In a letter made public recently, IBM responded to an inquiry made by Senator Grassley regarding the use of H-1b workers in light of lay-offs by IBM in Senator Grassley’s home state of Iowa. Senator Grassley has been an outspoken critic of the H-1b program and legal immigration in general so his inquiry to IBM was not surprising and, from my point of view perfectly appropriate. The spirit of the H-1b program, if not the law, should not permit H-1b workers to replace laid-off US workers. As part of their response, IBM sought to distance itself from others who heavily use the H-1b program and have a much higher percentage of H-1b workers. IBM puts its % of H-1b workers at 10% or less. In calling for an expansion of the H-1b program, IBM reminded Senator Grassley that the current limitations of the program were leading to the loss of US jobs and greater outsourcing. Given his historical position on the H-1b program, it is doubtful that Senator Grassley was in any way, swayed by the arguments being made by IBM but, it is nice to see US companies defend their H-1b programs.
On the first day of cap filing season, the American Immigration Council released a report detailing the economic impact of H-1b employees. Interesting study containing facts. Maybe someone can pass a copy of this along to Senator Grassley.
Last week, Computerworld published comments from Senator Hatch in which he essentially called out Senator Grassley for being a protectionist and simply ignoring the economic realties of the global marketplace that exists in 2015 by virtue of his plan to prevent an increase in the H-1b cap without including unnecessary and onerous requirements. The proposals of Senator Grassley, though seemingly reasonable on the surface, would essentially destroy the H-1b visa particularly for IT staffing companies who are a large user of the H-1b program. Given Senator Grassley’s history of attacks on the staffing industry, his position should not be a surprise. It is refreshing to see Senator Hatch take a pro business and pro American position however, given Senator Grassley’s position as the chair of the Senate Judiciary Committee, he may have sufficient power to single-handedly prevent business immigration reform from happening. It should be noted that both Senators are Republicans and senior members of the Senate so this type of public exchange is a bit unusual. The back drop of this discussion is the upcoming April 1st H-1b cap lottery filing deadline at which, literally 1000’s of professionals, many of them with U.S. graduate degrees, hired by U.S. employers, will be rejected and told that their services are not wanted in the U.S. Last year, over 85,000 professional workers were rejected and many think this year, there will be even more. The 85,000 rejected workers would’ve been tax-paying productive workers and as countless economic studies have shown, H-1b workers serve to create U.S. jobs, not eliminate them. The continued insistence by politicians such as Senator Grassley, on building walls, rather than building the American economy remains troubling. The foreign outsourcing industry is grateful for his efforts though.
Recently, President Obama made remarks indicating that he wanted to make the H-1b program more efficient as part of the Executive Action that he has promised to deliver in light of Congressional inaction on immigration reform. His remarks immediately drew the ire of Senator Grassley who opined that the H-1b program should have a labor market test attached to it. In typical form, Senator Grassley falsely claimed that US companies lay off US workers in mass and then replace them with cheaper H-1b workers. It should be alarming to all advocates of legal immigration and business immigration reform that Senator Grassley would be the top Senator and carry tremendous weight over any immigration bill should the Republicans take control over the Senate. Hopes of U.S. companies being able to hire and retain the best and the brightest will be destroyed by a strong wind blowing from the corn fields of Iowa should the Senate change hands in the November election.
In a report released earlier this week, the NFAP claimed that the Senate’s proposals to restrict the usage of H-1b’s were not based on sound evidence and represented poor economic policy. This report was issued before Sen. Grassley and others introduced amendments which would create even further restrictions on the H-1b. Whether or not the Senate will allow uncontroverted facts and sound economic policy to get in the way of imposing restrictionist policies is yet to be seen.
Senators on the Judiciary Committee have proposed almost 300 amendments to the Senate CIR bill. Many of these amendments would have disastrous effects on IT staffing cos. Senator Grassley, a long-time opponent of the H-1b program and its use by IT staffing cos. proposed 77 himself. A listing of the amendments can be found here at ILW.com.
In a recent article, NYC Mayor Michael Bloomberg attacked both President Obama and the Republican candidate Romney for their failure to take a leadership role in advocating for an overhaul of the U.S. employment based immigration system which is in deplorable shape and does not provide the economic boost that an improved, more open system would provide. President Obama has paid lip service to entrepreneurial visas while in office but, nothing more, and in fact, under the policies of his administration, there has been a systematic chilling effect on the legal immigration of STEM workers, healthcare workers, entrepreneurs, and other highly sought after professionals. Although, most insiders would argue that the chill on business immigration is a blizzard blowing from the plains of Iowa, the White House, who presumably has more control over Administration policy than a Senator from the other party, has done nothing. The article by Bloomberg provides several great resources setting forth the economic argument for better business immigration policies and is worth a read. So far neither party leader has been willing to lead on this important economic issue and, I for one, am expecting that the cold winds from Iowa will cotinue to prevail.
