Tech companies, engineers clash over cap on high-skilled worker visas

Senators negotiating a comprehensive immigration bill will get reminded on Monday of the need for temporary worker visas, as the cap is expected to be hit a few days after the government starts accepting applications.

U.S. Citizenship and Immigration Services, the agency that oversees immigration, starts accepting applications for 65,000 H-1B visa slots on Apr. 1. But this year the agency anticipates that it may hit the visa cap within the first week that it starts accepting applications and could revert to a lottery system for first time since 2008.

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Tech companies say the expected influx of petitions illustrates the desperate need for Congress to increase the H-1B visa cap so they can hire top foreign talent.

“The current numbers are outdated and don't take into account all of the innovation and technology that's occurred over the last twenty years,” said Jessica Herrera-Flanigan, a partner at Monument Policy Group, which lobbies on behalf of Microsoft and LinkedIn in Washington. “Basically we have an arbitrary number that’s not aligned in any fashion to our country’s need for labor requirements.”

Tech companies, such as Microsoft and Intel, have been pressing Congress for years to increase the number of H-1B visa available for highly-skilled and educated foreign workers, as well as free up more green cards for them. The temporary worker visas have been used by tech companies to hire foreign engineers, scientists and computer programmers.

But the H-1B program also has its share of opponents.

The IEEE-USA has lobbied fiercely against raising the cap for H-1B visas, arguing that the program has been abused by IT services companies focused on off-shoring jobs abroad or businesses that seek to bypass hiring American workers. IEEE-USA, which represents engineers and tech professionals in Washington, has argued that a large percentage of H-1B visas are allocated to these outsourcing companies.

Ahead of the H-1B filing deadline, the group on Friday said recent figures from the Department of Labor suggest that the top 10 companies applying for H-1B visas in the first three months of this fiscal year are all off-shoring companies.

“Starting next week, proponents of an H-1B visa increase will bemoan the fact that the H-1B cap is already used up,” said Marc Apter, president of IEEE-USA, in a statement. “But it was outsourcing companies—businesses who use the visas to take American jobs—who used nearly two-thirds of them.”

Instead, the group has argued that tech companies should focus solely on increasing the number of green cards available to talented foreign workers, which offers them a path to citizenship. A green card authorizes a person to live and work in the U.S. on a permanent basis.

“The H-1B program shouldn’t be used to facilitate the transfer of high-paying jobs to other countries,” Apter said in the statement. “If Congress wants a full U.S. economic recovery, it shouldn’t even be thinking about expanding it.”

Advocates for more H-1B visas take issue with the Department of Labor figures cited by IEEE, saying they only represent the number of visas companies are approved to apply for and do not represent the number of H-1Bs that companies actually apply for and receive. They contend that several major tech companies rely on the H-1B program to hire foreign talent right away while they wait through the lengthy green card approval process.

Tech groups also argue that if green cards were processed faster, companies may not need as many H-1B visas.

“If we had enough green cards, we wouldn’t feel like we were squeezed on both ends,” said Scott Corley, executive director of Compete America, a coalition of tech companies, trade groups and universities that advocate for high-skilled immigration reform.

“We feel our opponents are looking at how much enforcement we should have in the [H-1B] system even though it hurts good companies,” he added.

Congress has generally supported reforming the existing immigration rules for these foreign high-skilled workers, but the H-1B program has come under scrutiny from lawmakers. The visa program emerged as a thorn the last time Congress tried to pass comprehensive immigration reform in 2007 and the issue has become a sticking point once more during the current negotiations between the bipartisan Gang of Eight senators working on a bill that would overhaul the nation’s immigration laws.

Sen. Charles Grassley (R-Iowa), a vocal critic of H-1B visas, introduced a bill this month that would add more oversight and enforcement mechanisms to the temporary worker visa program. The bill is similar to legislation that he introduced in previous years with Sen. Dick Durbin (D-Ill.), a member of the Gang of Eight.

During the group’s negotiations, Durbin is said to be pushing for the enforcement mechanisms in Grassley’s measure to be added to the section of the larger immigration reform bill that applies to highly-skilled foreign workers. Durbin and Sen. Bob Menendez (D-N.J.) are leading the group’s work on that section of the bill.

Sources familiar with the Senate negotiations expect that the group will increase the number of green cards and H-1B visas available to high-skilled foreign workers. However, the increase will likely be far from the number proposed in the Immigration Innovation Act introduced by a bipartisan group of senators in February. The bill proposed to increase the H-1B cap to 115,000 from the current cap of 65,000.

There will likely be additional enforcement mechanisms applied to the H-1B program, although those measures are still being discussed and in flux.

Corley said the tech industry is willing to consider some enforcement measures to the H-1B program, but not at the expense of forcing American tech companies to move jobs offshore to keep top foreign talent. 

"We have to optimize opportunities for good players [in the system]," he said.

Durbin and the other senators in the group, along with staff, have been willing to sit down and discuss possible reasonable enforcement measures, Corley said. He added that the Senate bill is “shaping up to be a good bill.”

“Even they have been willing to sit down and say, we aren’t after companies like Microsoft and Google; we have a problem with specific types of behavior,” Corley said. “They’re working to be specific with us.”

This post was updated at 1:45 p.m. to correct the description of the IEEE and clarify contention with the Department of Labor figures on H-1B applicants.