Storm Clouds Rise Over H-1B

By Lisa Vaas  |  Posted 2002-06-28

Storm Clouds Rise Over H-1B

Two years ago, IT vendors and other proponents of the controversial H-1B visa program were generating about as much sound and fury as a raging storm on the high seas. Lobbying groups such as TechNet insisted the chronic IT skills shortage would sink the industry unless the annual numbers of H-1B visas—allowing foreign workers to take positions temporarily in the United States—were substantially increased. They won, and the number of H-1B visas available to employers annually was increased to 195,000, triple the number available before 1998.

Fast forward to 2002, and you dont hear a peep from H-1B backers. Even though the number of H-1B visas available annually is scheduled to revert to 65,000 in 2004, TechNet is quiet. The big tech companies have little or no comment on the need to sustain or even increase the cap. One of the sponsors of the 2000 bill increasing the H-1B visa cap, Rep. Zoe Lofgren, D-Calif., is unavailable to talk now, according to her assistant. And the brain trust at another industry lobbying group, the Information Technology Association of America, "hasnt spent 10 seconds" thinking about its strategy—"yet," according to its president, Harris Miller.

Meanwhile, as the lingering economic slowdown has hit the IT industry particularly hard, throwing many U.S. native IT professionals out of work, pressure is rapidly mounting to torpedo the H-1B visa program, or at least cut its engines. Labor groups representing IT workers are mobilizing members; immigration-focused politicians are introducing bills to downscale the H-1B program; and laid-off IT workers are threatening employers with legal action, claiming theyve been sacrificed in favor of lower-paid H-1B workers.

So, is the controversial H-1B visa program about to sail into the sunset, another victim of the sour economy? Dont count on it, experts say. Although IT industry lobbyists and other backers of the H-1B program are quiet on the topic now, this may be the calm before the storm. Support for sustaining or even increasing the current number of H-1B visas is almost certain to rise before the 2004 deadline.

Backers of H-1B increases "think the best thing they can do is to shut up about this and look for an opportunity next year to sneak it through," said Rep. Tom Tancredo, R-Colo., in Washington, author of H.R. 3222, the High-Tech Work Fairness and Economic Stimulus Act of 2001, which would return the H-1B quota to 65,000 per year. The bill, under consideration in the House, would also provide for further reductions in the cap if unemployment increases beyond a certain level. (For more on the bill and Tancredos position, see "Anti-H-1B Congressman Plans Strategy").

When now-latent support for the H-1B program resurfaces, plenty of opposition—from Tancredo and others—will be waiting. Much of that opposition is from IT workers, many of whom believe they were discriminated against in favor of H-1B visa holders during the past years miserable climate of layoffs.

"Our membership is angry about the H-1B visa issue," said Marcus Courtney, staff organizer and local president of the Washington Alliance of Technology Workers, or WashTech, a Seattle-based organization of high-tech workers and the local affiliate of the Communications Workers of America. "Theyre starting to have serious doubts about the validity of the program and the premise under which it operates."

As this story was going to press, delegates from WashTech were planning to present a resolution to the annual convention of the CWA in Las Vegas last week. The resolution will call on the CWA to support legislation that strengthens reporting requirements of companies that use H-1B workers and reduces the H-1B visa cap to 65,000. The resolution also challenges the employ of H-1B visa holders by telecommunications companies attempting to break strikes (as allegedly happened at AT&T Corp. this spring when the company brought in hundreds of Indian workers for training as network technicians as part of a strike contingency plan).

Discrimination Lawsuits

Discrimination Lawsuits

The same anger is seeping toward courts in the form of threatened lawsuits against employers that have allegedly discriminated against native workers in favor of lower-paid H-1Bs. If some laid-off tech workers get their way, Sun Microsystems Inc. will soon be the subject of a class action suit alleging discriminatory patterns in November 2001 layoffs of about 9 percent of Suns work force—about 3,900 jobs.

