Lawmakers continue to wrangle over a bill that would overhaul the nation's immigration system. One provision in this bill would allow companies to import a lot more skilled workers. The tech industry has lobbied hard for this, despite fears among some American workers about the extra competition.
Illinois Senator Dick Durbin says the bill has American workers covered. "Employers will be given a chance to hire a temporary foreign worker when truly needed. But first, they'll be required to recruit Americans. No exceptions, no excuses," he said.
Still, making companies recruit Americans isn't the same as making them hire them.
If you talk to disgruntled tech workers much, sooner or later one of them is going to send you this video. It shows a Pittsburgh immigration lawyer at what looks like a seminar for clients in 2007. In the video, he's telling clients what to do when they want to sponsor one of their foreign workers for a permanent visa — a green card. The government requires employers to prove they looked for American workers first. So the companies have to advertise the job. But the lawyer tells them they don't have to advertise it too conspicuously.
"Our goal is, clearly, not to find a qualified and interested U.S. worker," the lawyer in the video says. He later adds, "We're going to find a place where ... we're complying with the law and hoping — and likely — not to find qualified and interested worker applicants."
Immigration law firms do this all the time: They show employers how to recruit Americans without actually having to hire them. This lawyer didn't want to talk to NPR, maybe because anti-visa activists have been sending this video around for years. It's Exhibit A in their argument that recruiting rules are a sham.
In the parts of the country where tech companies are prevalent, this kind of "faux recruiting" is common knowledge. But people in the industry quickly learn not to waste their time on certain job listings, says Orion Hughes, a software tester.
"A lot of us are aware of that ruse," he says.
Hughes and others avoid the listings with overly specific requirements, such as the number of years in "the job offered." That often means the employer just wants to make permanent a temporary foreign worker who's already in the job. And if you're stubborn enough to apply anyway, Hughes says that interview is going to be awkward.
"If you want to put yourself in that manager's shoes, it's an uncomfortable situation for them," he says. "They will [have a] kind of a sour facial expression, and they'll go from one question to the next. They are finding some reason to exclude you."
Employers usually go through these motions only when they're sponsoring a foreigner for a permanent visa. But now the Senate immigration bill would extend a similar requirement to temp workers: the foreigners on the H-1B visas which have become so common, and controversial, in lower-end tech jobs. The bill would have employers post those jobs online first, and there'd be more recruiting rules for companies that use H-1Bs a lot. It sounds good, but it's a move that seems to ignore all the ill will that's been generated over the years by insincere recruiting.
"No one is ever hired," says Bruce Morrison, a former Democratic congressman from Connecticut.
Morrison helped design the current work visa system, but now he's an immigration lawyer and a lobbyist. The "good faith" recruiting process, he says, comes with a fundamental flaw, he says.
"Which is, it doesn't start until you've already picked the person you want," Morrison says. "The decision whether to hire an American already happened — and you didn't."
Morrison's one of many experts who've given up on these recruiting rules. But he offers a solution to the problem: Have the government charge employers a heftier fee when hiring a foreigner.
"Create the economic circumstance where it costs you a lot more to hire a foreigner," Morrison says. "And you'll only do it if you can't find an American who's suitable."
The Senate bill takes small steps in this direction, but Morrison thinks it's not nearly enough. The bill actually removes the recruiting rule for some of the permanent visas — and he's happy about that. Morrison's been lobbying to get more green cards to skilled workers. But now it looks like the "recruit-Americans-first" idea is being shifted to temporary visas, the H-1Bs.
That means the tech industry will still be plagued by insincere job listings and bogus interviews, and the undercurrent of resentment that they create.