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Why Tech Employers Hate Congress' New Immigration Reform Bill

Major corporations say the legislation's restrictive provisions and fine print will handcuff their ability to hire the talent they need to compete globally.

As momma says, be careful what you wish for. For several years, tech employers -- including giants like Microsoft and Oracle -- have been lobbying Congress to raise the cap on H-1B visas, the most common visa used to hire foreign technology workers for jobs in the U.S.

So, you'd think that a compromise immigration reform bill hammered out between a bi-partisan group of Senators and the White House that includes provisions for raising the cap would be a wish-come-true for tech employers.

Think again. "This bill could be well be worse than the status quo we have now, and that says a lot," says Jack Krumholtz, Microsoft managing director of federal government affairs. That's because while the comprehensive and controversial immigration reform bill proposes to raise the H-1B visa cap from the current annual 65,000 to 115,000 (and up to a max of 180,000), the legislation is missing key elements that have been proposed in other bills, while having restrictive provisions and fine print that tech employers say will handcuff their ability to hire the talent they need and to compete globally.

If (and that's a big if) the immigration bill ends gets signed into law with the H-1B provisions that are drafted into it now, "it will make the program unworkable moving forward," says Krumholz.

As the bill is debated this week in Congress, as well as in American HR departments and lunchrooms -- that sentiment is echoed by Robert Hoffman, VP of government affairs at Oracle and co-chair of Compete America, a coalition of technology companies that has been pushing for visa and green card reform for years.

What is bugging tech employers about the bill? For starters, last year the Senate passed a bill that would've raised the H-1B cap to 115,000 -- but also exempted from any cap foreign students who earn advanced degrees from U.S. universities.

Under current laws, 20,000 of these students can be afforded H-1B visas each year, in addition to the general pool of 65,000 H-1Bs. The proposals approved last year by the Senate -- but lacking in the current immigration reform bill -- would've done away with any cap for those students, plus added another allotment of 20,000 visas for foreign students who have advanced degrees in science, technology, engineering, and math (or STEM) from foreign schools.

Microsoft, Oracle, and others say they've had to turn away fresh talent -- like those graduating from U.S. school right now -- because the H-1B visa cap for fiscal 2008 (which starts Oct. 1) was filled for the 65,000 visas on the first day (in April) that the U.S. accepted the visa petitions, and the cap on the 20,000 advanced degree visas was hit about a month later.

In fact, on April 2 and April 3, employers filed to U.S. Citizenship and Immigration Services nearly 120,000 petitions for the 65,000 fiscal 2008 H-1B visa allotment -- which also would be more than enough to fill the 115,000 H-1B slots proposed in the latest version of comprehensive immigration reform.

Also, tech employers aren't pleased about one of the most dramatic shifts proposed by the reform bill. That is a move towards a merit-point system, where individuals can independently apply for green cards or permanent U.S. residency that would be awarded according to the total points they'd earn based on skill set, education, and occupation, and, to a lesser extent, family ties and other considerations.

Last week, when word spread of a compromise between the White House and the group of Senators, the bill appeared to shift U.S. immigration tradition, in which family ties mattered significantly, to a heightened employer-based system focused on the new point system. However, tech employers say the point system takes control away from businesses because employers would no longer sponsor green-card applications for specific individuals they want to hire.

"The point system is built on top of a scarcity of green cards, and then shifts personnel decisions into the hands of bureaucrats and away from employers," says Hoffman.

Although individuals who have advanced degrees in areas like STEM -- or have skills in demanded occupational fields like STEM -- could potentially earn more points than green-card applicants with fewer demanded skills and less education, tech employers say the point system would create a free-for-all, with "low skills and high skills" competing for the same backlog of green cards. "This would leave our ability up to chance" as an employer in planning hiring, says Krumholtz.

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