act was driving the getaway car, it occurred immediately after the offense of robbery and the driver knew it was a robbery because he saw the guns pointed at the victims – thus, the jury and later the court found that the driver was an accomplice to the crime.41

Driving a getaway car is an apt analogy to the accomplice crime in Dilley. In Mize the driver was actively helping the robber complete their crime because without the driver’s help the robber would not be able to complete the crime. The analogy between driving the robber from the robbed and flying the murdered to the murderer – should be obvious. In a very real sense, ICE is driving the getaway car in reverse when they deliver people to their killers. Without ICE’s help, no killer hunting the deportee would be able to complete their crime. ICE facilitates the crime just like the driver in Mize. And just as the accomplice to the crime in Mize knew that he was chauffeuring around robbers because he saw the guns – ICE knows very well they’re chauffeuring Dilley captives to their death because they know the conditions in Central America, the captive has told them they fear death, and this pattern of deport-murder-repeat is not a secret to anyone. Those involved with physically holding and banishing people back to Central America, therefore, were they on trial in Texas, would at least have earned an instruction to the jury to determine whether or not they are accomplices to murder as a matter of fact.

Additionally, Texas courts have said that a person’s “consciousness of guilt” as to their facilitation of a crime, such as by fleeing the police or hiding their participation, “is perhaps one of the strongest kinds of evidence of guilt,” inasmuch as it would prompt a judge to instruct a jury to determine whether someone was an accomplice as a matter of fact.42 Do we have evidence that ICE wants to hide its participation in the kidnaping and murder of people? Yes. The euphemisms and poshlust are evidence. Why would the authorities who ordered, designed and set Dilley into motion call it a “family residential center” if they weren’t trying to hide the reality that it’s a prison? Why call it “removal” unless you’re trying to hide that it’s exile? Why decorate your prison with fake photos of happy prisoners when their real emotions are terror and rage? Why call them “suites” unless you don’t want people to know they’re cells? Do the higher ups of ICE and CCA believe that employees would find it harder to come to work if they were honest about the facility’s purpose? Does ICE assume the public would be more outraged if they used accurate words? Why hide behind a litany of misnomers if you weren’t trying to hide your own culpability? Those who bolster and entertain the use of these euphemisms let their guilt show. The circumambulation and the poshlust are efforts to hide their participation in violence, and this is evidence of their guilt as accomplices to the crimes committed again deportees. Look past the plastic flowers and you can see what Dilley really is: a crime scene.

No one who keeps Dilley running should be free from the creeping sense of shame or self-doubt. Every person who has ever been inside a place of such morally despicable character, who is not themselves its prisoner, even people like me, should be burdened with the responsibility to ask themselves, just like any Texas jury would have to ask themselves, how their actions have led to the death of other human beings and what role have they played in facilitating those deaths. These questions are the burden and the responsibility of anyone so involved. And if you’ve ever been through Dilley, close enough to it to be implicated in its crimes, then these questions are now yours– you own them. We cannot allow ourselves to assuage our consciences with words that hide the truth. Who is an accomplice to murder in Dilley, Texas? There, that question is yours now. Go live with it.

