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The problem is it's one sided.

The main issue is US employees are fortunate enough to have protections under the law, protections hard fought by unions, literally. Those protections cost money but are sensible, such as safety regulations, child labor laws, the right to not be discriminated against, minimum wage, no harassment, physical violence, etc.

When using Indian labor offshore, or any underdeveloped economy really, those protections are mostly gone because India doesn't protect their employees like the US does, which is also unfortunate.

Companies also benefit from the US legal system and infrastructure, including the liability protection from corporations, tax breaks, roads, public utilities, police, etc, all which are paid for by taxpayers.

Of course, to be fair, US corporations who benefit mostly from foreign labor should move their corporation to the country of their labor. Of course they don't want to do that, because of corruption, subpar legal system, infrastructure, etc. They want it both ways. Protection and benefits from the US government and cheap labor where the labor doesn't have the same protection.

It's not just wages US labor is losing. To compete, US labor has to give up all our labor benefits while still paying for corporate benefits through tax dollars. Taxpayers are also on the hook for people who can't find jobs while corporations do nothing but benefit. It's really another wealth transfer from the bottom and middle, up.

Besides it's against the spirit of the law. I'm ok with offshoring if US corporations are OK with losing all their tax breaks. I didn't think so.

Note that this is not really about offshoring. Offshoring falls under the "free movement of every form of capital and goods, except labor" that I mentioned and it is complicated for everyone involved. You get competition from labor without legal protections which can't move to places where they would have such protections, nor easily obtain them at home. We get companies that are pretty much untouchable by our legal systems. On the other hand, you/we get cheaper goods and a lot of people get better jobs than the alternative. Short of encoding better labor rights at the WTO/U.N. level, I don't see a fair long term solution for that one.

In the case of foreign workers in the U.S., labor protections and laws apply (except perhaps some employment mobility in some industries), and the employees involved pay taxes into the U.S. (without representation, I might add). So I don't see those as being the same situation, even if the final underlying cause (severe wealth disparity among nations due to historical reasons) is the same.

Yes, H1B is a different animal than offshoring as it is much more fair to the worker. Funny that the H1B has much more regulation than offshoring. That's probably why it's more fair.

Also, tech workers uses computers and do have free movement by remoting. Managers typically don't allow it. Economically, that's a heck of a lot of power.

Anyway, I'm pretty content with the current status of H1B in spirit. This company obviously didn't attempt to find domestic labor before using H1B, so they are in violation of the agreement. I think the employee(s) responsible should stand trial to see if the loopholes are indeed lawful. If not, I think they should be fined or imprisoned, whatever the law allows. I think they should lose all H1B privileges for 2 years and all of their current H1B's should be allowed to move to another US company. Non of that will never happen though.

It's only fair, you and I would face trial for shoplifting a $1 candy bar, something paid for by taxpayers that directly benefits corporations through determent, among other things.

Has anyone really faced trial for theft of a $1 candy bar? I'd imagine that turns out to be a ticket, a barring from that store, and on your way...

Absolutely, happens all the time. If a company security team catches you, it's up to the company to press charges, but they can and they do. It includes arrest and trial. Here's an NPR story on it I found with Google.

http://www.npr.org/2012/11/15/165218744/busted-what-happens-...

> I keep failing to see why we are all supposed to open world markets to the flow of every sort of capital and goods except labor, or why someone deserves a job for being born American, rather than Indian (Note that I feel the same way when Americans are disadvantaged elsewhere for similar reasons[1]).

Neither of those conclusions are necessary in order to be against H1B abuse. Abusers of the program distort the labour market artificially and depress salaries by replacing Americans with foreign workers who are tied to one employer and therefore unable to negotiate for a proper salary. The italicized portion is what we should find troubling, not merely that foreigners are moving to America to work. This results in a transfer of wealth from the working population to employers who no longer need to pay prevailing market wages.

A lot of this would be solved (or at least greatly improved) if H-1Bs were awarded via auction rather than lottery.