Guy Santiglia is one of a handful of ex-Sun employees who have provided the Department of Justice and the Department of Labor with information about Sun regarding what he believes are violations of the H-1B visa-related laws and alleged discrimination against U.S. citizens. Some ex-Sun employees who prefer to remain anonymous are also running a Web site that asks laid-off Sun workers to file charges against the company ( Laid off from a one-year position as assistant IT administrator in November, Santiglia said that the DOJ is investigating Sun for possible instances of discrimination in the November layoffs. A spokeswoman and an attorney for the DOL and a spokeswoman for the DOJ said they could not comment on ongoing investigations.

Santiglias claims are fueled by the perception that he lost his job while, he said, some H-1B visa holders—brought into this country ostensibly because there were no domestic workers to perform their jobs—retained theirs. But, according to Santiglia, the DOL told him that his job isnt protected in such a situation unless Sun has a work force of more than 15 percent H-1B visa holders.

Does Sun employ more than 15 percent H-1B visa holders? To find out, Santiglia walked into Suns Santa Clara, Calif., headquarters and demanded to see the companys records of the LCAs, or labor condition applications, companies must file when requesting H-1B visas. According to Santiglia, Sun requested approval for thousands of H-1B workers last year, well in excess of the number of workers the company laid off this year. The figure he came up with doesnt represent 15 percent of Suns work force, but Santiglia said the company is still being investigated on grounds of discrimination.

Sun spokeswoman Penny Bruce declined to disclose how many H-1B petitions Sun filed between October last year and March this year but said that it is a "fraction—close to 20 percent—of the numbers filed in the prior year." Bruce also denied that Santiglia was replaced with an H-1B worker.

Not the Desperation

Not the Desperation

For their part, technology industry lobbying groups said theyve gone quiet on H-1B because the depressed economy has reduced the need for hiring all IT workers—natives and H-1B holders alike.

"Its a lot less of a hot topic than it used to be," said Rick White, CEO of TechNet, in Palo Alto, Calif., which represents 230 tech-related companies. "Theres not the desperation. The industrys still supportive of [H-1B], but it was a totally different world a couple years ago. Now, there hasnt been any pressure to focus on it."

Indeed, many tech companies have rendered the H-1B issue moot by implementing hiring freezes and cutting back severely on filing H-1B visa applications. (Click Here for chart on H-1B usage.)

Hewlett-Packard Co., its hands full with both its merger with Compaq Computer Corp. and the stubbornly slow economy, is one such company. It filed 144 H-1B visa request documents in 2000, 105 last year and none to date this year. "Nobody in the industry is commenting on H-1B," said Larry Estrada, HP government affairs manager, in Palo Alto. "Its tied to the economy. If you have a hiring freeze, youre not going to be as concerned with seeing how you can add on expertise."

Still, WashTechs Courtney doesnt trust the relative quiet. "Even now, with the recession going on and hundreds of thousands of tech employees out of work, the [pro-H-1B-increase] lobby is still very effective in making its case to members of Congress in that this program is still required because the American educational system has failed to fill the types of jobs required," said Courtney.

Courtney said he fears politicians will be open to that argument because many havent given up on the dot-com-era fantasy that technology would be a bottomless source of high-paying jobs. "Theres still unrealistic expectations by the leadership—by politicians—regarding what the IT industry will deliver in terms of job creation and growth," he said. "Our political leaders drank so much of the New Economy Kool-Aid, theyre not willing to say, Man, maybe we need to try a different flavor here."

Besides, to WashTech organizers, H-1B is just one component of a cluster of issues that are undermining IT pay and job security, including escalating offshore outsourcing and increasing reliance by employers on temporary workers.

"We [fear] that IT is like manufacturing was 20 years ago: on the brink of leaving the borders," said Roberta Wilson, WashTech union secretary, in Bainbridge Island, Wash. "There will always be IT jobs, but a big chunk of them could leave. Whether thats a brilliant idea or the worst possible idea is hard to say, but for sure, workers are not part of this dialogue, and their interests are not on the top of this list."

IT Careers Managing Editor Lisa Vaas can be reached at

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