Senator Questions Microsoft's H-1B Plans

Sen. Charles Grassley wants to know if Microsoft will be retaining H-1B workers rather than similarly qualified American employees when the maker of Windows implements its 5,000-employee layoff plan.

U.S. Sen. Charles Grassley (R-Iowa), a frequent critic of the tech industry's use of the H-1B visa system, didn't wait long in the new session of Congress to bring up the subject again. As soon as Microsoft announced it was cutting 5,000 jobs, Grassley fired off a letter to Microsoft CEO Steve Ballmer wanting to know if the company will be retaining H-1B workers rather than similarly qualified American employees.

"My point is that during a layoff, companies should not be retaining H-1B or other work visa program employees over qualified American workers," Grassley wrote in the Jan. 22 letter to Microsoft. "Our immigration policy is not intended to harm the American work force. I encourage Microsoft to ensure that Americans are given priority in job retention. Microsoft has a moral obligation to protect these American workers by putting them first during these difficult economic times."

A favorite of American tech companies, the H-1B program is a temporary work visa program allowing American companies and universities to employ foreign guest workers who have the equivalent of a U.S. bachelor's degree in a job category that is considered by the U.S. Citizenship & Immigration Services to be a "specialty occupation." The idea is to help companies hire foreign guest workers on a temporary basis when there is not a sufficient qualified American work force to meet those needs.

However, Grassley wrote, "Certainly, these work visa programs were never intended to allow a company to retain foreign guest workers rather than similarly qualified American workers, when that company cuts jobs during an economic downturn."

Grassley wants Ballmer to tell Congress more about the jobs that are being eliminated, including how many of the eliminated jobs are filled by Americans, how many are held by H-1B workers or other work visa program employees and how many H-1B workers will be retained after the layoffs are completed.

Grassley wrote, "It is imperative that in implementing its layoff plan, Microsoft ensures that American workers have priority in keeping their jobs over foreign workers on visa programs."

In October of 2008, a report issued by the U.S. Bureau of Citizenship and Immigration Services found that the H-1B program has more than a 20 percent violation rate. The fraud identified in the report included jobs not located where employers claimed, H-1B visa holders not being paid the prevailing wage, forged documents, fraudulent degrees and "shell businesses." Nevertheless, the tech industry, led by Microsoft, sought an increase in the H-1B cap.

Even before the report was issued, Grassley and fellow Senators Dick Durbin (D-Ill.) and Bernie Sanders (I-Vt.) were seeking reform of the H-1B visa program. A bill introduced by Grassley and Durbin would require employers to make a good faith effort to hire American workers first. Employers would also have to show that the H-1B worker would not displace an American worker.

The bill would require employers to advertise job openings on a Department of Labor Web site before submitting an H-1B application. In addition, the bill would give the Department of Labor a mandate to conduct random audits of any company that uses the H-1B program and would require annual audits of companies with more than 100 employees that have 15 percent or more of those workers on H-1B visas.

"This is about protecting the American worker," Grassley said in a statement accompanying the bill. "We're closing loopholes that employers have exploited by requiring them to be more transparent about their hiring and we're ensuring more oversight of these visa programs to reduce fraud and abuse. A little sunshine will go a long way to help the American worker."