A victorious GOP would shape the Senate's H-1B debate

Five points to consider if Republicans wind up in complete charge of Congress after the midterms

If the Republicans win the Senate on Tuesday, the power shift will affect the nation's ongoing H-1B visa debate.

The H-1B visa program's strongest critic, Sen. Charles Grassley (R-Iowa), would become the chairman of the Senate Judiciary Committee, putting him in a commanding position to shape legislation. But Grassley's power isn't absolute, and he faces strong foes. In Congress, divisions among Republicans over the H-1B visa run deep.

Here are five points to consider about how the H-1B debate could be affected by the outcome of the midterm elections.

1. Republicans will still be fighting among themselves over H-1B policy

As the chairman of the Judiciary Committee, Grassley would head a panel that controls immigration legislation in the Senate, dictating what bills are taken up, when they're debated and in what form they take. That's real power.

Grassley believes that H-1B visas are being used to replace U.S. workers and reduce wages, and he has sought curbs.

On other side of the spectrum is Sen. Orrin Hatch (R-Utah), who heads the Senate Republican High-Tech Task Force. Hatch is committed to raising the H-1B visa cap and prefers the fewest number of restrictions possible.

Hatch is the Senate's primary advocate for the IT industry. Just last month, he said, "Our high-skilled worker shortage has become a crisis" and pointed to strong demand for H-1B visas. There were 172,500 petitions for the 85,000 visas available this year. (That view ignores arguments that H-1B demand is not an indication of labor demand.)

Hatch also has real power to assemble votes. Here's an example: When the Judiciary Committee last year was taking up the bipartisan immigration bill, Hatch introduced a series of amendments supported by the high-tech industry to modify it.

The Senate immigration bill included a provision requiring employers to first offer a job to an "equally qualified" U.S. worker before hiring a foreign worker. Hatch threatened to scuttle Republican support for the immigration bill unless the "equally qualified" provision was removed.

Sen. Chuck Schumer (D-N.Y.), who spearheaded the immigration bill fight on the Judiciary Committee, allowed the Hatch amendments to go through -- and the Senate passed a comprehensive bill. But the House of Representatives never took up the measure.

Will Grassley, as chairman, be in a stronger position to fend off the tech industry and fight Hatch? Grassley called the comprehensive bill a "stinky onion." He might be tougher than Schumer.

2. H-1B support or opposition doesn't follow Tea Party lines

Something to keep in mind about the Republicans is that they can be very weird about the H-1B visa.

Former Rep. Eric Cantor, a Virginia Republican who was House majority leader and an H-1B supporter when he was in office, lost a primary challenge in June to David Brat, an economics professor at Randolph-Macon College who has called the H-1B visa program a vehicle for securing "high-skilled cheap labor."

Brat is identified with the Tea Party, but his opposition to the H-1B program stands in contrast to the views of fellow Tea Party fave Sen. Ted Cruz (R-Texas). Considered among the Tea Party's most influential elected leaders, Cruz last year supported raising the base H-1B cap by 500%.

Specifically, Cruz wanted to increase the cap from 65,000 visas to 325,000. (There are currently another 20,000 H-1B visas set aside for people from other countries who have earned advanced degrees at U.S. universities, for a total cap of 85,000.)

3. Republicans could try a separate H-1B bill

The H-1B issue has never been a simply Republican or Democratic issue. Grassley's longtime co-advocate for increased restrictions is Sen. Dick Durbin (D-Ill.).

And Hatch teamed up with Amy Klobuchar (D-Minn.), Marco Rubio (R-Fla.), and Chris Coons (D-Del.) on legislation last year, the I-Squared Act of 2013, that called for allowing the H-1B cap to rise as high as 300,000 visas.

Calls for increasing the H-1B cap have generally been tied to comprehensive immigration reform. Democrats, in particular, have blocked efforts to bring up the visa issue in separate bills because they don't want to weaken support for comprehensive reform. House Republicans, however, prefer a separate H-1B immigration bill. And that strategy has plenty of support in Senate.

Even with the Republicans in charge of the Senate, the demand for comprehensive reform -- an all-or-nothing strategy -- will still be alive and well. Senate Republicans will still need 60 votes to get a bill past a filibuster, and if they want to go the stand-alone route, they'll want Democrats on board. That's because of opposition in the GOP from people such as Sen. Jeff Sessions (R-Ala.), an outspoken opponent of the visas.

Would President Obama sign a stand-alone H-1B visa increase? If it's one that the tech industry wants, the pressure to do so would be enormous.

4. The Republicans may be too roiled to do anything

Some believe that the next two years on Congress will be a lot like the last two years, but with more anger.

Next month, Obama is expected to release a series of executive orders to reform immigration. He can't unilaterally raise the H-1B cap, but he may make changes to employment green cards that could make it easier for skilled workers to get permanent residency.

The most consequential step, politically, that Obama could take involves the approximately 11 million or so undocumented immigrants already in the U.S. If those executive orders include provisions to allow, for instance, some to of the undocumented immigrants to legally work, Republicans in the House and Senate may go ballistic. Grassley has already attacked Obama's plan.

Obama's executive action could trigger so much political turbulence that the Republicans take no action on immigration at all.

5. What won't change next year

There is more than enough support in the Senate and House to increase the H-1B visa cap. There always has been. Movement on that front has been held back, mostly, by the comprehensive immigration reform issue.

The tech industry has succeeded in reducing or narrowing the issue to one about retaining U.S. graduates. It has the money and the access to shape the debate.

The fact that some companies operating in the U.S. owe their success almost completely to the H-1B visa -- companies with the mission of transferring work overseas -- is an issue for only a minority of lawmakers.

Cautionary arguments by academics and a few policy groups that an H-1B workforce that's overwhelmingly young and male will increase age and sex discrimination, and hurt wages, has been pushed to the fringes.

In short, IT professionals who have been affected by offshoring remain invisible in Washington, regardless of the outcome the election. That's partly due to the layoff process.

An IT professional replaced by a visa-holding offshore worker may be asked to sign a non-disparagement and confidentiality provision as part of his severance agreement. This helps to silence the group of people most affected by the program.

Confidentiality provisions, as well as concerns about finding a new job, is why affected IT professionals have little clout. When they speak, it's usually anonymously. The result is that the tech industry can shape the H-1B debate almost entirely in its favor.

Copyright © 2014 IDG Communications, Inc.

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