WASHINGTON -- In the history of the H-1B program, few people have played a role as important as that of Gene Sperling, who last week was appointed by President Obama to head the National Economic Council.
Sperling, who is replacing Lawrence Summers, led the council from 1996 to 2000, during the last four years of President Bill Clinton's term. During that time, Sperling brokered a deal with Congress to raise the visa cap to 195,000 -- the highest it has ever been -- between the years 2001 and 2003.
Today, the H-1B cap is set at 85,000, with 20,000 visas set aside for advanced degree graduates from U.S. universities. The economy has depressed demand for the visa among U.S. companies, but it has not softened the debate on the H-1B visa itself. Rather, the economic downturn has shifted the focus of the debate, which today centers on the use of the visas by offshore companies.
Former Rep. Bruce Morrison (D-Conn.) was the author of the 1990 immigration legislation that created the H-1B visa. That law was written before IT offshoring was on the map, and Morrison, in an interview with Computerworld, said that had offshore outsourcing been an issue at that time, he would have written the law differently.
"If I knew in 1990 what I know today about the use of it for outsourcing, I wouldn't have drafted it so that staffing companies of that sort could have used it," Morrison said. Jobs are going abroad because of globalization, he said, "but the government shouldn't have its thumb on the scale, making it easier."
In 1989, Morrison was chairman of the House Immigration Subcommittee, which created a professional visa category, the H-1B, and set a bachelor's degree as a minimum requirement. Congress also established a cap of 65,000 for H-1B visas at the time.
The intent was to create a program that tilted toward permanent immigration, Morrison said, hence the requirement for higher skilled workers and a limit on the number of visas "so there would be pressure to use the Green Card process" for visa holders who want to continue working in this country, he said.
But U.S. immigration and labor officials "have never created and maintained an expeditious process for bringing in permanent immigrants," Morrison said. The law could easily have been written with limitations on the visa's use for staffing by offshore companies, he noted.
Morrison said the U.S. government wants foreign companies to invest in the U.S. and to take advantage of the skills and resources available here. "You don't want to advantage them, subsidize them through rules and regulations to make it easier for them to move jobs abroad," he said.
Late last year, Congress imposed an additional $2,000 H-1B fee on offshore companies to discourage visa use. But Morrison said he doubted the fee will change the economics of offshoring. Instead, it has created "a pay to play" system, he noted, adding, "I'm not sure that's such a good idea."
Sperling's role in the offshore issue and the H-1B visa remain to be seen.
Harris Miller, who was the longtime head of the Information Technology Association of America, which has since been renamed TechAmerica, was involved in the meeting with Sperling in the late 1990s when the H-1B issue was being hashed out.
Miller said Sperling's role was to figure out whether there was a workable solution to the visa cap that wouldn't undercut what Miller characterized as the U.S. Labor Department's "ideological opposition to the H-1B program" and still keep the tech industry happy.
Miller recalls Sperling as being somewhat skeptical but willing to look at the issue in a more balanced perspective and take in the views of all parties. While he wasn't rejecting the Labor Department's advice "that somehow these H-1Bs were undercutting the U.S. labor market," he wasn't willing to buy into their rhetoric, Miller said.
"Generally, his reputation as a pragmatist -- as someone trying to look at the big picture -- held true in that conversation," Miller said.
The Clinton administration asked Congress to add fees to the H-1B visa to help pay for retraining of IT workers, but the White House didn't get everything it wanted, including a requirement that as many as 40% to 50% of the visas be set aside for people with master's degrees or above. It had also sought a cap of 200,000 visas, a figure that was later reduced to 195,000. But soon after the 2000 cap-increase law was passed, the dot-com bubble burst and with it fell demand for H-1B visas.
Carl Shusterman, a Los Angeles-based immigration lawyer, said the compromises that the White House and Congress made on the H-1B program have been to the visa's detriment.
"This law is more larded up with fees, regulations and hoops that employers have to jump through than probably all the other temporary visas put together," he said.
With some 10,000 visas still remaining before petitioning begins April 1 for the next fiscal year's allotment, Shusterman said he didn't see pressure on the Obama administration to address the visa issue. "I don't think that's in the works," he said.
Patrick Thibodeau covers SaaS and enterprise applications, outsourcing, government IT policies, data centers and IT workforce issues for Computerworld. Follow Patrick on Twitter at @DCgov, or subscribe to Patrick's RSS feed . His e-mail address is email@example.com.