Related reading

Footnotes

1 See, e.g., Anna Cat-Brigida Deporting People to Their Doom in Murderous Central America, The Daily Beast, Feb. 7, 2016, (“Just last year 75,000 migrants were deported back to the Northern Triangle [Guatemala, Honduras and El Salvador]”).
2 James J. Phillips, Honduras in Dangerous Times: Resistance and Resilience, at 227 (2015); Guy Taylor & Stephen Dinon, Violence Surges in Central America, Threatening New Refugee Flood, The Washington Times, Jan. 10, 2016
3 Attorney General Kamala D. Harris Joins Washington State in Filing Amicus Brief to Ensure Unaccompanied Minors are Guaranteed the Right to Counsel State of California Department of Justice Press Release, March 11, 2016; Sibylla Brodzinsky & Ed Pilkington, U.S. government deporting central American migrants to their deaths, The Guardian, Oct. 12, 2015; Anna Cat-Brigida Deporting People to Their Doom in Murderous Central America, The Daily Beast, Feb. 7, 2016
4 Sibylla Brodzinsky & Ed Pilkington, U.S. government deporting central American migrants to their deaths, The Guardian, Oct. 12, 2015
5 Id.
6 Roberto Lovato, Deported to Death: The tragic journey of an El Salvadoran immigrant, AL Jazeera America, July 11, 2015
8 Cindy Carcamo, In Honduras, U.S. Deportees Seek to Journey North Again, L.A. Times, Aug. 16, 2014
9 Pastor Mark Knutson, Francisco’s Son has been murdered in El Salvador, Feb. 20, 2016
10 Cindy Carcamo, In Honduras, U.S. Deportees Seek to Journey North Again, L.A. Times, Aug. 16, 2014
11 Bob Ortega, Revisiting the immigration pipeline: Deported into Danger, Nov. 13, 2014, The Arizona Republic
12 Aaron Nelson and Jeremy Roebuck, Immigrants are being deported into danger, The San Antonio Express-News, Oct. 5, 2013
13 Winthrop Jordan, Tumult and Silence at Second Creek: An Inquiry into a Civil War Slave Conspiracy, revised edition, at 94 (1995)(describing the word “examine” as a euphemism for whipping as punishment and to extract information).
14 Timothy Ryback, Evidence of Evil, The New Yorker, Nov. 13, 1993 (noting the “extensive” use of euphemisms in official documents that record the genocide at Auschwitz)
15 David Brooks, Shields and Brooks on the CIA interrogation report, spending bill sticking point, PBS Newshour, December 12, 2014 (describing the CIA’s use of the term “enhanced interrogation technique” as a euphemism designed to “dull the moral sensibility.”).
16 Roger Griffin, “’Lingua Quarti Imperii’: The Euphemistic tradition of the extreme right,” at 55, Mathew Feldman & Paul Jackson (Eds), “Doublespeak: The Rhetoric of the Far Right since 1945”(2014)
20 Kidnapping, by the way, is an accurate description of what ICE does when they “apprehend” a person and lock them away against their will, a process you’ll notice is described pretty accurately by the legal definition of kidnapping: To “intentionally or knowingly abduct” another person; “Abduct” is defined as restraining someone “with intent to prevent his liberation by: (A) secreting or holding him in a place where he is not likely to be found; or (B) using or threatening to use deadly force.” TEX. PEN. CODE. ANN. §§ 20.03(a); 20.01(2).
21 Reno v. Flores, 507 U.S. 292, 305-06 (1993)
22 Human Rights Watch, US: Trauma in Family Immigration Detention, May 15, 2015
24 National Immigrant Justice Center, Stop Detaining Families, [last accessed May 5, 2016]; Human Rights Watch, US: Trauma in Family Immigration Detention, May 15, 2015
25 Azar Nafisi, Reading Lolita in Tehran: A Memoir in Books 23 (2003).
28 Jason Bunch, Children at Dilley Detention Center got Adult dose of Vaccine, My San Antonio, July 4, 2015
29 Smith v. Smith, 332 S.W.3d 425, 439 (Tex. Crim. App. 2011).
20 Id.
31 TEX. PENAL CODE ANN. § 19.02(b)(1); Sturdivant v. State, 445 S.W.3d 338, 355 (1st Dist. 2013), rev’d on other grounds by Sturdivant v. State, 411 S.W.3d 487 (Tex. Crim. App. 2013).
32 Smith v. Smith, 332 S.W.3d 425, 439 (Tex. Crim. App. 2011).
33 Paredes v. State, 129 S.W.3d 530, 537 (Tex. Crim. App. 2004). 
34 Caraway v. State, 550 S.W.2d 699, 702-3 (Tex. Crim. App. 1977).
35 McFarland v. State, 928 S.W.2d 482, 514 (Tex. Crim. App. 1996).
36 See, e.g., Mize v. State, 915 S.W.2d 891, 895 (Tex. Crim. App. 1995).
37 Smith v. Smith, 332 S.W.3d 425, 439 (Tex. Crim. App. 2011).
38 Id. e.g. the individual must be chargeable with the same crime committed by the defendant (the murderer). See Druery v. State, 225 S.W.3d 491, 498 (Tex. Crim. App. 2007).
39 Blake v. State, 971 S.W.2d 451, 455 (Tex. Crim. App. 1998).
40 Mize v. State, 915 S.W.2d 891, 896 (Tex. Crim. App. 1995).
41 Id.
42 Hyde v. State, 846 S.W.2d 503, 505 (Tex. App. Corpus Christi 1993, pet. ref’d) (quoting Torres v. State, 794 S.Wd 596, 598-600 (Tex. App. Austin 1990, no pet.)).

Open Borders editorial note: As described on our general blog and comments policies page: “The moral and intellectual responsibility for each blog post also lies with the individual author. Other bloggers are not responsible for the views expressed by any author in any individual blog post, and the views of bloggers expressed in individual blog posts should not be construed as views of the site per se.”

High-skilled hacks: a (very) brief overview of H-1Bs (more to follow)

This post is part of my “high-skilled hacks” series, focused on immigration to the United States. The series explores various workarounds and caveats to immigration law that high-skilled workers and their employers have discovered in order to further their own interests, at the expense of the original intent of immigration law. Through the series, I try to argue that, although these hacks are an improvement over an alternative where only the basic immigration system existed, freer migration for all would be simpler, fairer, more efficient, and more just. The introductory post of the series is here.

My primary purpose here is to provide information rather than push a viewpoint. Nonetheless, I do not claim to hide my perspective. Rather, the purpose here is to present information as seen from a particular viewpoint (something akin to historical revisionism). Later posts in this series may include more focused discussion of my viewpoint, as I delve deeper into the regulations.

In this respect, my writing here differs from the many Wikipedia pages related to the H-1B that I have created, where I strive to stick to facts and avoid revealing viewpoints. These pages include: Labor Condition Application, Form I-129, Premium Processing Service, H-1B-dependent employer, public access file, American Competitiveness and Workforce Improvement Act (ACWIA), American Competitiveness in the 21st Century Act, H-1B Visa Reform Act of 2004, and Employ American Workers Act. For full disclosure, I also paid for the creation of the pages on H-1A visa and H-1C visa.

