Three Developments in Nonimmigrant Worker Programs

By David North on December 30, 2011

Three developments, two grim, and one intriguing – and all relating to nonimmigrant worker programs – deserve a few lines of type as the year closes. The first relates to high-skilled workers, and the last two with low-skilled ones.

The Importance of Affiliation. In a blog earlier this month I pointed out how an affiliate of Harvard University and the U.S. Department of Labor had ganged up to use an obscure part of the law to lower the wages of an H-1B worker hired to design software for a Boston-area hospital The question before DoL related to the definition of the word "affiliated" and whether the hospital in question actually had the right kind of link to Harvard University. The department ruled that the tie existed, so a less demanding prevailing wage calculation technique associated with such institutions could be used.

This set off a communication from a friend deep in the bureaucracy who pointed out to me that not only did the law in question, the American Competitiveness and Workforce Improvement Act of 1998 (ACWIA), make it easier for certain institutions to pay lower wages to their H-1B workers, it also allowed them access to such workers outside the normal numerical ceilings, simply because of an affiliation with a university.

Both the 65,000 general cap on H-1B workers and the 20,000 cap for those with advanced U.S. degrees are typically filled at some point in time, but the "affiliated" entities are spared any concerns about such matters. So, these places are then free to ignore talented U.S. workers who would love to have these jobs, and hire H-1Bs instead.

Since the value of the affiliation could be very high to the institution involved, and since some of these affiliations were fuzzy at best, he reminded me, that USCIS had issued a Policy Memorandum in April entitled "Additional Guidance to the Field on Giving Deference to Prior Determination of H-1B Cap Exemption Based on Affiliation."

The guidance, in a word, was if USCIS had ever decided that an H-1B-using institution was affiliated with a university, don't worry too much about re-thinking that decision.

Congress as Scrooge. Meanwhile, Congress made a somewhat more straightforward decision to delay a wage increase for another bunch of nonimmigrant workers, the unskilled non-agricultural ones that labor in the H-2B program. A federal judge in Pennsylvania, hearing a wage dispute case involving a group of workers in the H-2B program, had ordered a nationwide wage increase for all workers in the program, earlier in the year, and after some complications that wage increase was set to go into effect on November 30, 2011.

Then some influential Scrooge or Scrooges in Congress, acting for the H-2B employers, decided that those workers (often in nursery or forestry work) should not get a Christmas raise. It was postponed to January 1, 2012. (One whole month.) The Scrooges inserted language to that effect in the massive "Consolidated and Further Continuing Appropriations Act, 2012".

Unfortunately this stingy move, which must have hit some workers on Christmas tree farms, did not get any press attention. But it was covered in the immigration lawyers' trade paper, Interpreter Releases, in its December 5 issue (p. 2823).

FICA and the Islands. Mainland employers won both the rounds discussed above, but a tiny band of employers, of a certain class of nonimmigrant workers in the Commonwealth of the Northern Mariana Islands (CNMI), are protesting loudly that they will have to pay FICA taxes on the wages of their alien workers. (People in these islands, just north of Guam, are probably unaware that Mainland users of the H-1B and the H-2B program have been paying such taxes for decades.)

The workers in question had been brought to the islands in the bad old days when local politicians ran the islands' immigration policy, rather than the federal government. The once-jailed Jack Abramoff, as the islands' well-paid lobbyist in Washington, kept Congress from correcting the situation for years. After federal control over immigration was established, DHS made a series of interim arrangements (criticized in a blog of mine headed "Obama Caves to Ghosts of DeLay, Abramoff on CNMI Migrant Rules") which created a CNMI-only temporary legal status for these workers.

Subsequently, the local press reported, the Internal Revenue Service decided that workers in this new category (CW-1) should be covered by the Social Security and Medicare systems, and thus both workers and employers should pay FICA taxes. For an islands take on that decision see this news article.

Even in the bad old days of the sweatshops in these islands, the garment manufacturers paid these payroll taxes, so the rule on the CW-1 workers is not without local precedent.

While some good friends of mine, who are advocates for these CW-1 workers, say that imposing the taxes on this very-badly paid work force is unfair, and that the workers may never get any benefits from their FICA payments, I disagree, as, more significantly, does the local delegate to Congress, Kilili Sablon (Ind-CNMI). He argues that setting up a situation in which employers are given a bonus, in effect, for hiring alien workers and for not hiring (FICA-covered) citizen workers, is a bad idea. (An issue with another group of nonimmigrant workers, those admitted under the State Department's Summer Work Travel program, an issue explored by my colleague Jerry Kammer in a recent series.)

I think that is true everywhere under the U.S. flag. Further, it is highly likely, particularly in this administration, that the number of deportations from these islands will remain low, and thus many of the CW-1 workers will probably be in the islands long enough to cash in on their FICA contributions.

These workers also should be put on the path to voting status, so that the people (the aliens) who do the actual physical work in the islands can participate in the local politics. But that is a different story.