CAMBRIDGE, MASSACHUSETTS--Americans spend a lot of time debating whether to let immigrants into the United States. They don't spend a lot of time debating how. And that's a problem, because while immigration supporters have been congratulating themselves for keeping America's doors open, they've barely noticed that the terms of entry are changing. More and more, immigrants are admitted not as potential citizens but as guest workers (a category Americans think only exists in Europe)--people allowed to work for a certain company for a certain amount of time and then told to go home.
Congress is currently considering three bills to dramatically increase the number of H-1Bs--skilled foreign workers on temporary visas in the United States. Such workers, though often well-paid, are bound to the businesses that brought them over. If they are fired or they quit, they can be immediately deported. Once their jobs end, so do their stays in the United States. They are not full Americans, and they never can be.
Since the terms of their visas encourage H-1Bs to be docile, many big companies like the arrangement. In Workforce magazine, a vice president of an engineering recruiting firm cheerfully called the H-1Bs a "new race of nomads." An editorial in the same publication praised (without irony) their "remarkable loyalty." Politicians on Capitol Hill, led by Republican Senator Spencer Abraham of Michigan and Republican Representative David Dreier of California, have sponsored legislation to increase the number of H-1Bs from 115,000 to 195,000 per year, and President Clinton and House Minority Leader Richard Gephardt support the increase. Until recently, the only opposition came from groups suspicious of immigration in general: the Institute of Electronics and Electrical Engineers (IEEE), the Programmer's Guild, the American Engineering Association, the AFL-CIO (for which H-1Bs are not a priority issue), and the nativist organization fair, which has run ugly ads against Abraham in Michigan impugning his Arab heritage.
But now someone is finally questioning the H-1B increase for the right reasons. On May 1, a group dubbed the Immigration Reform Coalition published an open letter in Roll Call calling on Congress to begin replacing H-1B visas with "conditional green cards" that would allow foreign workers to qualify for citizenship like other immigrants. The letter was organized by Paul Donnelly, who worked on the original Immigration Act of 1990 and on the late Barbara Jordan's Commission on Immigration Reform and who, as immigration consultant for the IEEE, has helped wean the organization from its outright opposition to immigration. The letter was signed by some of the superstars of the new economy, including Linus Torvalds, an H-1B himself and inventor of the Linux operating system; Esther Dyson, chairman of EDventure Holdings; and Steve Wozniak, cofounder of Apple Computer. It was immediately denounced by lobbyists who advocate increasing the H-1B-visa allotment, but they will not be able bury it so easily--in part because the arguments against it are so un-American that they are hard to publicly make.
H-1b visas date from the 1990 Immigration Act. The act, whose section on temporary workers was drafted by Connecticut Representative Bruce Morrison, set a limit of 65,000 new H-1B visas a year while increasing the number of green cards from 54,000 to 140,000. The idea was to encourage companies to sponsor potential citizens rather than guest workers. But Morrison's strategy failed. The Labor Department and the Immigration and Naturalization Service (INS), which were charged with issuing green cards, are two of the most inefficient agencies in government. Applications have been held up for as long as four years by software glitches, breakdowns in fingerprinting, and an onerous labor-certification process that requires employers sponsoring an immigrant to prove there are no American employees with similar skills living nearby. Says Morrison, who how heads the Federal Housing Finance Board, "The Department of Labor is in the business of getting in the way of labor certification."
As a result of this logjam, the Labor Department and the INS continually issue fewer green cards than Congress authorizes--54,000 fewer in 1998 and 78,000 fewer in 1999. So, when the demand for skilled workers rose sharply in the mid-'90s, employers turned increasingly to H-1B workers. In 1998, Congress, under pressure from business, raised the cap from 65,000 to 115,000. This year, companies reached their H-1B hiring limit by March and began to clamor for another raise in the cap.