The following topics related to the H-1B visa are covered in this post.

  • Steps to getting started in H-1B status.
  • Relationship, similarity and differences between the H-1B and permanent immigration.
  • Key stages in the legislative history of the H-1B.
  • The H-1B annual cycle and cap. This is a very brief overview of the mechanics of the status. Workarounds, such as the use of Optional Practical Training and the use of other work visas as a temporary measure, are discussed.
  • Comparing the stated purpose and real use of the H-1B program. Once again, this is a brief summary that will be elaborated on in future posts.
  • How the H-1B compares with other options: L-1, TN-1, O-1, and H-2B (to name the most salient alternatives).

The following are not covered in this post and will be the subject of future posts.

  • The role of H-1B1 and E-3, and their effects on the market of technology workers from Singapore, Chile, and Australia in the United States.
  • A deeper look at the different occupations, intended employment areas, and countries of origin for users of the H-1B program.
  • A full analysis of the educational credentialism in the H-1B system, contrasted with other temporary and permanent immigration categories. I discussed some of these points in an Open Borders Action Group post, that Bryan Capan reblogged on EconLog. But I intend to cover it in more depth.
  • A better overview of exactly how the H-1B lottery works. Basically, understanding what your chances are based on whether you have or don’t have a master’s degree.
  • The role of the H-4, the status for dependents of H-1B holders, and how the two H statuses interact.
  • Comparison with analogous statuses in other countries, i.e., with other generic temporary skilled work visa categories.
  • What the whole H-1B application process means for people who aspire to having a job (temporarily or permanently) in the United States, particularly people who are not from any of the treaty countries (Canada, Mexico, Australia, Singapore, and Chile). Note that the current post touches only briefly on the issue from the perspective of a job-seeker.
  • A detailed discussion of the Labor Condition Application and U.S. Department of Labor investigative authority. This will included discussion of H-1B-dependence, its current and past prevalence, and its implications for the mid-level tech workers who account for about 50% of H-1B use.
  • A full discussion of various criticisms leveled at the H-1B program, by people such as Norm Matloff, Michelle Malkin and John Miano in their book Sold Out, and labor unions and labor-advocacy think tanks such as the Economic Policy Institute (see for instance here). Either in the same post or in a different one, I will also look at the pro-H-1B rhetoric used by different groups ranging from immigration lawyers to liberal think tanks and advocacy centers to libertarian think tanks.

The list of things I don’t cover here also includes other stuff I haven’t yet even realized is important enough to be discussed! But the above list is already pretty daunting.

The H-1B: the most important work visa

One of the most important sources of high-skilled migration to the United States is the H-1B visa. The H-1B is significant in at least a few ways:

  • For many high-skilled workers who enter the United States for work, the H-1B is how they are able to first enter.
  • Even those who enter for work in other ways (such as the TN-visa, L-visa, or OPT on F student status) often transition to the H-1B when they get the opportunity.
  • While many who come to the US on H-1B status eventually leave, many others settle permanently in the United States. Some do so by applying for permanent residency through one of the EB visas (which has a long wait time, and the H-1B allows them to work as they wait for it to come through). Others find true love among US citizens and permanent residents, marry them, and transition to lawful permanent residency through the Immediate Relative or Family based quotas.
  • Those on the H-1B who do go back to their home countries often play a key role in facilitating technology transfer and outsourcing and the international spread of technology.

Later, we’ll talk more about why so many people want or need to switch from other temporary work statuses to the H-1B.

There are two other close cousins of the H-1B: the H-1B1 (for Singapore and Chile) and the E-3 (for Australia). We will not discuss these variants in the current post, but will review them later.

Steps to getting into H-1B status

The following is the sequence of steps for getting H-1B status.

  • First, the employer files a Labor Condition Application with the U. S. Department of Labor, showing that the worker to be hired will be paid the same wage (or a higher wage) compared to U.S. workers within the company doing the same job, as well as others in the geographic area. The LCA has other stipulations regarding working conditions, strikes and lockouts (most of which are irrelevant for most employers). Note that (with the exception of the case of H-1B-dependent employers or employers who have been found to be willful violators) the LCA does not need to assert that no qualified United States worker is available! UPDATE: Alex Nowrasteh has a blog post on the Congressional discussions around whether to impose the requirement, and the ultimate decision not to do so.
  • With an approved LCA and other supporting documentation, the employer files Form I-129 with the United States Citizenship and Immigration Services (USCIS), a division of the Department of Homeland Security. Approval of this form gives the employee permission to start employment under the employer at or after the start date of employment, and until the end date of employment. The employee must be with the employer for the entire duration of H-1B: even a day of unemployment nullifies H-1B status. The Form I-129 can be filed at most six months in advance. For cap-subject applications, prior to considering a H-1B application, USCIS makes sure that it has space in its annual quota. Since the quotas start every fiscal year (October 1), most H-1B applications occur in the beginning of April and set a start date of October 1.
  • With an approved Form I-129, the employee can start work with the employer if present in the United States already (in other words, Form I-129 also allows for change of non-immigrant status; there is no need to file a separate Form I-539). However, if not present in the United States, the employee needs to obtain a H-1B visa from a consular officer at a United States consulate. Consulates are under the U.S. Department of State. After obtaining a visa, the person may enter the United States at most 10 days in advance of the start date of the job. At the port of entry (the airport for people flying in), the person receives a Form I-94 from the U.S. Customs and Border Protection Office of Field Operations officer (CBP is under the Department of Homeland Security).

