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Putting Americans First?
Critics of the government's H1-B visa program gained momentum in late January when Microsoft announced 5,000 layoffs within the next 18 months. Not too many days later, Senator Charles Grassley (R-Iowa), a leading critic of the temporary work visa program that allows American companies and universities to employ foreign guest workers within "specialty occupations," fired off a letter to Microsoft Chairman Steve Ballmer, encouraging Ballmer to remember the "moral obligation" to protect U.S. workers during the layoffs. Specifically, Grassley was concerned Microsoft would choose to keep H1-B workers over their American counterparts. The H1-B program is designed to help U.S. companies hire foreign guest workers on a temporary basis when there is not a sufficient qualified American work force to meet those needs. According to a 2007 report in InformationWeek, Microsoft is among the Top 10 companies (ranked 3rd) using H1-B workers. Other large American companies on the list include IBM and Oracle Corp. But should employers be tempted to follow Grassley's advice, they should think twice, says Valentine Brown, chair of immigration services at WolfBlock, based in Philadelphia. "Employers cannot lay off foreign workers first -- they have to follow normal procedures for termination decisions and treat H-1B workers as similarly as their American counterparts," Brown says. She adds that, when H1-B Visa holders are let go, the program requires employers to offer to pay for return flight home and requires the company to withdraw its petition with U.S. Citizenship and Immigration Services, or the employer will continue to be liable for H-1B wages. "There are also considerations for the workers as well," Brown says. "For example, they are 'out of status' the minute they are terminated, and have no legal status grace period." Robert E. Kennedy, the Tom Lantos Professor of Business Administration at the University of Michigan's Ross School of Business, says Grassley's letter may be "good politics, but it is bad economics." Kennedy, author of The Services Shift and executive director of the William E. Davidson Institute, explains that reducing H1-B workers first during layoffs -- and limiting H-1B visas in general -- will force global providers such as Microsoft, IBM and others to perform the work remotely when the economy recovers. "It is extremely unlikely that limiting or reducing H-1B visa workers will redirect work back to U.S. workers solely," he says. "The logic is that Indian nationals [or those from other developing countries] can do the work more cheaply and often more effectively." Kennedy, an expert on trends in global outsourcing, says global companies will be forced to move work offshore if the H1-B program is reduced, restricted or bears the brunt of layoffs, regardless of worker qualifications. "Potentially, this could be much worse for the U.S. economy," he says. "When the work is done here, the workers pay rent, eat out, pay taxes. When they do work from India, none of that happens." Kennedy, who has consulted with a number of global companies involved in the services-shift trend, says that H1-B critics such as Grassley are setting up a "false choice." By that he means critics say there are plenty of U.S.-born IT workers, so why the need for foreign workers? But the reality is IT workers are not generic skilled workers. "These are not generic workers, as there are many subsets of skills within IT, and not all of it always can be found among U.S. workers," he says. The real choices facing those companies are how they can better compete in the global marketplace, and how they can access the best talent they can find, he says. Also, it's important that they keep the work in the United States because, on most projects, team work is critical, and can't be done remotely. "If critics don't let U.S. companies bring talent here, those companies will have to take the work outside the U.S," he says, adding that pressuring companies to let H1-B workers go first is a mistake on several levels. Regarding the legality of it, Elena Park, who leads the immigration department at Cozen O'Connor, a global law firm, says it is clear by statute that an employer cannot select an individual for layoffs solely because of his or her nationality. "It is pure nationality discrimination," says Park, who has represented clients on diverse immigration issues before the U.S Department of Labor, U.S. Citizenship and Immigration Services, Immigration Board of Appeals, and the U.S. Customs and Border Protections. However, Park notes, where a U.S. citizen has equal qualifications as a foreign national, the foreign national can be selected for the layoff. As a result, she advises employers facing layoffs to carefully evaluate and document the qualifications of their workforce, and reduce head count accordingly. Nationality should not be a primary factor. "Employers taking this course of action are being consistent with current law and also taking a common-sense approach to our faltering economy," she says. "We need the best and brightest to jump-start our businesses and economy, regardless of nationality."
March 4, 2009 Copyright 2009© LRP Publications |
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