Malarkey, contends the H-1B critics. "That 99.7% figure is egregiously misleading, but Congress will happily accept it, as will the press," H-1B's most vocal critic, Norm Matloff, a University of California-Davis computer professor, writes in his H-1B/L-1/offshoring e-newsletter. He analogizes the H-1B law with loopholes in the law that allow many of the rich to not pay their fair share of taxes. "It's funny," he writes. "If I tell someone that big corporations and some wealthy individuals pay rather little in taxes, he won't say that the IRS isn't enforcing the law well enough. He will readily understand that the problem is the gaping loopholes in the tax code, rather than weak enforcement. It's the same with H-1B--i.e. the problem is loopholes, not enforcement--but no matter how often [programmer] Rob Sanchez and I repeat this simple fact in our respective e-newsletter, people just don't get it."
Another critic, Roy Lawson, who's a board member of the Programmers Guild, an IT workers' advocacy group, challenges the way the Labor Department accounts for prevailing wages in its Labor Condition Application database. According to his analysis of the LCA database, 26 programmer analyst jobs approved by the Labor Department were for salaries averaging $20 million. "I don't know if this was fraud intended to screw up the averages, but none the less there are entries for programmer analysts averaging above $20 big ones," he wrote me last week. "There was one lucky programmer analyst bringing in $454,484,721. Unfortunately, it wasn't me. These 'Million Dollar' programmer analysts drive the average up by over $15,000--intentional or not this is misleading. I think the DoL should force those companies if they were actually approved to pay up. Then see who is laughing."
No one really believes that such humongous salaries exist, except in our dreams. But if Lawson's calculations are right, it suggests that the prevailing wage rates cited by Labor aren't accurate.
The controversy over H-1B is twofold. The first--and one that won't go away anytime soon--is over whether the visas are needed. Matloff, Lawson, and their allies contend that there are plenty of qualified unemployed and underemployed IT professionals who can fill unfilled tech jobs if employers paid prevailing wages. They see employers using the H-1B visa program as a way for employers to hire cheap labor. But many employers contend that a skilled labor shortage is real and that they must go overseas to recruit help because not enough qualified business technologists can be found in the United States.
It doesn't matter whether Matloff et al or tech worker-starved employers are right. The hullabaloo over paying prevailing wages can be resolved by Congress, which should change the law to give the Labor Department more power to determine, as well as teeth to enforce, prevailing wages. Somehow I doubt this Congress will act anytime soon.