H-1B and “permanent” immigration

There is a lot of confusion about the role played by the H-1B and its relation to Lawful Permanent Resident status (getting a Green Card). H-1B status is a dual-intent non-immigrant status. Let’s unpack that. Here, “non-immigrant” means that the status is a temporary status to be in the United States (in this case, for work) and does not provide any automatic path to permanent residency. The “dual-intent” part says that it is okay for a person on H-1B to also be trying to transition to a Lawful Permanent Resident (LPR) status.

There are two main routes to LPR status (aka “immigrant” status): Employment-based (EB) and family-based (this includes Immediate Relative (IR) and Family (F) statuses). The initial USCIS form for EB(-1,2,3) statuses (the analogue of Form I-129) is Form I-140 and that for F and IR statuses is Form I-130. (These are not the only routes; there are Diversity Immigrant Visas, refugees and various special immigrant categories, and the EB-5 category for investors and entrepreneurs; but let’s set all those aside since most of them aren’t very relevant to the sort of person who’s doing or considering a H-1B).

One key difference between LPR status and temporary statuses like H-1B is that, once LPR status is obtained, it is no longer necessary to maintain the connection (whether employment-based or family-based) that was the basis of getting the status.

In other words, once you have a green card, you can quit the job or divorce the spouse that helped you get the green card. LPR status can be revoked for various reasons (such as committing crimes or aggravated felonies, or being outside the United States for too long), but maintaining the original reason for acquiring the status is not required. LPR statuses also offer a path to citizenship: somebody who has been a LPR for five or more years can file Form N-400 for naturalization.

Another key difference between LPR status and temporary statuses is the complexity and time taken for the application process. There are actually two aspects to the time taken for this status, that operate in parallel (so the longer of these is the constraining factor). These are:

  • The processing time for applications: Processing times for Form I-140 applications can be quite long, varying from 5 months to a year. In addition, some EB categories require a separate process called PERM labor certification prior to filing Form I-140. PERM labor certification is similar to the LCA, but with much more onerous requirements, and can take several months to obtain. Essentially, the goal of PERM labor certification is to establish that the worker has truly unique skills and the company is unable to hire a qualified United States worker with those skills.
  • Independent of this processing time is the time taken for a visa number to be available. Permanent immigration is controlled by a complicated system of quotas introduced by the Immigration and Nationality Act of 1965, that controls the number of permanent immigration slots that are released every year by the preference category as well as the country of chargeability. The queues for these are managed by the Visa Reporting and Control Division and published in the Visa Bulletin. Particularly for large countries like India, China, and Mexico, these categories can be backlogged by over a decade. Note that the potentially indefinite backlogs for “permanent” migration are consistent with its meaning: whereas with temporary worker needs, it does not make sense to have the application queued for several years, this might make sense for a permanent worker or a family member.

The reason the total time taken is the maximum rather than the sum of these two wait times is that the priority date (that determines an application’s position in queue) is taken as the date the Form I-140 was received (and for applications with labor certification, the date the labor certification petition was received). (Note that the way the caps operate for EB status is different from the way they operate for H-1B: the H-1B quota is reset annually, and applied at the time Form I-129 is adjudicated, whereas the quota for EB status can extend indefinitely and therefore there is no upper limit on how far the backlog can grow).

In addition to the max of these two, there could be some processing time for the Form I-485 (Adjustment of Status application) if the employee is already in the United States in H-1B or another status, or to get an immigrant visa, if the employee is outside the United States. Generally, the processing for the Form I-485 or immigrant visa begins a little before the applicant’s priority date becomes current, so that the two finish in parallel.

The upshot of this is that getting an employee on an immigrant status is a process that can take somewhere between several months (if the employee happens to be from a country that doesn’t have huge backlogs) to decades (if the employee is from a country with huge backlogs). Regardless of how brilliant the employee is, therefore, this is not a very effective solution for most employers, who are operating at much shorter timescales with respect to their hiring needs. For this reason, even employers who are interested in sponsoring employees for a green card may initially hire them on a H-1B so that the employee can start working for them while the steps to transition to immigrant status are ongoing. This relationship has been implicitly acknowledged with the American Competitiveness in the 21st Century Act (AC21), where people with long-pending Form I-140 or Form I-485 applications can extend their H-1B while waiting for it to go through.

