Feds Take Hard Line on Immigrant Hiring, Visa Shortage for High-Skilled Workers

Just as Capitol Hill is getting back to work after its two-week spring recess, the cap on visas for highly skilled immigrants is likely to be exceeded for the second consecutive year.

Companies that contend they desperately need to hire foreign talent, especially in the technology sector, don’t expect Congress to raise immigration limits.

Applications for H-1B visas are due on April 1 and probably will breach the 65,000 ceiling that day, resulting in a random lottery to determine allocation.

While the struggle at the high end of the immigration spectrum continues, a revived federal regulation may put many low-wage workers at risk.

On March 26, the Department of Homeland Security reissued a rule that would force companies to either resolve within 90 days discrepancies between a worker’s name and Social Security number or fire the employee. It would effectively make so-called “no-match” letters evidence of the illegal hiring.

The action is part of an ongoing federal immigration enforcement crackdown following the collapse of comprehensive immigration reform last year in Congress.

DHS originally announced the regulation in August. A federal judge in San Francisco issued a temporary injunction in October after business, labor and immigration groups filed suit. The plaintiffs argued that that the rule would result in lawful employees being terminated and in discrimination against immigrants.

DHS will gather public comments for the next month on the new regulation, which has only been tweaked from the original. It will then issue a final rule and submit it to U.S. Judge Charles Breyer in San Francisco. Breyer will decide whether to lift the injunction. DHS also has appealed Breyer’s order separately.

Opponents of the no-match rule assert that flawed Social Security databases, which show problems with the information for millions of people, will crimp the U.S. hiring system. DHS Secretary Michael Chertoff calls the rule “an important tool” in halting illegal employment.

“We didn’t expect them to issue the exact same rule again,” said Laura Reiff, co-chair of the Essential Worker Immigration Coalition, a group of business associations. “We’re on pins and needles a little bit about what could happen.”

For companies seeking to hire foreign nationals graduating from U.S. universities, the situation is clearer. There will again be too few H-1B visas to meet demand.

This means that U.S. companies will lose top talent to international competitors, according to business interest groups. They will be forced to relocate operations to countries with more welcoming immigration rules. For instance, Microsoft opened a research facility in Vancouver, British Columba, last summer.

“It’s a national problem that deserves a national response by our national leaders,” said Robert Hoffman, vice president of government and public affairs for Oracle and co-chair of Compete America.

Microsoft chairman Bill Gates made a similar pitch at a March 12 hearing of the House Science and Technology Committee. His appearance catalyzed the introduction of a couple bills to raise the H-1B caps.

But Congress may not act because of the volatile atmosphere surrounding immigration. Last year, a broad Senate bill that would have strengthened border and work-site enforcement while creating a path toward legal residency for undocumented workers died acrimoniously.

Since then, it has been difficult to isolate immigration issues—such as raising visa levels—and move them in separate bills. “The message that’s been given to us is it’s all or nothing,” Hoffman said.

The other problem is that combating illegal immigration has bipartisan political appeal.

“The environment seems to be focused on enforcement and not on competitiveness and getting the workers we need,” said Rebecca Peters, director and legislative affairs counsel for the American Council for International Personnel.

Even if H-1B legislation gets traction, it will have to overcome skeptics of the program who say that it lowers wages in the tech sector and denies jobs to U.S. workers.

Sens. Richard Durbin, D-Illinois, and Charles Grassley, R-Iowa, have introduced a bill that would require all companies applying for H-1B visas to certify that they have tried to hire U.S. workers first, mandate that employers pay a prevailing wage and prohibit them from outsourcing H-1B employees to other companies.

Another critic, Kim Berry, president of the Programmers Guild, proposed that the H-1B allocations be based not on a lottery but on how much an employer is willing to pay. Those offering the highest salary would secure the foreign talent.

But Victor Johnson, senior advisor for public policy for the Association of International Educators, said that U.S. workers losing jobs to H-1B holders is not a problem.

“It has to be looked at as a competitiveness issue, not a labor issue,” Johnson said. “These are scarce skills.”