I'd like to add that full rights for guest workers could possibly solve the problem outright. Let the worker walk out and find a better job the day they land in the airport or cross the border or change status to worker. Make any "bond" illegal and declare the employer may not seek restitution for the worker walking out in search of greener pastures.

While this is definitely helpful, it solves a different problem.

You're assuming that H1Bs are only awarded to highly skilled workers. Therefore, if they are being "underpaid" they could get other jobs that would pay them more.

However, this is not currently true. Currently the problem is that certain companies are exploiting the H1B program to get workers who are "high skilled" but only meeting the minimum requirements[1]. As a result, these "minimum requirement" H1B holders are not being "underpaid" they are appropriately paid for their skill level, while still:

1. Hindering higher skilled workers from attaining H1Bs.

2. Undercutting the current US workers salaries.

Meanwhile, giving H1Bs via auction(ideally, based on the employees yearly compensation), ensure that the US only takes the highest skilled workers[2]. Encouraging an import of the world's best. Larger salaries for H1B holders on average, therefore more taxes collected.

[1] Because the minimum requirements are actually quite vague and to anyone not in the tech field, its really hard to asses the technical abilities of a potential employee.

[2] Utilizing salary as a proxy for skill, based on capitalistic company's abilities to accurately compensate skill.

I like this idea. However, I must ask what safeguards do we have from preventing this class from turning into the eb5 or indeed should we try to prevent h1b from turning into eb5?

H1Bs allocated via a typical auction, would not do much good. Except mean that companies with the most money, could buy them and then under pay their employees.

The best approach I've heard is the stack rank based on "minimum yearly income"[1], the top X number of potential employees are awarded H1Bs.

At the end of the year, the immigration office checks with the IRS. If the employee was fired/quit or was not paid more than the "minimum yearly income" the sponsoring company is forced to pay the difference in fines. i.e. At the end of the year, that H1B has to have cost the company at least the disclosed "minimum yearly income".

[1] "minimum yearly income" is some value less than: base salary + cash bonus + stock awards

> H1Bs allocated via a typical auction, would not do much good. Except mean that companies with the most money, could buy them and then under pay their employees.

Well the idea is that the auction "bid" isn't for a fee to the state, it's for the actual salary. Companies would then compete to pay their immigrant laborers more.

> The italicized portion is what we should find troubling

I do too. But I also realize that, right now, scrapping the H1B program means higher barriers to immigration, rather than replacing it with full work-and-residence rights for qualified foreigners. If the choice is between H1B or open-borders/conditional-green-card (e.g. skills-plus-clean-record based), I'd take option number 2, of course. Right now the national dialog seems to be H1B vs "go back to Mexico! We will build a wall!".

These Carly Fiorina-style arguments that no one has a special right to a job are ignoring a lot of context. In a world with even handed regulation and no borders, that could make sense. But that is not the world we live in. The current situation is not that trade is completely deregulated and labor is tied up in red tape. What is really happening is that there is a complex surface area of varying degrees of regulation and deregulation that in most cases benefits an elite class at the expense of others. Companies in America take advantage of rights to purchase land, subsidies, government contracts, military protection, tax advantages, tariffs, etc, all funded by American tax payers. Why wouldn't it be fair for Americans to have an advantage in the American market place? I actually agree that in an ideal world nations and borders wouldnt exist. But as long as the majority see benefit in their existence and they are being propped up by the powers that be, why would you kick the legs out from any small advantage you have from being a citizen of one?

Said in another way, capital is fungible but labor is not. This means capital can flow readily to the lowest cost suppliers and workers but workers cannot flow readily to higher paying employers.

This leads to a mismatch where, temporarily, employers can capture higher-skilled workers at lower costs.

Another comment, how are anti-disparagement clauses not a violation of first amendment rights?

> Another comment, how are anti-disparagement clauses not a violation of first amendment rights?

This is a common misunderstanding of the first amendment. It's a short amendment, shorter than your comment, so you might as well just read the amendment.

