President Barack Obama believes this election will usher in immigration reform, which will include action on tech visa issues.
There is enough support in the Senate and House to increase work visas, temporary and permanent. But supporters of comprehensive immigration reform have stopped piecemeal, special-interest driven immigration legislation to keep support for a broader bill from peeling away. H-1B opponents have piggybacked on this opposition.
Obama, in an interview with the Des Moines Register editorial board in late October, outlined his immigration legislative strategy. The meeting was initially off-the-record, but it was later released. The key excerpt:
The second thing I’m confident we’ll get done next year is immigration reform. And since this is off the record, I will just be very blunt. Should I win a second term, a big reason I will win a second term is because the Republican nominee and the Republican Party have so alienated the fastest-growing demographic group in the country, the Latino community. And this is a relatively new phenomenon. George Bush and Karl Rove were smart enough to understand the changing nature of America. And so I am fairly confident that they’re going to have a deep interest in getting that done. And I want to get it done because it’s the right thing to do and I've cared about this ever since I ran back in 2008.
Hispanic voters overwhelmingly backed Obama in this election. If Obama's analysis is correct, then Republicans in the next Congress will be motivated to repair the electoral damage through comprehensive immigration reform. Any comprehensive bill will include changes to the tech visa landscape.
But what will immigration reform mean for the H-1B visa?
It will likely mean an H-1B increase of some sort. Congress could set a new cap, a fixed number above the existing 85,000 cap, which includes 20,000 visa set aside for advance degree graduates.
What lawmakers are likely to do is to seek an H-1B cap that’s “market-based.” How would this work? One example was in the failed Skil Bill (Securing Knowledge Innovation and Leadership Act). That legislation automatically increased the cap by 20% in any year the cap is met.
Critics say a market-based approach only raises the H-1B cap and never decreases it.
Green card outlook
Obama has been a proponent of making green cards available for students who receive advanced degrees in science, technology, engineering and math, collectively called the STEM degrees. There is much support in the Senate and House for providing an easy path to Green Cards for these students.
Both House and Senate Democrats and Republicans produced Green Card bills this year. In the House, the Republicans championed a proposal and brought it to a vote, but made sure it would not pass.
Instead of introducing their STEM visa legislation as a stand-alone bill, they put it on the suspension calendar, which required two thirds vote. The bill failed. The effort was designed to score political points with the tech sector.
About the Senate
Any proposal to increase H-1B visas will face trouble from Senators Dick Durbin (D-Ill.) and Chuck Grassley (R-Iowa).
Grassley and Durbin want to raise the wage ceilings on the work visa, as well as curtail offshore firm usage of temporary visas by limiting the number of H-1B or L-1 visas to 50 percent of the workforce for US firms with 50 or more employees.
New York Senator Chuck Schumer, who heads the Immigration, Refugees and Border Security subcommittee, has also been a critic of the H-1B program.
If Obama is right about the impact of this election on immigration reform, then changes are on the way for the H-1B and Green Card programs in the next Congress.
Grassley and Durbin have been role models of cooperation, at least on this issue, in an otherwise hostile political environment. But their concerns about the H-1B program, in particular, may get swept aside by the broader forces and issues that will make up an immigration reform package.