When the EB category and the current incarnation of H-1B were first introduced in 1990, the EB category started off without backlogs. Hence, those employers who sought workers on a more permanent basis went the EB route, and those who wanted temporary work went the H-1B route. As the EB category started developing backlogs, and demand for high-tech workers increased overall, the pressure on the H-1B status increased. Since it is extremely difficult to adjust the overall rate of permanent immigration (since that involves fundamental changes to the Immigration and Nationality Act), the EB category will likely continue to be severely limited, and the H-1B will continue to be the first step for many workers, including those who qualify for EB status.

Key pieces of legislation that have shaped the H-1B

H visas were originally introduced with the Immigration and Nationality Act of 1952, with a H-1 for skilled workers and a H-2 for unskilled workers. The Immigration Nursing Relief Act of 1989 (text) created a separate H-1A visa for nurses, and renamed the existing H-1 program to the H-1B program; however, the substantive structural changes to H-1B would occur with the Immigration Act of 1990 (described below). The H-1A would later be replaced by a H-1C visa, a status that was retired in 2009 and is no longer granted.

For more on the early history of the H-1 visa, prior to its splitting into the H-1A and H-1B, see the post A Legislative History of H-1B and Other Immigrant Work Visas by a blogger critical of the H-1B program.

Below are the key legislations affecting the H-1B:

  • Immigration Act of 1990 (IMMACT), passed by the 101st United States Congress and signed into law by President George H. W. Bush, introduced the basic rules of the H-1B: a three-year visa that could be extended another three years, an annual cap of 65,000, a Labor Condition Application with rules regarding prevailing wages, and a concept of Specialty Occupation. Surprisingly, every phrase of the preceding sentence continues to describe the H-1B regime today, even though, in practice, a number of hacks have led to far more H-1Bs effectively being available. But more on that later. Note that since this Act made it through the first stages of its legislative process in 1989, it is sometimes said that the H-1B was introduced in 1989, but its actual implementation (“going live”) happened only in 1990.
  • American Competitiveness and Workforce Improvement Act (ACWIA), passed by the 105th United States Congress and signed into law by President Bill Clinton on October 21, 1998, offered temporary reprieves from the caps, but otherwise was a victory for restrictionists and advocates of labor. Specifically, it introduced the concept of H-1B-dependence and imposed additional LCA attestation requirements (around displacement, secondary displacement, and recruitment and hiring) for H-1B-dependent employers and willful violators. With that said, there were discussions of imposing the requirement on all employers, but these were successfully defeated. For more, see Alex Nowrasteh’s post.
  • American Competitiveness in the 21st Century Act (AC21), passed by the 106th United States Congress and signed into law by President Bill Clinton on October 17, 2000, extended some temporary reprieves and introduced a number of hacks that effectively expanded H-1B availability, while offering some minor sops to the other side. These hacks will be discussed later in the piece.
  • H-1B Visa Reform Act of 2004, part of the Consolidated Appropriations Act, 2005. The main relevant provision here was to add 20,000 slots for people with graduate degrees every year. There were also some changes (in the direction of tightening, but also toward more standardization) to the process for the LCA.
  • The H-1B1 (for Singapore and Chile) and E-3 (for Australia) were created as a result of free trade agreements that happened between 2003 and 2005: Singapore–United States Free Trade Agreement (ratified 2003, effective January 1, 2004), Chile-United States Free Trade Agreement (ratified 2003, effective January 1, 2004), and Australia–United States Free Trade Agreement (ratified 2004, effective Janaury 1, 2005).

Since 2004, there does not appear to have been any new legislation regarding H-1Bs, with a few minor exceptions related to additional fees and attestations:

  • Employ American Workers Act (signed into law in February 2009 with a two-year sunset provision, not renewed): This basically treated any company that was a recipient of TARP and Federal Reserve Act Section 13 funds as a H-1B-dependent employer for the purposes of the LCA. These employers needed to make the additional attestations required. Once a company had paid back all the funds they were no longer subject to these requirements.
  • Public Law 111-230, that imposed an additional fee of $2,000 for H-1B petitions (Form I-129) between August 14, 2010 and September 30, 2014 (extended by Public Law 111-347 to September 30, 2015), in cases where employers had more than 50 H-1B workers and more than 50% of their workforce was H-1B workers. These filters were stricter than those for classifying an employer as H-1B-dependent. The fee has expired.
  • Public Law 114-113, that imposes an additional fee of $4,000 for H-1B petitions (Form I-129) filed between December 18, 2015 and September 30, 2025. This effectively doubled the Public Law 111-230 fees.

Loosely speaking, of the 1990-2015 H-1B regime, the latter half has been legislation-free. Changes have happened, but mostly at an administrative and executive level, with the United States Citizenship and Immigration Services (USCIS) issuing additional guidance on changing interpretations of existing provisions. This extreme stability is not indicative of anybody being satisfied with the status quo — there is general consensus within the Beltway that some liberalization in H-1Bs would be desirable. Rather, as I discussed in my introductory post, it’s a phenomenon of gridlock: high-skilled immigration is treated as a deal-sweetener that different sides want to tack on to their preferred bills to make them more palatable, but isn’t important enough or urgent enough for anybody to pass immediately.