Ah thanks for the advice :)

> Another comment, how are anti-disparagement clauses not a violation of first amendment rights?

First amendment applies to Congress (and after the 14th amendment, the state governments), not to any private citizen or organization. You're free to make private agreements that sign away any rights you have, except (after the 13th amendment) your freedom.

Thanks for the clarification. Makes sense. It feels weird there aren't basic worker protections against such agreements but I think I get it - people are free or not free to enter into such agreements and receive benefits for doing so.

Ceteris paribus allowing anyone in the world to take a job if the employer wants them leads to better outcomes on average. That includes the situation where America is paying for global protection and other special negotiated treaties.

Even if you wanted to specially protect American workers, it would still be more beneficial to allow anyone to take the job then use the excess GDP to make up for the lost wages of Americans. The estimate by Borjas (the most anti-immigrant economist) is that wages would drop at most 5% (IIRC) if open borders happened.

(Not talking about H1B)

Immigrants arriving would benefit the economy (as long as they aren't too poor and take lots of welfare), at least ideally speaking.

> Why wouldn't it be fair for Americans to have an advantage in the American market place?

This is pointless, just like banning trade with X country to allow more jobs to be in America. It looks good on the surface, but really Americans would be losing out on the cheaper prices of X country's goods and services.

The key idea is that trades are mutually beneficial. When an employer hires an immigrant employee, they both gain.

Accepting money in exchange for not disparaging someone is not a violation of free speech rights.

But traditional free speech rights are founded on the principle that truth is an affirmative defense against (for example) libel or slander cases.

Charging someone with libel or slander is fundamentally different than suing for breach of contract. For example, you don't need an anti-disparagement contract with someone to sue for slander, nor is disparagement necessarily slander.

Now, Congress could pass a law saying the anti-disparagement contracts are unenforceable. But would we really want that? Suppose you hire a nanny to watch your kids, and then she quits and writes a tell-all book about your private, embarrassing personal life? You can bet that nannies for high-profile people have anti-disparagement contracts, and are paid well as a consequence. Which seems quite reasonable to me.

It probably won't happen anyway. But I don't think this is a good argument for these non-disparagement contracts.

You might feel different if you were a celebrity. I know one, and it's sad to see the curtains always drawn on the windows of the house, the paparazzi camped out in front, etc. I could see a nanny being hired and then threatening the celebrity with a tell-all book, or just cashing in on it anyway.

The point is that writing such a book is not always "disparagement".

I don't understand your point. The condition of employment at many places, not just celebrities, is that you don't talk about it outside of work. You get well paid for this discretion. Do you think that is a violation of your rights? I don't, the moment you accept the money.

How about NDAs? Should they be unenforceable?

How about Secret Service agents protecting the President. Should they not have to zip their lips about what they see and hear about what goes on in the White House? Is that a violation of their rights to accept such conditions of employment?

Many disputes are settled with the terms being non-disclosed. Should those be unenforceable, too?

I am not suggesting that the terms not be enforceable, which probably won't happen anyway.

Not narrowly defined (as in, it is not the government preventing you from expressing a political opinion). But it does have the whiff of a coerced surrendering of one's rights. Suppose you could sign a completely unbreakable "indentured servitude" contract with another person, whereby by a specific payment now, you are required to work for them exclusively for the next 10 years in whichever capacity they so chose (as long as the job is legal), without further pay and without the option to resign (even by returning the money or declaring bankruptcy). The above would probably not be slavery in the legal/historical sense, but I think no country that disallows slavery should allow such contract either.

All contracts have remedies for breach of contract. Note that jail is not a valid remedy. I've signed non-disparagement contracts, where the remedy was I had to pay back the money. Seems quite reasonable to me, and not a violation of my rights.

Such a contract would (almost surely) be barred by the 13th Amendment in the US.

The 13th Amendment language is much broader than the 1st.

"Shall [not] exist" coupled with "Congress shall have the power to enforce this article" is much broader than "Congress shall make no law..."