Why Tech Employers Hate Congress' New Immigration Reform Bill

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

It seems likely the government would put a premium on individuals with degrees or skills in high-demand areas of science, technology, engineering, and medicine. But tech employers contend the point system would pit low skills and high skills against each other for the same scarce green cards. It would leave an employer's ability to hire someone "up to chance," says Krumholtz.

The other big complaint is over more restrictions. Under current law, only companies that have more than 15% of their workforce on H-1B visas--called "H-1B dependent" companies--are held to certain tougher rules. This bill would apply them to all H-1B employers.

Those rules include H-1B employers attesting that no U.S. worker was displaced from a particular job six months before or after an H-1B worker was hired for that role. Such restrictions create big hurdles for "legitimate" employers in terms of flexibility of their workforce and global competitiveness, Krumholtz says. Oracle's Hoffman says the provisions "are a huge requirement that might violate international trade laws." They hinder companies from responding to changes in the economy--for instance, if an H-1B worker was hired for a specific job a few months before an economic downturn, Hoffman wonders, would that prevent a company from laying off any American workers?

The biggest complaint about H-1B visas is companies that bring people here just to hire them back out to U.S. clients at below-market wages. "If there's abuse or fraud, let's go over that, let's target those actions to employers abusing the system or engaging in fraud," says Krumholtz. "Why apply those restrictions to legitimate employers?" Hoffman says those enforcement changes could make H-1B hiring too costly, and that would drive U.S. companies to do exactly what Americans don't want: to send work offshore rather than bring people here to do the work.

Proposed Reforms
> More H-1B Visas Cap goes from 65,000 to 115,000
> Tough On Employers Prove H-1Bs don't replace U.S. workers
> Education Ties Visas require degrees be related to jobs people do
> Points For Skills Green cards would be given for skills and education; maybe less employer clout
Other proposed restrictions include requiring that an H-1B visa applicant's educational degree matches the job. So an individual applying for a U.S-based job as a software engineer would need a software engineering degree. "What if that person has a Ph.D. in mathematics?" asks Krumholtz.

A few other countries, including Australia, Canada, and most recently the United Kingdom, have point systems. But Australia has a dual-track system that includes employer-sponsored immigration, something not in the U.S. plan. "The biggest winners in this are Australia, Canada, France," and other countries that are making immigration easier for the highly skilled and educated, he says.

Hoffman says multinational companies such as Oracle will be less affected, since a talented developer who can't get into the United States could take a job in one of Oracle's other global offices. He says it'll be harder, though, for promising U.S. startups to hire foreign tech talent.

So is the tech companies' displeasure a sign of a big win for H-1B critics? "As 'comprehensive immigration reform,' it's a total joke," says John Miano, founder of U.S. tech professional advocacy group Programmers Guild, via e-mail. "The bill doesn't please anyone--does not solve the problem it's addressing."

Miano predicts H-1B changes won't happen as part of this package, and any changes to the H-1B cap or green card rules could come in targeted bills. That might not be a bad thing. The issue of thousands of highly skilled, would-be immigrants is a far different one from amnesty for 12 million undocumented immigrants working here. Perhaps a separate debate would be better.