Date: Sat, 24 Jan 2009 10:48:50 -0800 From: Norm Matloff To: Norm Matloff Subject: Senator Grassley queries Microsoft re layoffs and H-1B To: H-1B/L-1/offshoring e-newsletter Contrary to many misinformed (and probably disinformed, courtesy of industry lobbyists) letters that many members of Congress send their constituents, the H-1B visa doesn't require that American workers be given employment priority. That includes not only hiring but also layoffs. There is an exceptional category in the visa, discussed below, but it is tiny. In fact, a number of major American firms have admitted to laying off Americans while retaining H-1Bs, for instance Sun Microsystems. (Santiglia v. Sun Microsystems, U.S. Dept. of Labor, Office of Administrative Law Judges, Case No.: No. 2003-LCA-2, pages 9 and 206; San Francisco Chronicle, June 25, 2002.) Moreover, many major firms have laid off Americans and forced them to train their H-1B/L-1 replacements. (See for example Margaret Quan, "Critics Warn New Visa Bill Doesn't Go Far Enough," Electronic Engineering Times; May 22, 2003 and WKMG-TV news broadcast, Where Did the Jobs Go?, http://www.local6.com/news/1984334/detail.html, February 17, 2003, updated February 19; Jim Gardner, "Bank Job: You're Fired, Now Go Train Your Replacement," San Francisco Business Times, November 22, 2002; Jennifer Bjorhus, "U.S. Workers Taking H-1B Issues to Court," San Jose Mercury News, September 26, 2002.) In Guy Santiglia's complaint cited above, Sun Microsystems took a defiant stance in the press, saying that they could hire and fire whomever they wanted, regardless of whether a worker held an H-1B visa or not. There is indeed nothing to stop them. Sun claimed that they retained H-1Bs only because they were better workers. For many reasons, I'm quite suspicious of that claim, but those who work in the trenches have also seen that managers often don't have the heart to lay off an H-1B, thus removing the right to work in the U.S. and possibly forcing him/her to return to the home country. (As if that were a catastrophe second to none.) But I'm surprised to see Microsoft actually admit that publicly, as they do in one of the enclosures below. Senator Grassley, who wrote the letter to Microsoft included below, introduced an excellent H-1B reform bill with Senator Durbin in previous sessions. Among other things, it would extend the protections in H-1B's minuscule "H-1B dependent employers" provision to all employers. This would prohibit hiring of H-1Bs while laying off Americans, but to my knowledge would not cover the issue of laying off H-1Bs. By the way, I have not heard whether Grassley and Durbin plan to reintroduce their bill. Of course, the statements made by Microsoft and lawyer Weber below are standard industry lobbyist propaganda. I've refuted their points many times and will not take time to address them all here, but I do feel compelled to address one: "Perhaps Senator Grassley forgot that Google and innumerable other large and small American companies that were founded by foreign workers have created tens of thousands of jobs for U.S. citizens... Google was NOT founded by "foreign workers." Page was born in the USA, and Brin immigrated to the U.S. as a child. Brin was NOT a foreign student and he was NOT an H-1B. Moreover, we don't need Google. I use it every day and enjoy its cute pictures etc., but I could do just as well with the search engines offered by Yahoo! or Microsoft or others. Norm U.S. Sen. Grassley: Works to ensure American workers are priority http://www.iowapolitics.com/index.iml?Article=146650 1/23/2009 Grassley Works to Ensure American Workers are Priority WASHINGTON – Senator Chuck Grassley today said that in a time of economic downturn, American workers must be a top priority for American companies. Grassley reiterated those words after he sent a letter to Microsoft urging the company to make efforts to retain qualified American workers during the recently announced lay-offs. Microsoft employs thousands of people through the H-1B visa program. This temporary work visa program allows American companies and universities to employ temporary foreign guest workers who have the equivalent of a U.S. bachelor’s degree in a job category that is considered by the U.S. Citizenship & Immigration Services to be a "specialty occupation." The purpose of the h-1b program is to help companies hire foreign guest workers on a temporary basis when there is not a sufficient qualified American workforce to meet those needs. However, the program is not intended to replace qualified American workers. In October 2008, U.S. Citizenship and Immigration Services released an internal report that found the H-1B program has more than a 20 percent violation rate. The fraud identified in the report included jobs not located where employers claimed, H-1B visa holders not being paid the prevailing wage, forged documents, fraudulent degrees, and shell businesses. In one instance the H-1B position described by the employer was “business development analyst.” However, it turned out that the H-1B visa holder would be working at a laundromat doing laundry and maintaining washing machines. Grassley has been a leader in the effort to improve the H-1B visa program. In the 110th Congress, he introduced a comprehensive H-1B and L visa reform bill with Senator Dick Durbin that would give priority to American workers and crack down on unscrupulous employers who deprive qualified Americans of high-skill jobs. He has also asked questions of both American and foreign based companies about their use of the H-1B visa program. Here is a copy of the text of Grassley’s letter January 22, 2009 Mr. Steve Ballmer Microsoft Corporation One Microsoft Way Redmond, WA 98052-6399 Dear Mr. Ballmer: I am writing to inquire about press reports that Microsoft will be cutting approximately 5,000 jobs over the next 18 months. I understand that the layoffs will affect workers in research and development, marketing, sales, finance, legal and corporate affairs, human resources, and information technology. I am concerned that Microsoft will be retaining foreign guest workers rather than similarly qualified American employees when it implements its layoff plan. As you know, I want to make sure employers recruit qualified American workers first before hiring foreign guest workers. For example, I cosponsored legislation to overhaul the H-1B and L-1 visa programs to give priority to American workers and to crack down on unscrupulous employers who deprive qualified