Some who oppose a higher cap argue that there really isn't a labor shortage at all and that companies are simply using H-1Bs to replace aging (that is, middle-aged) and more expensive American-born programmers. Norman Matloff, a professor of computer science at the University of California, Davis, has authored a long paper, "Debunking the Myth of a Desperate Software Labor Shortage," in which he charges that industry is motivated not by a shortage of workers but by a desire for "cheap labor and `indentured servitude.'" But Matloff's arguments are not convincing. The Information Technology Association of America estimates that more than 800,000 high-tech jobs will "likely go unfilled" because of the shortage of computer professionals. And, even if one doubts that the real figure is that high, it's certainly true that the number of computer-related jobs has been skyrocketing--the Bureau of Labor Statistics projects a 109 percent increase in demand for computer engineers between 1996 and 2006--while the number of engineering graduates at American universities has been declining.
What's important about the open letter in Roll Call is that its authors (unlike Matloff and most past H-1B critics) acknowledge there is a genuine need for foreign high-tech workers--they just seek to meet it without violating American traditions of citizenship. The letter represents a change of position for the IEEE, which had opposed any increase in high-tech immigration. Indeed, Matloff has attacked Donnelly for convincing the IEEE to back a "proposal under which industry could bring in foreign engineers and programmers on an expedited basis." Conversely, the Cato Institute and the National Immigration Forum have accused Donnelly and IEEE of remaining as anti-immigrant as ever--and simply using citizenship as a smoke screen to stop an increase in H-1Bs.
In response, donnelly organized a May 30 meeting at the Marriott Hotel across from the Massachusetts Institute of Technology. It included Morrison, Dyson, several successful cyber entrepreneurs, Ira Rubenstein of Microsoft, a representative from the IEEE, and two lawyers belonging to the pro-H-1B American Immigration Lawyers Association (AILA), whose members have gotten rich arranging temporary visas. The idea was to see whether the two sides could reach a common position. At first, any agreement seemed unlikely. When Donnelly and Dyson characterized the H-1B immigrants as "indentured workers," the AILA lawyers objected. Said Russell Swapp of Boston's Palmer & Dodge, "It is not an indentured workforce at all. These people are making comparable wages."
But the exchange between the open-letter signatories and Microsoft's Rubenstein proved more fruitful. Rubenstein, participating via speakerphone, took exception to what he called the "either/or" character of the letter, which seemed to advocate replacing all H-1B visas with green cards. That position, he argued, was "not feasible technically or politically," because Congress was unwilling to do more than simply increase the number of H-1B visas and because some workers didn't want green cards anyway. Morrison agreed that the green-card proponents needed to adopt a "both/and" rather than an "either/or" approach. That removed one major area of disagreement.
Donnelly tried to pressure Rubenstein to agree in principle that the government should offer green cards to those H-1Bs who wanted them. Rubenstein initially refused to take a position. "Paul, you are politicking me," he said. "The question is what is feasible, either technically or politically." But when Morrison, Dyson, and author-entrepreneur Simson Garfinkel pressed him, Rubenstein finally said, "I am pro-green card ... but you take victories you get on an incremental basis. If the business coalition is successful in increasing H-1B, I would immediately advocate fixing the program." Then he added, "The way forward would be to flesh out what this alternative green-card proposal is. Congress doesn't look well upon radical changes unless one fleshes out the proposal and looks at the complexity." Even the AILA lawyers had to agree. Swapp said that a bill allowing H-1B workers to become permanent residents would be "an outstanding proposal."
There is little chance anything like that will happen this year. Congress and the business lobby are single-mindedly bent on raising the cap on H-1Bs. But the meeting here showed that if the issue is reframed--around not whether to admit high-tech workers but on what terms to admit them--people must eventually concede that green cards are better than H-1B visas. If Donnelly, a pro-immigration IEEE, and the high-tech liberals can construct such a proposal, it will offer a powerful alternative to both the nativists and the businesses looking for docile nomads. And it will help immigration supporters rediscover the moral basis for their position: that America is enhanced not simply by importing efficient labor but by importing Americans.