Lobbying groups press Congress to rework an immigration bill that could add uncertainty to the task of hiring foreigners.
The prospect of unpredictable competition for a fixed number of immigrant visas based on an applicant's educational background and work history, which would replace the current employer-sponsored green card system, is drawing stiff opposition from technology lobbying groups that are pressing senators to preserve the current system.
Groups like Compete America, an alliance mostly composed of high-tech trade associations and individual companies, say the practice would chip away at the predictability of the current process for recruiting and hiring foreigners and leave too much control over the talent-screening process in the government's hands. The current proposal would hand out visas based on a point system that grades factors like education levels, family ties, English prowess and whether an occupation is considered "in-demand."
"The best the government can hope to do is select a pool of generically potentially qualified candidates, whereas a company knowing exactly what it needs, exactly what skills and exactly what kind of individual can best deliver is going to be far better able to make the right match," Lowell Sachs, Sun Microsystems' senior manager for federal government affairs, said in a telephone interview. Sun is one of the core members of Compete America.
In a change that would be akin to long-standing systems in Canada, Australia and the United Kingdom, the proposed merit-based system would eventually allocate about 380,000 green cards each year to foreigners with the highest scores--up to 100 points--based on certain criteria. The bill is called the Secure Borders, Economic Opportunity, and Immigration Reform Act of 2007 (PDF).
Supporters of the idea, including the Bush administration and key Senate Democrats like Sen. Edward Kennedy (D-Mass.), say the overhaul is necessary in order to ensure that both "high-skill" and "low-skill" workers have a chance at obtaining permanent residency in the United States and to reward well-educated, English-speaking foreigners capable of working in specialty and high-demand fields.
The system works through simple addition, with up to 100 points allocated for categories such as occupation type and language fluency. An example: someone with a master's degree would automatically receive 20 points; people with English fluency would receive 15; and people in occupations found to have grown the largest amount in the past decade by the Department of Labor would receive 16 points. (The most recent survey, which offered projections between 2004 and 2014, ran the gamut, including computer scientists, registered nurses, food preparers and waiters, janitors and maids, retail salespeople, receptionists, office clerks and truck drivers.)
What that means is a brilliant 40-year-old computer programmer who a company like Google or Apple views as crucial to the success of a forthcoming product could easily score less than a new nursing school graduate with zero work experience (younger workers get an extra three points). That's even more likely to happen if the programmer isn't proficient in English and the nurse is (an extra 15 points), or if the programmer doesn't have formal education in a science, technology, engineering or math field (which could potentially add an extra eight points to the nurse's score).
Uncertainty over "high demand" jobs
Some immigration experts said it's not entirely clear whether the system proposed by the Senate bill would do more to harm or help technology employers.
After all, the system would award bonus points to foreigners who have worked in science, technology, engineering or math occupations in the United States for at least one year and to those seeking occupations in designated high-demand fields, which include computer software engineering and systems analysis.
"In actual use, probably most of the jobs for which companies are hiring high-tech workers and most of the workers would probably score high enough," said Doris Meissner, a senior fellow with the Migration Policy Institute, a Washington think tank, and commissioner of the U.S. Immigration and Naturalization Service during the Clinton administration.
Still, she added: "If the person they want doesn't score high enough, they would not be able to reach the person, even though that is who they have identified and selected to fill a particular job. It adds another layer of complexity and procedure, and most important, it adds uncertainty. Employers don't like that."
Another worry is that the government could change its mind about the definition of "specialty" (worth 20 points) or "in-demand" (worth 16 points) occupations. Because it's unclear which occupations will fall into those categories if and when the law takes effect, it's a "much bigger wild card than anyone is comfortable with," said Bob Sakaniwa, associate director of advocacy for the American Immigration Lawyers Association, which is part of Compete America and does not support the Senate bill as written.A software engineer with a sufficient number of points to make the green card cut isn't necessarily the one his company would want to hire, Sun's Sachs said. He compared a pool of generically qualified software engineers with that of doctors--"what happens if I'm interested in finding a brain surgeon and I've got a bunch of people to pick from, a pediatrician over here, a podiatrist over here, but no brain surgeon?"
There's also the constant worry, he added, that the allocated number of green cards will run out before everyone who is qualified for them can apply.
Compete America argues that any glimmer of uncertainty about whether potential talent could be shut out by point system requirements means the idea should be tested before Congress moves to scrap the existing employer-based green card system.
Right now, companies are able to sponsor and apply for green cards directly on behalf of the foreigners they wish to bring onboard, provided they can certify that there's no qualified American who can do the job and that the potential foreign hire has the necessary credentials to fill it.
The best of both worlds?
That additional flexibility is a major reason why Compete America has applauded an amendment (PDF) chiefly sponsored by Sens. Maria Cantwell (D-Wash.) and John Cornyn (R-Texas) that is expected to be voted on this week.
The amendment would reinstate 140,000 employer-based green cards while keeping the proposed point system in place. The effective number of green cards allowed under the amendment could climb even higher because it would exempt from the cap "very highly skilled immigrants." That category includes people who have earned a master's or higher degree from a U.S. institution or have received national or international acclaim for "extraordinary ability" in the sciences, arts, education, business or other fields.
Technology companies also have praised the amendment because it would provide for potentially huge increases in H-1B visas, the temporary work visas they have long argued are available in too short a supply to fill crucial gaps in their operations.
The underlying immigration bill already proposes a bump from 60,000 to 115,000 H-1Bs per year. The amendment proposes making available infinite quantities of such work permits for anyone with an advanced degree from a U.S. university or with advanced degrees in science, technology, engineering and mathematics from foreign universities. A similar proposal, also co-sponsored by Cantwell, has already been introduced in the Senate.
The amendment has drawn renewed alarm, however, from the Programmers Guild, a group that represents American technical and professional workers in information technology fields and argues for limits on worker visas.
Decrying the legislation as "war on American tech workers," the organization has argued that the unfettered crop of foreigners with advanced degrees alone would flood the market, discouraging American companies from hiring native graduates.
Kim Berry, the group's president, said in an e-mail interview that the point system is also problematic because it "distributes green cards unnecessarily, with no finding that no Americans are available." By the Programmers Guild's interpretation, the bill erases an existing requirement of certifying a U.S. labor shortage before hiring a worker on a green card.
A merit-based point system could prove a good approach if it gives immigrants more leverage to choose their employers and to bargain for better salaries, said Ron Hira, a professor of public policy at the Rochester Institute of Technology who has written critically about outsourcing American jobs.
"Employers, at the low-skill and high-skill, have shown that they can't control themselves from exploiting the programs," Hira said in an e-mail interview. "So, I think the key positive factor is this de-linking the visa from the employer."
Federal auditors reported last year that not all employers who take on visa workers had committed to paying their recruits the so-called prevailing wage determined by the U.S. government.
Sun's Sachs, for his part, blasted any allegations that high-tech companies have been taking advantage of foreign labors, adding that foreigners are actually paid "quite well." He added: "My flip response to it is that might be right in a bizarro world, but it's not true in this dimension, where I live."