'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

The year 1998 was a pivotal one in the H-1B debate. One year earlier, the H-1B cap of 65,000 was reached for the first time, and demand for the visa was rising with the dot-com boom.

Before that year ended, the high-tech industry would win its fight to raise the visa cap as President Clinton's White House gave ground on a push for visa reform.

This story is revealed in memos that arrived in the White House mailbox of Elena Kagan, President Barack Obama's U.S. Supreme Court nominee. The U.S. Senate has been holding hearings this week on her nomination.

Kagan was a Clinton White House policy adviser in the mid- to late-1990s, and then part of a circle of senior administration officials working on the H-1B visa policy.

Although Kagan appears to be mostly a recipient and not an author of the various memos about this visa program, the debate over the administration's H-1B policy appears to unfold in her in-box.

The Sunlight Foundation, a Washington-based open-government advocacy group, said on Thursday that it had completed making Kagan's memos from her White House years accessible -- some 13,000 files in a database it calls Elena's Inbox.

The material is from President Bill Clinton's library, but what Sunlight did is to give this electronic correspondence a familiar "in-box" feel, and make it searchable.

The issues that were raised in 1998 over the H-1B visa are still debated today, but in late winter of that year, Congress was moving to raise the cap despite Clinton White House skepticism.

In March of that year, there was a White House meeting with "high tech + advocates," according to a memo sent to Kagan from another administration adviser, Julie Fernandes, that described a push by the tech industry for an increase in the H-1B cap. But it also noted, "Industry was reluctant to discuss long-term solutions and H1B reforms concurrent with our discussion of short-term solutions."

The Clinton administration wanted a cap increase coupled with reform of the H-1B program, and in a note to Kagan, Fernandes wrote about including provisions that would require companies to first try to hire U.S. workers, if the position paid less than $75,000.

Such a provision "calls industry's bluff re: their shortage of really highly skilled and desirable workers."

At the time of this White House debate on H-1B, in April 1998, testimony titled "Debunking the Myth of a Desperate Software Labor Shortage" was presented by Norm Matloff, a professor of computer science at the University of California, Davis, before the U.S. House Judiciary Committee's subcommittee on immigration.

Pointing to the White House memo about calling the bluff, Matloff said this meant that there was a belief among some in the White House that the tech companies weren't necessarily hiring "the best and brightest and they were not paying above $75,000 a year in many cases."

"On the one hand [the White House] realized that they were being sold a bill of goods but on the other hand politically they had no choice but to go along with the [H-1B] increase," said Matloff, citing the industry's then-increasing political clout.

In its push for reform, the White House saw a "press opportunity" to get its message out in July 1998, when The Washington Post began interviewing administration officials about H-1B visas for a story "from the worker's perspective," according to a White House memo.

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.