The history of temporary migration of skilled workers prior to the H-1B is important to understand, and we’ll probably cover it in our origins of immigration restrictions series. However, for reasons of space and focus, we’ll restrict discussion here to the H-1B as it started in 1990.

The H-1B annual cycle, lottery, and workarounds

My overview here is not really intended as either a definitive description of law or an action guide. For a more definitive and legally accurate description, see the USCIS page about the H-1B cap season for Fiscal Year 2017. For something geared more to potential applicants, see the RedBus2US “All about H1B Visa Cap” guide.

There are two aspects of the H-1B that make it a fickle tool for employers, over and above the legal fees and administrative overhead involved.

First, the annual cycle. The H-1B cap is applied separately for each fiscal year. The cap applies only for the worker’s first H-1B at an institution that is not a nonprofit research institution (in other words, it doesn’t affect H-1Bs issued to professors and postdocs in academia). It also does not apply to workers transferring jobs, or extending beyond the first three years to another three years (or possibly more if the worker has a pending I-140 or I-485). It does apply for workers who leave after a H-1B is over and then return for a new H-1B.

The annual cap is set to 65,000 (of which 6,800 are set aside for the H-1B1, but unused H-1B1s are returned to the general pool the next year, so effectively the annual number of slots is pretty close). There are an additional 20,000 slots for people holding master’s degrees from accredited United States universities. That’s a total of 85,000. There are approximately 50,000 successful applications from nonprofit research institutions. A total of about 135,000 new H-1B Form I-129s are approved annually, 85,000 of them cap-subject.

The year for which the H-1B caps apply annually is the Fiscal Year (FY) and it starts October 1 of the preceding calendar year (for instance, FY 2017 starts October 1, 2016). Form I-129 petitions can be submitted at most six months in advance of the start date of employment. Thus, all cap-subject applications need to be made around April 1, with a start date of around October 1. The USCIS generally stops accepting applications after the first week of April. Note: While rereading, I realized that there have been many years, particularly those in the aftermath of the 2007–08 recession, when the quota has taken much longer than one week to be filled. However, it now appears to fairly consistently get exhausted in the first week. My guess is that the only thing that would make the quota extend out much further would be either a significant U.S. recession or other significant changes to the world economy. If you’re interested in data on what the cap was in different years and when it was reached, check out these two links on RedBus2US: H1B Visa Total Cap Stats from 1990 to 2017, Trend Plot until 2017 (information on the size of the cap and how it has varied) and H1B Visa Cap Reach Dates History 2000 to 2017 – Graph – USCIS Data (information on the date the cap was reached). The information in the links is all based on data available on the USCIS website but presented in an easier-to-digest format.

Of the 200,000 or so applications received, it runs two lotteries: one lottery picks 20,000 of the master’s degree applicants, and the second picks 65,000 from everybody in the pool who failed to make it to the first 20,000 (so master’s degree holders get effectively two shots, others get only one). [Slight note: USCIS conducts the lottery before adjudicating the petitions. So it actually gets slightly more petitions through the lottery than the annual cap. Essentially, it budgets how many to select in the lottery based on its estimated rejection rate. If it undershoots, it will announce that there are slots remaining, and accept more applications.]

There are some obvious problems with practical usability of this sort of system. An employer who realizes in December the need to hire a worker needs to wait until April to apply, and wait until October for the worker to start. Even worse, an employer who finds a worker to hire in June needs to wait till October of next year to have the worker actually start. And that’s ignoring the issue of the low chances in the lottery. For workers without master’s degrees from the United States, the lottery chances are less than 50% (more precise number-crunching in a later post, though naive estimates, such as those used in this San Francisco Chronicle piece, place the number at 25%). So in expectation the employer may have to wait till October of the year after next.

Admittedly, this isn’t as bad as the long wait times (both processing times and the queue wait times on account of visa number availability) for the EB category. However, it’s still not a very practical time horizon except for large companies that can afford to wait, or multinationals that have carefully built a business model to cope with the regulations. Multinationals (whether it’s high-tech companies like Google or mid-level companies like Infosys) that are already employing the person in another country and want to move the person to the US office can afford to wait: the person stays employed in the office abroad, and at the appropriate time, moves to the US. Note that multinationals that do this may also be able to use L visas in some cases, thereby avoiding the H-1B’s annual cycle. Small companies that are based only in the US, on the other hand, often find it harder to afford these time horizons.

One workaround is the use of other more temporary statuses to start employment and then transition to H-1B when one makes it through the lottery. One example I previously discussed was the use of Optional Practical Training. A just-graduated student can start working for an employer on OPT, and then transition to the H-1B status next year. The OPT is 12 months long, which is sometimes not enough to meet the H-1B’s annual cycle (for instance, for somebody who starts work in July) so the OPT has a cap gap extension for people with pending Form I-129 applications in cap-subject categories. There is also a 24-month STEM extension that can be used by a person with a STEM degree. With this STEM extension, plus the H-1B cap gap extension, it is possible to get three shots at the H-1B lottery while working using the OPT. For those with master’s or Ph.D. STEM degrees from United States universities, therefore, the combination of the STEM extension and the H-1B masters quota makes it quite likely that the person will be able to eventually secure the H-1B if the person gets an employer willing to sponsor him or her.

