Politico
By Michelle Quinn
April 16, 2013
Tech may get a lot of what it wants from Congress in terms of H-1B temporary visas for high-skilled workers and other immigration reforms, but at what price?
That’s the question facing the industry as it anxiously waits for the Senate’s Gang of Eight to unveil its comprehensive immigration reform package, which is expected this week.
The devil will be in the immigration package details, say tech industry observers. Here are things to watch for as the plan is unveiled.
Tougher enforcement
Along with an increased number of available H-1B visas as well as measures to improve access to green cards, the tech industry also expects likely changes on the enforcement side of the visa program.
“Restrictions could be more important than the numerical visa increase,” said Stuart Anderson, executive director of the National Foundation for American Policy and a former Senate staffer on the immigration subcommittee. The fear, he said, is that the H-1B “might become a difficult visa category to use.”
He and others point to the H-2A program, which is used for temporary agricultural visa workers. There are no limits on the number of H-2A visas issued, but the program is perceived as bureaucratic and underused.
Much is going to depend on the legislative text, said Lynden Melmed, a lawyer at Berry Appleman & Leiden and a former general counsel at U.S. Citizenship and Immigration Services.
“We’ll be looking at it carefully to make sure it doesn’t interfere with real world hiring decisions or impede the ability of companies to fill critical skill gap shortages,” he said.
Wages, recruiting, displacing
Senate negotiations have zeroed in on rules relating to wages paid to employees, as well as recruiting employees and displacing other workers, according to sources familiar with the process.
Those restrictions may become tighter for H-1B-dependent firms.
When it created the current laws, Congress wanted to protect U.S. workers. Firms defined as “H-1B dependent,” meaning those with at least 15 percent of employees on H-1Bs, have specific hoops to jump through. They have to attest that they have not displaced a U.S. worker either 90 days before or after hiring an H-1B visa holder.
That is also true when it comes to placing an H-1B worker at a client site for both the employer and client. But there’s an exemption if an H-1B worker is paid $60,000 or has a master’s degree.
Likewise, when it comes to recruitment, H-1B dependent firms have to attest that they have recruited in the United States and have offered the job to a U.S. worker who is qualified. Again, the same exemption applies.
Outplacement
When it comes to outplacement — shipping workers to work at a client’s site — there are no statutory restrictions for H-1Bs. But USCIS issued a policy memo in 2010 that restricts the ability of an H-1B employer to put an employee at a client site unless that employer is supervising and controlling the worker.
The rules for outplacement could change in the Senate plan.
Nondependent firms
Many tech companies hire H-1B visa holders but are not H-1B dependent. Currently, there are no restrictions for recruitment, displacement and outplacement. Under the Senate bill, they may face new rules.
The Senate negotiators could prohibit placing an H-1B worker at a third party site if there has been a layoff. For some companies that send a lot of workers to third party work sites, provisions like that could be fatal to their business model.
This change may be a concern for tech firms that are buying and merging with companies all the time and often find an overlap in skill sets as a result of the company’s growth. Companies worry that they may be prohibited from hiring foreign workers if they terminate a worker in those situations.
“It seems unlikely that layoffs that result from mergers and growth are what Congress is worried about,” commented one source familiar with Senate negotiation.
When it comes to recruitment, tech firms are often on U.S. campuses and already recruit and hire U.S. workers. What tech firms are concerned about are new reporting requirements that involve the Department of Labor second-guessing their hiring decisions.
Madeleine Sumption, a senior policy analyst at Migration Policy Institute, said she doesn’t expect the Senate bill to contain recruitment changes that are too difficult for employers.
“Employers will do what is required even if it is difficult,” she said.
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