Microsoft, Rubio, Sessions and the H-1B ground war

Investigations into the visa program are still under way

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Microsoft's argument that the U.S. faces a shortage of people with STEM (science, technology, engineering and math) skills isn't helped by the 7,800 layoffs it announced last week.

In fact, said Sen. Jeff Sessions, (R-Ala.), chairman of the Senate's Immigration Subcommittee, Microsoft's latest cuts show "there is a surplus -- not a shortage of skilled, talented and qualified Americans seeking STEM employment."

Sessions' criticism of Microsoft -- the company declined to comment on his remarks -- was aimed at Senate supporters of the I-Squared H-1B bill as much as the company itself. I-Squared would increase the H-1B visa cap considerably.

Sen. Marco Rubio, (R-Fla.), now seeking the Republican nomination for president, is a primary sponsor of I-Squared. He is also from a state that includes Disney Parks and Resorts IT operations. Disney recently replaced IT workers by using IT services firms that are large users of the H-1B visa.

marco rubio official portrait 112th congress Marco Rubio office

Sen. Marco Rubio (R.-Fla.)

The reports of Disney's actions prompted Florida Sen. Bill Nelson, a Democrat, to ask for a federal investigation and for changes in the H-1B law. In doing so, Nelson became the 11th Senator in recent months to ask for a probe of the temporary visa program.

But Rubio did not join Nelson in that request. Brooke Sammon, a spokesperson for Rubio told Computerworld by email that Rubio's silence was not from a lack of concern. "Of course we are concerned about these reports, and if the program was misused then people should be held accountable," she said.

"We unfortunately don't have a lot of confidence in the Obama Administration's ability to carry out this investigation, protect American workers, or enforce our immigration laws," said Sammon, who called for "a complete, step-by-step overhaul of our immigration system so that our laws are enforced."

Rubio shows no similar lack of confidence in the I-Squared bill, and he signaled his support for more temporary visas to the tech industry last week.

Rubio outlined his innovation platform in a speech in Chicago, where he argued that there is a skills gap. He didn't mention the H-1B visa specifically, but he didn't have to. The "skills gap" claim is a bedrock assertion by Microsoft and others seeking a large H-1B visa hike. Using the phrase is seen as code.

I-Squared would increase the base visa cap from 65,000 to 195,000 and eliminate the cap on people who earn an advanced degree in a STEM field.

I-Squared has alarmed critics of the temporary visa program. The professional engineering group, IEEE-USA, claims the bill would "help destroy" the U.S. tech workforce by flooding the market with lower-cost foreign workers who can undercut and replace their U.S. counterparts.

Microsoft is lobbying for the I-Squared bill, which doesn't have any visible momentum in Congress. But Sessions isn't going to miss an opportunity to criticize it. There are persistent concerns that its supporters, including Sen. Orrin Hatch (R-Utah), who serves in a top Senate leadership post, could find a backdoor way to move the measure forward.

Although there has been much anger over the displacement of U.S. workers at Disney, Southern California Edison and other employers, the use of temporary visa holders as a means to displace U.S. workers is something that's occurred for years. H-1B critics say the practice is allowed by law.

"It is ironic that we have Congress calling for investigations of activities they made legal in the first place," said John Miano, the founder of the Programmer's Guild and an attorney who has challenged the White House in court on H-1B-related issues.

It's not known yet what will result from the various H-1B investigations triggered by the Senate. Of particular interest, however, is what the Department of Justice will do.

Multiple sources indicate that the Justice Department's Office of Special Counsel for Immigration-Related Unfair Employment Practices is the office examining whether U.S. workers were discriminated against. Whether the office is conducting an investigation of any depth is not known. Justice officials did not respond to request for comment.

The idea that replacing U.S. workers with foreign workers on temporary visas constitutes an act of discrimination was initially raised in April. That question came in a letter championed by Sessions and Sen. Dick Durbin (D-Ill.), who asked whether displacement amounts to "prohibited citizenship status discrimination."

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