How the next president will change the H-1B visa

What’s ahead for skilled visa workers in the presidential contest

Marco Rubio and Donald Trump
Jason Bahr/CNBC

Thanks to Disney's IT layoff, the Florida primary -- scheduled for March 15 -- might be the most telling on the H-1B visa issue.

The displaced Disney IT workers in Florida have given new visibility to the use of the H-1B visa. It has become the marquee case for visa reform.

Here's an early outlook on how the various presidential candidates may approach this issue if elected.

What if Trump wins the presidency?

President Donald Trump would change things.

India is on Trump's list of countries "ripping off" the U.S., along with China, Japan and Mexico. His immigration platform includes a series of H-1B reforms, including a hire-Americans-first provision.

Laid off Disney IT workers, who complained of training visa-holding replacements, spoke this week at a Trump rally. Sen. Jeff Sessions (R-Ala.), a leading proponent of H-1B reforms, is endorsing him.

If the Republicans continue to hold both chambers of Congress, the prospects for a standalone H-1B bill improve.

Comprehensive immigration reform proponents oppose piecemeal approaches, blocking H-1B cap increases as well as reforms. President Barack Obama may veto a standalone reform bill, but President Trump would likely sign the bill.

But Trump, the billionaire businessman seeking the GOP nomination, is also a wild card.

Trump may want H-1B reforms bundled with the legislation he needs to build a border wall and fund mass deportations, setting the stage for a different kind of fight with Congress.

From a tech industry perspective, the most immediate danger posed by a President Trump may his use of the president's executive powers. He could attack the H-1B program with new enforcement approaches, as well curb the Optional Practical Training STEM extension that Obama now wants to expand.

What if Clinton wins the presidency?

Former Secretary of State Hillary Clinton doesn't talk about the H-1B program. She doesn't mention it in her immigration platform or on the campaign trail. But she is not a total enigma.

Clinton, who is seeking the Democratic nomination, supports comprehensive immigration reform. She is unlikely to rile India on trade, but would accept some reforms to the H-1B program if they are part of a comprehensive immigration bill.

It remains to be seen whether Clinton -- possibly to offset Trump on this issue -- will be forced to directly talk in the campaign about the H-1B issue.

What if Bernie Sanders wins the presidency?

U.S. Sen. Bernie Sanders, the Vermont independent seeking the Democratic nomination, is a critic of the H-1B program and would be receptive to standalone reform legislation.

Sanders and Clinton haven't talked about the visa program in any of their debates. It's been a missed opportunity, and the people at fault are the national news reporters who pose the questions.

What if Rubio wins the presidency?

U.S. Sen. Marco Rubio (R-Fla.) is aligned with Sen. Orrin Hatch (R-Utah), who is the tech industry's chief Senate advocate for increasing the H-1B visa cap.

But Florida is ground zero for some of the most visible H-1B-related layoffs, with the Disney just the latest. Rubio's pro-industry views may be tested here.

U.S. Sen. Bill Nelson (D-Fla.), has been troubled by the Disney layoffs, but Rubio apparently has not been.

If Rubio can win in Florida, it may be proof that the H-1B issue is too niche and a non-factor in a national contest. The next two weeks may determine whether this issue has legs in the national debate.

What if Cruz wins the presidency?

Sen. Ted Cruz is co-sponsoring H-1B reform legislation with Sen. Sessions. His bill attacks H-1B usage by raising the wages of visa workers. It also includes a prohibition on non-disparagement clauses that keep IT workers from talking publicly about their experiences.

If Cruz raises the H-1B issue at all in his campaign, it ought to be in Florida.

Rubio has tried to offset Cruz's H-1B reform legislation by ignoring the Sessions/Cruz bill and pointing out, instead, that in 2013, Cruz supported a substantial hike in the H-1B visa cap. Rubio is a sponsor of Hatch's Immigration Innovation Act, also called the I-Squared Act, which would raise the annual base H-1B cap to between 115,000 and 195,000 visas. (The current annual base H-1B cap is 65,000.)

As president, Cruz would work with Sessions and other H-1B reformers. He might attack the OPT program as well, using his executive powers.

What impact is the presidential contest having on the H-1B issue?

One clear impact is being felt by Nasscom, India's IT trade group. It is stepping up defense of the offshore industry model.

R. Chandrashekhar, the industry group's president, argues that the use of IT services firms is about improving and modernizing IT operations at clients' businesses. The visa workers aren't there to simply replace the U.S. workers, but to modernize IT operations, he argues.

"It's certainly not with the intention of just getting in a set of people to replace an existing set of people and continue to do things in the same manner," said Chandrashekhar, in an interview. "That doesn't make for a good business case in any sense."

What Chandrashekhar doesn't want is for India to be singled out by lawmakers.

Many of the reform proposals attack the wages paid to H-1B workers. If visa wages rise, the economics of offshoring decisions change, argue reform proponents.

Whatever is done by lawmakers regarding the H-1B visa, "it should be applied uniformly to everybody," said Chandrashekhar. That means any reforms apply to U.S. outsourcers as well as to overseas firms.

Can the presidential election actually change the way the H-1B program operates?

Whether a new president can change the IT offshoring industry by altering the H-1B visa program remains to be seen.

The president has executive power and can complicate the H-1B program, but Congress sets the visa cap and many of the visa rules. The lobbying forces are powerful. The IT workers at risk are mostly invisible.

IT workers who have been "shadowed," participated in "knowledge transfer" or otherwise trained their replacements are often older, and have long tenures. They may make good money and benefits.

These are the workers who run the IT systems that power manufacturing systems, utilities, healthcare and retailers, and are far removed from the glamour jobs at Twitter, Google, Facebook and the catchy startups.

One former utility IT worker posted an ad on Craigslist, since removed, with the title: "50% off labor sale -- outsourced IT worker."


Copyright © 2016 IDG Communications, Inc.

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