'Elena's Inbox' details H-1B battle in Clinton White House

Memos to Supreme Court nominee Elena Kagan from Clinton administration opens door to battle over H-1B visa in critical year

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One question asked by the reporter to a U.S. Department of Labor official was: "Is it true that employers don't have to advertise for the jobs into which they hire the H-1B workers?" In response, Labor Department program chief John Frasier said, "Yes, that's why we're seeking the 'recruitment' attestation," according to retelling of the conversation in the memo.

A recruitment attestation would have likely required an employer to affirm that a good-faith effort had been made to first hire a U.S. worker.

A White House memo to then-Vice President Al Gore, written in part by Gene Sperling, the president's national economic adviser, outlined the administration's position as believing that "it may be necessary in the short-term to increase the number of visas."

But it wanted the increase coupled with educational assistance and reforms, including "requiring employers to attest to having attempted to recruit U.S. workers before applying for an H-1B worker and to having not laid off a U.S. worker in order to hire an H-1B worker," the memo to Gore said.

The Clinton administration threatened a veto if it didn't get want it wanted.

But later memos point to a change in White House direction on the issue and detail a period of negotiation with Congress. Instead of requiring employers to make a good-faith effort to hire a U.S. worker in all cases, a narrower provision was adopted.

An increase in the H-1B cap was approved in October 1998, bringing it to 115,000. The compromise bill required recruitment attestation only to H-1B-dependent employers, defined as having 51 or more employees, at least 15% of whom were H-1B visa holders.

Today, the H-1B cap is 85,000, with 20,000 visas set aside for advanced-degree graduates.

Ron Hira, an assistant professor of public policy at the Rochester Institute of Technology, said, "The H-1B program's significant vulnerability to abuse was well understood by the Clinton administration, and initially it was worried about it.

"In fact, the administration threatened to veto any cap increase unless it came with significant reforms that ensured that American workers weren't harmed by the H-1B program," said Hira. "But as we now know from these e-mails, the Clinton administration caved in to the special interests of industry, leaving American workers high and dry, and leaving the huge loopholes in the H-1B program in place."

Even in a climate in which the IT employment market was exploding and unemployment in general was low, Hira said, "the flaws in the H-1B program were front and center in [Clinton White House] thinking."

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 pthibodeau@computerworld.com.

Copyright © 2010 IDG Communications, Inc.

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