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The Racialization and Exploitation of Foreign Workers by the Law City University of New York (CUNY) CUNY Academic Works All Dissertations, Theses, and Capstone Projects Dissertations, Theses, and Capstone Projects 9-2017 The Racialization and Exploitation of Foreign Workers by the Law Seiko Ishikawa The Graduate Center, City University of New York How does access to this work benefit ou?y Let us know! More information about this work at: https://academicworks.cuny.edu/gc_etds/2318 Discover additional works at: https://academicworks.cuny.edu This work is made publicly available by the City University of New York (CUNY). Contact: [email protected] THE RACIALIZATION AND EXPLOITATION OF FOREIGN WORKERS BY THE LAW by SEIKO ISHIKAWA A master’s thesis submitted to the Graduate Faculty in Liberal Studies in partial fulfillment of the requirements for the degree of Master of Arts, The City University of New York 2017 © 2017 Seiko Ishikawa All Rights Reserved ii This manuscript has been read and accepted for the Graduate Faculty in Liberal Studies in satisfaction of the thesis requirements for the degree of Master of Arts. Date Monica W. Varsanyi Thesis Advisor Date Elizabeth Macaulay-Lewis Executive Officer THE CITY UNIVERSITY OF NEW YORK iii Abstract THE RACIALIZATION AND EXPLOITATION OF FOREIGN WORKERS BY THE LAW by Seiko Ishikawa Advisor: Professor Monica W. Varsanyi Intense demand for cheap labor in the United States has resulted in a widespread effect of employing high skilled immigrants in STEM fields. Examining how companies use high-skilled visa categories to create a flexible cheaper immigrant workforce, this paper demonstrates that skilled immigrants from Asia are being exploited through neutral skills-based criteria that are de facto racially biased. The purpose of this paper is to raise awareness of how, from the perspective of law and society, skills-based immigration works primarily to benefit the technological industry rather than skilled immigrants. iv Table of Contents Introduction ....................................................................................................................1 Chapter One: Literature Review 1.1 Introduction ................................................................................................. 8 1.2 The Gap between Law on the Books and Law in Action ............................8 1.3 The Current National Orgins Formula .......................................................12 1.4 Demographic Diversity in the High Tech Fields .......................................15 1.5 Skilled Immigrants and De Facto Discrimination .....................................17 1.6 Asian Immigration in De Just Immigration Law .......................................22 1.7 Conclusion .................................................................................................25 Chapter Two: Skills-Based Immigration and U.S. Policy 2.1 Introduction ...............................................................................................27 2.2 Immigration and Nationality Act of 1965 and 1990 .................................27 2.3 Per Country Limit .....................................................................................29 2.4 Non-immigrant Status and the H-1B Visa ................................................30 2.5 Immigration Status Discrimination ...........................................................34 2.6 Conclusion ................................................................................................35 Chapter Three: Skills-Based Immigrants in the U.S. 3.1 Introduction ...............................................................................................37 3.2 A General Distribution of H-1B Visa Petitions ........................................37 3.3 Country of Birth ........................................................................................39 3.4 Age of H-1B Holders ................................................................................39 3.5 Technology Occupations ..........................................................................41 3.6 Education and Ethnicity ............................................................................43 3.7 Occupation of H-1B Holders ....................................................................45 3.8 H-1B by Annual Compensation ................................................................47 3.9 H-1B by Industry and Sponsors ................................................................49 3.10 Skilled Indian Workers ...........................................................................51 3.11 Conclusion ..............................................................................................54 Chapter Four: Contesting Availabilities 4.1 Introduction ...............................................................................................56 4.2 Skill Shortage vs. Aggregate Shortages ....................................................57 4.3 Politics of the H-1B ..................................................................................62 4.4 Intention of Increase .................................................................................63 4.5 Bipartisan and Non-Immigration Visa policy Reform ..............................65 4.6 Conclusion ................................................................................................66 Chapter Five: De Jure and De Facto 5.1 Introduction ...............................................................................................68 5.2 Rules of Prevailing Wage Ignored or Broken ...........................................68 5.3 Disclose Cheap Exploitable Labor ............................................................74 5.4 Indentured Servants and Skilled Indian Workers .....................................78 5.5 Substitution for Skilled Labor Force: the B-1 Visa ..................................80 5.6 Narrative of the OPT Extension for STEM students ................................82 5.7 Benefit and Drawbacks of the H-1B .........................................................89 5.8 Conclusion ................................................................................................91 v Chapter Six: Conclusion ..............................................................................................93 References ....................................................................................................................97 vi Introduction As immigration to the United States has tripled between the 1990s1 and 2010s,2 bringing in diverse peoples from all around the developing world,3 immigration scholarship has carefully examined and researched elements of discrimination4 contained in the development of American immigration law and policy. In this paper, I focus on the temporary employment5 of skilled foreign workers in the American STEM (science, 1 The 1990s was a significant period for immigration policies. During that era Congress began a serious discussion on immigration reform. The 1986 Immigration Reform and Control Act (IRCA), Pub.L.99-603, was a modified version of the Immigration and Nationality Act of 1965. It increased the totality of immigrants to 700,000 immigrants per year for the fiscal years 1992-94, and 675,000 per year after that. This act preserved family-based immigration visas, while more than doubling employment-related immigration, created five distinct employment-based visas categorized by occupation, and instituted the Diversity Visa Program, which created a lottery to admit immigrants from countries where their citizenry was underrepresented in the U.S. There were also changes in non-immigration visas, such as the H-1B visa, one of the temporary employment-based visas for skilled workers, which is the main subject of this paper. Historical Overview of Immigration Policy. Center for Immigration Studies. Retrieved from http://cis.org/ImmigrationHistoryOverview. 2 According to U.S. Homeland Security, an estimated 13.2 million lawful permanent residents (LPRs), or green card holders, were living in the United States on January 1, 2014. Sixty-four percent of the LPR population in 2014 obtained permanent residence in 2000 or later. Thirty-two percent gained LPR status between 1990 and 2004. Lee, James & Baker, Bryan. (2014, January) Estimates of the Lawful Permanent Resident Population in the United States. U.S. Homeland Security. Moreover, the Department of State (DOS) published the 2015 annual report of immigrant visa applicants, revealing an overall decrease from 9,011,295 in 2015 to 8,626,625 in 2016. This total decreases both family-based and employment-based green cards. However, only reflect petitions do not include the number of applications held with the USCIS Offices. Immigrant visa issuances during fiscal year 2017 will be limited no more 226,000 in the family- sponsored preferences and 140,000 in the employment-based preferences. Annual Report of Immigration Visa Applicants in the Family-sponsored and Employment-based preferences Registered at the National Visa Center as of November 1, 2016. 3 Monger, Randall. & Yankay, James. (2014, May). U.S. Lawful Permanent Residents: 2013. Homeland Security. Office of Immigration Statistics Annual Flow Report, pp.9. 4 After the Immigration and Naturalization Act of 1965 abolished a quota system based on national origin, immigrants were accused of bringing crime, stealing jobs from native-born Americans, and being tax parasites. Even though the Equal Protection Clause generally requires strict scrutiny of racial classification within the law, racism, along
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