Americans of high-skilled jobs. Fraud and abuse is rampant in these programs, and we need more transparency to protect the integrity of our immigration system. I also support legislation that would strengthen educational opportunities for American students and workers so that Americans can compete successfully in this global economy. Last year, Microsoft was here on Capitol Hill advocating for more H-1B visas. The purpose of the H-1B visa program is to assist companies in their employment needs where there is not a sufficient American workforce to meet their technology expertise requirements. However, H-1B and other work visa programs were never intended to replace qualified American workers. Certainly, these work visa programs were never intended to allow a company to retain foreign guest workers rather than similarly qualified American workers, when that company cuts jobs during an economic downturn. It is imperative that in implementing its layoff plan, Microsoft ensures that American workers have priority in keeping their jobs over foreign workers on visa programs. To that effect, I would like you to respond to the following questions: * What is the breakdown in the jobs that are being eliminated? What kind of jobs are they? How many employees in each area will be cut? * Are any of these jobs being cut held by H-1B or other work visa program employees? If so, how many? * How many of the jobs being eliminated are filled by Americans? Of those positions, is Microsoft retaining similar ones filled by foreign guest workers? If so, how many? * How many H-1B or other work visa program workers will Microsoft be retaining when the planned layoff is completed? My point is that during a layoff, companies should not be retaining H-1B or other work visa program employees over qualified American workers. Our immigration policy is not intended to harm the American workforce. I encourage Microsoft to ensure that Americans are given priority in job retention. Microsoft has a moral obligation to protect these American workers by putting them first during these difficult economic times. Sincerely, Charles E. Grassley United States Senator Microsoft Pri0 Welcome to Microsoft Pri0: That's Microspeak for top priority, and that's the news and observations you'll find here from Seattle Times technology reporter Benjamin J. Romano, who has been covering the company for more than two years. E-mail Ben| RSS feeds Subscribe | Blog Home| Brier Dudley's Blog January 23, 2009 2:53 PM Senator wants Microsoft to preserve American jobs over those of foreign guest workers Posted by Benjamin J. Romano Update after the jump. U.S. Sen. Chuck Grassley, R-Iowa, sent a letter to Microsoft CEO Steve Ballmer Thursday expressing concern over how the company may go about its layoffs. "I am concerned that Microsoft will be retaining foreign guest workers rather than similarly qualified American employees when it implements its layoff plan," Grassley said in the letter, posted to his Web site. The company announced plans to cut a net 2,000 to 3,000 jobs Thursday, its first companywide layoff. The senator asked Ballmer for details on the jobs to be eliminated; how many are held by H-1B or other work visa program employees; how many are held by Americans and, of those positions, how many similar positions held by foreign guest workers are being retained; and how many H-1B or other work visa program workers Microsoft will retain when the layoff is complete. "My point is that during a layoff, companies should not be retaining H-1B or other work visa program employees over qualified American workers," Grassley wrote. "Our immigration policy is not intended to harm the American workforce. ... Microsoft has a moral obligation to protect these American workers by putting them first during these difficult economic times." Grassley pointed out that Microsoft has lobbied Congress for an expansion of the H1-B program. The program, as Grassley's office described it in a news release, "allows American companies and universities to employ temporary foreign guest workers who have the equivalent of a U.S. bachelorâs degree in a job category that is considered by the U.S. Citizenship & Immigration Services to be a 'specialty occupation.' The purpose of the H-1B program is to help companies hire foreign guest workers on a temporary basis when there is not a sufficient qualified American workforce to meet those needs." A Microsoft spokeswoman told Reuters, that the company had not received the letter, but would respond to Grassley directly. "I'm not aware of any rule that says you have to lay off H-1B workers before anyone else," said Cletus Weber, founder and partner with Mercer Island-based immigration law firm Peng & Weber. [Update, 4:45 p.m.: Weber did some additional research and added this via e-mail: "I believe arbitrarily laying off lawfully employed foreign workers first would subject these companies to potential legal liability under federal anti-discrimination laws. "Perhaps Senator Grassley forgot that Google and innumerable other large and small American companies that were founded by foreign workers have created tens of thousands of jobs for U.S. citizens. It is laudable for Senator Grassley to champion the cause of the American worker, but his calling for blatantly discriminatory layoffs is anti-competitive scapegoating, and in many ways removes some of the innovation that created large numbers of American jobs in the first place."] In 2007, Microsoft said that about one-third of its 46,000 U.S.-based employees at the time had work visas or were legal permanent residents with green cards. Update, 7:28 p.m.: Microsoft did respond to queries in the evening with this statement: "We made the difficult decisions on which jobs would be eliminated based on a detailed assessment of our current and future business opportunities. The initial reductions we announced affect employees in a number of business units, and a significant number of the affected employees are foreign citizens working in this country on a visa. We recognize the human impact that our workforce reduction has on every affected worker and their families. For many of the employees here on a visa, being laid off means that they have to leave the country on very short notice, in many cases uprooting families and children. We care about all our employees, so we are providing services and support to try to help every affected worker, whether they are U.S. workers or foreign nationals working in this country on a visa."