Earlier this week, Senator Grassley publicly announced that he had released his hold on HR 3012. If you recall, HR 3012 was a bill that had passed the House by a margin of 389-15 and essentially eliminated decades of national origin discrimination by eliminating the per country limits applied to the distribution of immigrant visas (green cards). Unfortunately, when HR 3012 reached the Senate for consideration, Senator Grassley singularly put a hold on it, much as a petulant child will threaten to take his ball and go home if everyone else refuses to play by his rules. As oft is the case in politics, if you have an unpopular provision that stands no chance of success standing on its own merits, you hold a popular piece of legislation hostage until everyone caves. As a strategic ploy, Machiavelli would be proud and Senator Grassley finally got his way and succeeded in attaching additional rules to the H-1b program. (As an aside, I agree with Senator Grassley that the H-1b program does need review and reforms but, unlike this approach, I’d like that review to be done in the open, with a full public hearing and any proposed changes accepted or rejected on their merits.) The amendment that I think will most adversely impact employers is not the annual review of employers that have more than 100 employees and have at least 15% H-1b workers, or the lack of any judicial review, or even the change which allows the DOL to investigate an employer for possible LCA violations without a complaint but, it is the change that allows the DOL the unfettered ability to delay the issuance of an LCA for an indeterminate amount of time. Under the present system, the DOL must certify an LCA within 7 days unless it is “incomplete”. This time limit insures that employers can quickly file an H-1b visa petition. This quick turnaround is particularly important given the small number of H-1b visas available each year under the quota and in circumstances where H-1b workers are transferring from one U.S. employer to another. Under the Grassley amendment, there would be no such 7 day requirement and an investigation and delay in the issuance of an LCA can be initiated by the DOL under the vague rubric of ” clear indicators of fraud, misrepresentation of material fact, or obviously inaccurate”. If fraud hadn’t been so bastardized by the USCIS previously and on the record, then maybe this wouldn’t be so alarming but, fraud has been defined to include such factors as: an address change, having less than 25 employees, less than $10 million in revenues, and a web-site under construction, among others. When a U.S. employer chooses to hire an H-1b worker and expend the $5,000 to $10,000 in attorney and government fees required, it is looking for certainty in timing and adjudication. Over the past 2 years, the certainty associated with adjudication has been removed as the USCIS and the DOS by internal memo and policy have changed the rules where today, you aren’t even certain that a software engineer with a US Master’s degree is going to given an H-1b visa and now, if this amendment takes effect, the timing of the process will give way to uncertainty. Senator Grassley, keep your investigations and annual reviews because as an attorney, I applaud extra regulatory requirements and burdensome reviews that require my clients to retain me and pay me copious amounts of money but, initiate the investigations after the certification of the LCA’s. You can always revoke the LCA’s and impose large fines if you truly find fraud. To do otherwise, will cause employers, often smaller ones, to lose business opportunities and will encourage the outsourcing of projects abroad where the start of the project need not be delayed until the completion of an LCA investigation and the filing of an H-1b visa. The vast majority of U.S. employers want to play by the rules but, in turn, they are seeking certainty and assurances that the government agencies will also play by the rules. With this latest amendment, we will now have neither.
Several sources are reporting that Senators Grassley, Brown, and Schumer have reached a compromise that would eliminate the per country limitations for immigrant visas, create a special E3 visa for persons from Ireland, and require an annual DOL audit of all employers with more than 100 employees and 15% H-1b holders. It would also eliminate the ability to obtain LCA’s in 7 days. But, we caution, don’t get too excited or too upset just yet. As with all politically charged bills, a lot can change between now and the President taking the cap off of the pen and signing it into law. We will keep you updated as developments occur.
In a surprising development, both parties in Congress stopped campaigning, posturing, and fighting long enough to actually enact legislation designed to create US jobs and spur development via the passage of the Jobs Act. At least one entrepreneur supporter/venture capitalist, Steve Case, believes that there is a connection between a legal immigration policy that welcomes entrepreneurs and highly skilled immigrants and new U.S. jobs growth and he has the facts to back up his argument. He also believes that the same arguments which resulted in bi-partisan support for the Jobs Act, may be persuasive enough to pass reforms in the legal immigration system. In his way stands Senator Grassley, the staunchest opponent of legal immigration, who like my 2 yr. old grandson, loves the word No ! However, Senator Grassley does like new jobs so there is hope that he will be able to move past his anti-immigrant leanings and support legal immigration reforms. Also, standing in the way are groups that want the issue of illegal immigration tied to legal immigration to more easily enact a type of amnesty or pathway to citizenship. Whether Mr. Case is able to overcome these major obstacles and achieve any meaningful reform is yet to be seen but, the mere fact that he is talking about it, can only be seen as positive.