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The Senate Judiciary Committee voted 13 – 5 Tuesday to send the wide-ranging immigration reform bill to the Senate floor. Three Republicans joined 10 Democrats to advance the measure. Sen. Orrin Hatch, R-Utah, a longtime ally of the technology industry who had pressed amendments to loosen proposed regulations on companies that hire H-1B workers, added his “aye” vote, though he has said he won’t necessarily support the bill on the final vote. U.S. VisaTech companies have lobbied hard against provisions in the original 844-page bill requiring companies to first extend offers to Americans for STEM positions and to give the Labor Department two years to audit and challenge the hiring of H-1B candidates.

Looser Hiring Requirements

Under a compromise the committee worked out, the strictest hiring requirements and Labor Department review would apply only to companies with more than 15 percent of their full-time headcount made up of skilled workers with college and advanced degrees. That has some overseas outsourcing companies worried, but U.S. tech companies that employ a large percentage of U.S. citizens likely would avoid further scrutiny, according to USA Today. “We feel if your company is hiring Americans 85 percent of the time for skilled positions, we are going to treat you differently," the newspaper quoted Sen. Richard Durbin, D-Ill., as saying. Other parts of the compromise:
  • Hatch won his battle to raise the visa cap more quickly than originally proposed -- to 180,000 unless the unemployment rate in technology fields tops 4.5 percent.
  • Rather than showing that no U.S. STEM worker has been laid off within three months of hiring a visa holder, companies would simply have to state in writing that they do not have the "intent" to replace American workers.
  • Base pay for visa holders was raised by 18 to 22 percent.
  • Visa holders will be able to more easily change jobs once an employer has applied for a green card for them. Critics of the program have said that guest workers are at their employers’ mercy lest they be sent to the back of the green card line.
All Things Digital called the Tuesday vote a big win for Mark Zuckerberg’s political action group FWD.us, just one of the organizations backed by big-name tech employers pushing to allow more H-1B visas. Another, the Silicon Valley Leadership Group, whose 375 members include the likes of Intel, Google and Cisco, also applauded the vote. "The accepted amendments are important as they move the bi-partisan bill forward -- underscoring the need to protect American workers, increase funding for STEM education for American citizens, and allow American employers to secure the talent they need both from the U.S. and regions around the globe," CEO Carl Guardino said in an email Wednesday.

Encouraging Workarounds?

Tech worker advocates, however, weren’t buying it. “[This] would certainly seem to accelerate the replacement of the domestic work force by guest workers,” says Hal Salzman, professor of public policy and senior faculty fellow at Rutgers University’s John J. Heldrich Center for Workforce Development. Salzman was among the authors of a recent Economic Policy Institute report challenging the oft-cited claim that the U.S. doesn’t produce enough STEM workers. He maintains that there’s no evidence that companies have a hard time finding domestic IT workers, and there should be some minimum requirement that companies do a reasonable search for domestic workers. “The original proposal was designed to give [U.S. citizens] at least a shot at it, but that 15 percent number is a loophole big enough to drive a Mack truck through,” he said Wednesday. “That will discourage the offshoring firms, but U.S. firms will find workarounds to that.” Salzman said H-1B visas provide companies the benefit of churn, providing turnover every few years that allows them to repeatedly fill positions at entry-level wages. If there were such a shortage of IT workers, he argues, demand would force salaries up. Instead wages have been stagnant.

A Few Things to Like

While it opposes raising the visa cap, the engineering organization IEEE-USA found the compromise a mixed bag. In a statement, President Marc Apter cited gains against outsourcing and gender bias – the bill requires the government to pay attention to the gender mix in visa applications – but called the compromise “one step back and two steps forward.” “High-tech employers are so obsessed with the H-1B program that they seem to have forgotten this bill provides unlimited green cards for STEM grads, and completely deregulates the process so that every new hire with an advanced U.S. degree can get a green card as soon they are hired,” Apter said. “The green card provisions also solve every legitimate problem employers complain about that they imagine H-1Bs can solve.” He noted the bill also allows green card candidates to switch jobs. “Instead of providing an incentive to delay the green card process as long as possible for maximum leverage over the worker, this important victory continues the progress we’ve been making toward a system for skilled immigration based on green cards, not guest worker visas. This provision, which we proposed to the negotiators, removes the largest source of leverage that an employer has over an H-1B employee.”

A Green Card Problem?

The green card provisions could be a big problem, though, according to Kim Berry, president of the Programmers Guild. The proposal to “staple a green card” to each advanced STEM degree would provide a lower-wage labor pool of graduates that employers such as Google and Microsoft look for to compete with U.S. STEM grads who did not go to top-flight schools, he says. “If there is no prevailing wage requirement and they get a job for $20,000 a year, they get a green card and get to stay in the United States,” he said. “Americans enroll in STEM because they want to get a good job with a good company. If we turn our universities into green card mills, the primary objective will be to immigrate to the USA. Universities can charge foreign students more, and we already see the [University of California] wanting to increase the number of foreign students. We see the UC system turning away many qualified American high school students while increasing the number of foreigners – and this will only make it worse.” The Congressional Budget Office still must determine the cost of enacting the legislation, and floor debate expected to begin around June 10. Image: BigStock