Other temporary and more restrictive visas people might use include the TN-1 (Canada), TN-2 (Mexico), and O-1 (all countries). These are discussed as full-fledged alternatives to the H-1B in a later section, but they are also useful as complements. The TN-1, in particular, is useful because it can be extended indefinitely in three-year increments, allowing a person to keep trying his or her chances at the H-1B lottery while continuing to work. An initial O-1 visa is granted for up to three years, also giving enough time to get a few shots at the H-1B lottery while working.

Note that the role OPT plays with relation to H-1B is similar to the role H-1B plays with respect to EB: as a potential temporary stop-gap while the other, slower status is still in process.

Interestingly, one of the ways that smaller companies end up hiring H-1B workers (in addition to the OPT route) is people who change jobs from big companies. Essentially, you start your H-1B at a big company, then subsequently move to a startup. The American Competitiveness in the 21st Century Act (AC21) exempts such cases from the H-1B cap, therefore avoiding both the lottery and waiting for the annual cycle (note, however, that the person does not get the full six years for the new H-1B but only whatever is still remaining of it). As it is, many people start out at a big company to make some money and get some experience before moving to a smaller company. For foreign workers, H-1B regulations offer yet another reason for this kind of trajectory.

The stated purpose, and real uses, of the H-1B

The stated goal of the H-1B is to temporarily employ foreigners when the supply of skilled workers in the United States falls short of employer needs. In other words, the H-1B is intended as a stop-gap measure to address temporary labor shortages for skilled workers. It is not intended to be a path to permanent migration (for that, there is the EB category, discussed earlier). It is also not meant to be restricted to cases of truly outstanding people (for whom, in addition to the EB-1 category, there is the O-1 category for temporary workers). It is also not intended as a means for technology transfer, i.e., the goal of the H-1B is not to train people for a few years in the United States so that they can return to their home country with increased productivity and better practices. Rather, it is meant to address cases where employers have a temporary need for additional workers and can’t find people in the United States fast enough, so they hire people from abroad briefly, and then once the supply of workers in the U.S. catches up, they replace the foreign workers with the now-appropriately-qualified U.S. workers. This stated goal of the H-1B is the justification for a fee on H-1B applications (of $750 or $1500 depending on the employer’s size) whose funds are used for improving science education and workforce training in the United States.

In the real world, employers don’t use the H-1B in that way. They do not “diligently search for a US worker and only reluctantly hire a foreigner.” Rather, the significant legal fees and loopholes around the H-1B lead to two broad kinds of use cases: multinationals that have built a business around arbitraging different strength profiles, income differences, and skillset differences between countries, as well as companies with enough deep need for specific skilled workers that they are willing to incur additional legal fees and the tyranny of the H-1B’s annual cycle to get a particular worker that they want.

Let’s examine these two use cases in a little more detail:

  • The most quantitatively significant (accounting for about half of H-1B use) is mid-level technology employees by large multinational technology/software firms to which other firms outsource their work. The Economic Policy Institute (a think tank that advocates the interests of labor, stereotypically construed) notes that the top ten users of the H-1B program, that account for half of H-1B use in the United States, all fit in this framework: Cognizant, Tata, Infosys, Wipro, Accenture, HCL America, Tech Mahindra SATYAM, IBM & IBM India, Larsen & Toubro, and Deloitte. Many of these have either their roots or significant operations in India, and that is a big part of how half of new H-1Bs are granted to people from India. Most of these workers don’t go on to transition to LPR status. Partly, this is because they don’t qualify for the higher bar set for EB status. Their short-term employment in the US office allows them to take back relevant technology and skills to their home countries, and, of course, to save money for their personal use. (For more information on the distribution of H-1B visas and approvals by country, industry, and employer, see the Wikipedia page section).
  • The other use case is high-skilled technology firms in sectors (programming, banking, quantitative finance) that need to hire workers. There are two main ways that these companies connect with the H-1B workers to fill these positions: some of the workers completed higher education in the United States and get on the job market at the end of their higher education. Others may be hired by the company at an office in another country and then transferred to the United States office (for instance, Google or Microsoft might hire a worker in Bangalore or Hyderabad, and when the worker later gets promoted or moved to a division in the company that is only at the company’s main headquarters in Mountain View or Redmond, sponsors a H-1B for the worker). The business model of the hiring companies is not built around the workers returning to their home countries; in fact, the hope is that the workers will be able to stay in the United States for as long as necessary. Many of these employees may later be sponsored for EB status if they are considered sufficiently valuable to the company. A good summary of this use case, in contrast with the preceding one, can be found on LinkedIn.

