A Victorious GOP Would Shape the Senate's H-1B Debate

Five points to consider if Republicans wind up in complete charge of Congress after the mid-terms

U.S. Congress Washington DC

If the Republicans win the Senate on Tuesday, the power shift will affect the nation's on-going H-1B visa debate.

The program's strongest critic, Sen. Charles Grassley (R-Iowa), would become the chairman of the Senate Judiciary Committee, putting him in a powerful position to shape legislation. But Grassley's power isn't absolute and he faces powerful foes. In Congress, divisions among Republicans over the H-1B visa run deep.

One: Republicans will still be fighting among themselves over H-1B policy

As the chairman of the Judiciary Committee, Grassley will head a committee that controls immigration legislation in the Senate, dictating what bills are taken up, when and in what form they take. That's real power.

Grassley believes that H-1B visas are being used to replace U.S. workers and reduce wages, and he has sought curbs.

On other side of the spectrum is Sen. Orrin Hatch (R-Utah), who heads the Senate Republican High-Tech Task Force. Hatch is completely committed to raising the H-1B visa cap and with the fewest number of restrictions possible.

Hatch is the Senate's primary advocate for the IT industry; just last month, he said, "Our high-skilled worker shortage has become a crisis," and pointed to strong demand for H-1B visas. There were 172,500 petitions for the 85,000 visas available this year. (That view ignores arguments that H-1B demand is not an indication of labor demand.)

Hatch also has real power to assemble votes. Here's an example: When the Judiciary Committee last year was taking up the bipartisan immigration bill, Hatch introduced a series of amendments supported by the high-tech industry to modify it.

The Senate immigration bill included a provision requiring employers to first offer a job to an "equally qualified" U.S. worker before taking on a foreign worker. Hatch threatened to scuttle Republican support for the immigration bill unless the equally qualified provision was removed.

U.S. Sen. Chuck Schumer (D-N.Y.), who spearheaded the immigration bill fight on the Judiciary Committee, allowed the Hatch amendments to go through -- and the Senate passed a comprehensive bill. But the House of Representatives never took up the measure.

Will Grassley, as chairman, be in a stronger position to fend off the tech industry and fight Hatch? Grassley called the comprehensive bill a "stinky onion." He might be tougher than Schumer.

Two: H-1B support or opposition doesn't follow Tea Party lines

Something to keep in mind about the Republicans is that they can be very weird about the H-1B visa.

Former U.S. Rep. Eric Cantor (R-Va.), at the time the U.S. House majority leader and an H-1B supporter, lost a primary challenge in June to David Brat, a professor at Randolph-Macon College with a Ph.D. in economics. Brat, identified with the Tea Party, has called the H-1B visa "high-skilled cheap labor."

Contrast Brat's position with fellow Tea Party fave U.S. Sen. Ted Cruz (R-Texas). Cruz is considered among the Tea Party's most influential elected leaders. Last year, he supported raising the base H-1B cap by 500%.

Specifically, Cruz wanted to increase the 65,000 visa cap to 325,000. (There are currently another 20,000 H-1B visas set aside for advanced degree graduates of U.S. universities, for a total cap of 85,000.)

Three: Republicans could try a separate H-1B bill

The H-1B issue has never been a simply Republican or Democratic issue. Grassley's longtime co-advocate for increased restrictions is Sen. Dick Durbin (D-Ill.).

And Hatch teamed up with Amy Klobuchar (D-Minn.), Marco Rubio (R-Fla.), and Chris Coons (D-Del.) on legislation last year, the I-Squared Act of 2013, to allow the H-1B cap to rise as high as 300,000.

The H-1B increase has generally been tied to comprehensive immigration reform. Democrats, in particular, have blocked efforts to bring up the visa issue in separate bills because they don't want to weaken support for comprehensive reform. House Republicans, however, prefer a separate H-1B immigration bill. And that strategy has plenty of support in Senate.

Even with the Republicans in charge of the Senate, the demand for comprehensive reform - an all or nothing strategy - will still be alive and well. Senate Republicans will still need 60 votes to get a bill past a filibuster and if they want to go the standalone route, they'll want Democrats on board. That's because of opposition in the GOP from people such as U.S. Sen. Jeff Sessions (R-Ala.), an outspoken opponent of the visas.

Would President Obama sign a standalone H-1B visa increase? If it's one that the tech industry wants, the pressure to do so would be enormous.

Four: The Republicans may be too roiled to do anything

Some believe that the next two years on Congress will be a lot like the last two years, but with more anger.

Next month, Obama is expected to release a series of executive orders to reform immigration. He can't unilaterally raise the H-1B cap, but he may makes changes to employment green cards that could make it easier for skilled workers to get permanent residency.

The most consequential step, politically, that Obama could take involves the approximately 11 million or so undocumented immigrants already in the U.S. If those executive orders include provisions to allow, for instance, some to of the undocumented immigrants to legally work, the Republicans in the House and Senate may go ballistic. Grassley has already attacked Obama's plan.

Obama's executive action could trigger so much political turbulence that the Republicans take no action on immigration at all.

Five: What won't change next year

There is more than enough support in the Senate and House to increase the H-1B visa cap. There always has been. It's been held back, mostly, by the comprehensive immigration reform issue.

The tech industry has succeeded in reducing or narrowing the issue to one about retaining U.S. graduates. It has the money and the access to shape the debate.

The fact that some companies operating in the U.S. owe their success almost completely to the H-1B visa -- companies with the mission of transferring work overseas -- is only an issue for only minority of lawmakers.

Cautionary arguments by academics and a few policy groups that an H-1B workforce that's overwhelmingly young and male will increase age and sex discrimination, and hurt wages, has been pushed to the fringes.

In short, IT professionals who have been affected by offshoring remain invisible in Washington, regardless of the outcome the election. That's partly due to the layoff process.

An IT professional replaced by a visa-holding offshore worker may be asked to sign a non-disparagement and confidentiality provision as part of the severance. This helps to silence the group of people most affected by the program.

Confidentiality provisions, as well as concerns about finding a new job, is why affected IT professionals have little clout. When they speak it's usually anonymously. The result is that the tech industry can shape the H-1B debate almost entirely in its favor.

This story, "A Victorious GOP Would Shape the Senate's H-1B Debate" was originally published by Computerworld.

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