Separate Paths for H-1B Policy, Verification

Now that a major immigration bill has collapsed in the Senate, business interests are waiting to see whether employer verification and H-1B visa policy will move separately through the legislative process.

So far, Capitol Hill leaders have not committed to returning to immigration in any form following the Senate’s failure in late June to end debate on a bipartisan bill that stoked political passions.

The legislation would have strengthened border security and work-site enforcement, sharply increased fines for hiring undocumented workers, created a guest worker program and established a path toward legalization for many of the estimated 12 million illegal immigrants.

In the end, neither verification nor H-1B issues were formally debated. But an amendment that would have rewritten the verification part of the Senate legislation was called a “deal breaker.”

The Senate bill would have required all 7 million employers to sign up for the government-run electronic employment verification system that is currently being used voluntarily by about 16,000 companies. HR groups call the mechanism inaccurate and inefficient, warning that it could cause hiring gridlock.

The amendment would have limited verification to new hires, rather than extend it to existing workers, as the underlying bill did.

The fact that easing the language could have caused a firestorm demonstrates the support for enhancing work-site enforcement. There’s a chance verification may resurface in other bills.

But that scenario is not likely, according to sources on and off Capitol Hill.

“The general consensus is that employer verification and modifying the employer sanctions program has to occur within the context of comprehensive immigration reform,” says Mike Aitken, director of government relations for the Society for Human Resource Management.

It may also be difficult to address immigration of highly skilled workers outside of a comprehensive measure.

“It’s been held as a bargaining chip for getting the harder parts of immigration reform done,” says Tod Loofbourrow, CEO of Authoria, a talent management software company. “It needs to move whether it’s separate or together [with other reforms].”

Advocates like Loofbourrow assert that U.S. high-tech companies desperately need to hire the foreign students who come to this country to earn science, technology, engineering and math degrees.

They point to a recent decision by Microsoft to open a software-development center in Canada so it can recruit talent that can’t stay in the U.S. under existing immigration rules.

The Senate bill would have raised the annual H-1B ceiling to 180,000 visas from the current 65,000 limit. Those slots were filled this year on the first day that the government accepted visa applications.

“If we don’t do anything, you’re going to see efforts to move operations overseas,” says Robert Hoffman, vice president of government and public affairs for Oracle. “It’s not an issue of whether we can hire [highly skilled foreign workers], but where we can hire them.”

Hoffman says that message resonates on Capitol Hill. He heads an interest group called Compete America that is lobbying lawmakers for H-1B reform.

“They understand the urgency for action,” he says. “It’s really a question of what’s doable this year.”

If attention returns to the H-1B issue, its supporters likely will have to battle congressional skeptics who will insist on proof that there are no U.S. workers available for the jobs that companies are seeking to fill with the visas.

On the verification side, challenges are emerging outside of Washington. Arizona, Colorado, Oklahoma and Georgia have approved immigration laws mandating that their employers use the government’s electronic system.

Such moves worry business. “We believe that immigration law is a federal issue and belongs at that level,” Aitken says.