While the first use case has been decried (by the EPI as linked above, and by others) for the way technology transfer contributes to more offshoring of jobs, the second use case has been decried for creating more permanent competition in the market for skilled labor, leading to lower wages and reduced incentives for Americans to enter these sectors. With that said, not all critics of H-1B programs are critical of both kinds of use cases. Some people, like current U.S. Republican Presidential primary leader Donald Trump as well as Y Combinator co-founder Paul Graham, are critical of the first use case of the H-1B but supportive of the second. UPDATE: At the time I wrote this post, Trump hadn’t put out a formal set of immigration policies, so I was mostly going by remarks he had made. The most recent policies he has put out seem to suggest that he is opposed to both types of uses of the H-1B. For more, see Alex Nowrasteh’s post on the subject.

How does the H-1B compare with other options?

There are a number of alternatives to the H-1B, but none of them are good enough to render the H-1B unimportant. What the alternatives do help with is, in many cases, reducing the “pressure” on H-1B somewhat. So if you’re a H-1B applicant, you might want to thank the many other alternative visas for taking some of the competition out. A good place to check out the set of available work visas that make sense for each occupation is US Work Visas: Which One Shoud I Apply For? on VisaPro.

  • The L visas are visas available to multinationals that allow them to transfer people working for the same company but in another country.

    Advantages: Fewer restrictions on the type of occupation and educational qualifications, longer period (7 for the L-1A and 5 for the L-1B, as opposed to 3 + 3 for the H-1B.

    Disadvantages: Only available to multinational companies, which excludes many technology companies, particularly the smaller ones.

    Microsoft has been known to use L visas creatively: it first gets people to Canada on a work visa, whereby they can visit the Redmond office (in the United States, close to Seattle, Washington close to the Canadian border) with relative ease, and eventually transfers them over to the Redmond office.

    You can see more detailed comparisons here and here.

  • The TN-1 status for Canadians, and a similar but somewhat more restrictive TN-2 status for Mexicans, allows people from these countries to work in the US in renewable 3-year increments.

    Advantages: The TN-1 for Canadians is uncapped, and can in principle be renewed many many times.

    Disadvantages: The set of occupations that are eligible for TN-1 is narrower than for H-1B. For instance, Computer Systems Analysts are TN-eligible, but mere computer programmers aren’t. The application and renewal process for TN-1 is also less standardized, and even though multiple renewals are possible in principle, renewals are often rejected for unclear reasons.

    You can see more detailed comparisons here and here.

  • O (“Outstanding”) visas are available to “aliens of extraordinary ability in the sciences, arts (including television and motion pictures), business or athletics.”

    Advantages: No caps, unlike the annual 65,000 visa cap for H-1B. Also, students and exchange visitors who came to the United States on J status can get an O-1 visa but cannot apply for the H or L visa without completing the 2-year foreign residence requirement.

    Disadvantages: More documentation and proof needed of extraordinary ability, with a particular focus on credentialism and formal academic accomplishment. This makes many people ineligible. Many star programmers, who might command several hundred thousand dollars in salary, may not be able to qualify for this visa.

    You can see more detailed comparisons here and here.

  • H-2B visas: The H-2B is a temporary visa for low-skilled work. As best as I can understand the law, there is no restriction on using the H-2B for high-skilled work. However, also as best as I can make out, it is quite rare to use the H-2B for any job where the H-1B could be used. An example of a case where there may be genuine ambiguity regarding whether the H-1B or H-2B is most appropriate is the case of a chef or cook. Specialty chefs may be able to get H-1Bs, but “food preparation worker” is a typical H-2B occupation.

    Advantages: No need to file a Labor Condition Application. Suitable in cases where wages are lower. No need to demonstrate educational qualifications. Lower filing fees, and savings can be significant if hiring large numbers of workers together. Also, instead of an annual cap, there is a twice-a-year cap.

    Disadvantages: Additional work is needed to obtain a H-2B Temporary Labor Certification, which in turn requires posting a job order publicly with a State Workforce Agency. The application process can be initiated at most 75 days in advance, making it harder to plan ahead. Premium Processing is currently disabled. The H-2B is made initially available for at most one year, and can be extended in increments of at most a year, to a maximum duration of three years. This is less than the 3 + 3 for the H-1B. Also, whereas the H-1B can be extended while employment-based applications for lawful permanent resident (either the Form I-140 or the Adjustment of Status) are pending, there is no such provision for H-2B.

For better or worse, the majority of high-skilled immigrant workers and companies sponsoring them use the H-1B despite the uncertainty of the application process, largely because it has a relatively large quota, relatively low burdens of proof, and accessibility to people who don’t have a lot of bureaucratically determined academic credentials as well as to companies that aren’t multinationals with deep pockets.

PS: After drafting an initial version of this post, I Googled around for lists of common misconceptions related to the H-1B, and came across this article. I was pleased to see that the draft I had covered about half the myths directly, and alluded to the relevant material that addresses the remaining half. I also made some edits to add in more explicit mention of the material related to the myths I didn’t explicitly cover.

Full disclosure

  • I am currently working in H-1B status in the United States. I started work on this post while I was still in student status.
  • See the note at the beginning of the article on Wikipedia pages I created while researching for this post.
Creative Commons License Open Borders and the Golden Rule is licensed by Joel Newman under a Creative Commons Attribution 3.0 Unported License.