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Silicon standoff

Tech companies are set to battle Washington over visas for foreign workers

Tech companies race to defend H-1B visas as Republicans and Democrats threaten them

American tech companies are gearing up to protect the thousands of workers they rely on who aren’t U.S. citizens and don’t have green cards. 

Silicon Valley has aggressively backed legislation to protect and expand the H-1B program for temporary workers, but President Trump appears to have other ideas. He is reportedly preparing to sign a new immigration-related executive order that includes an effort to overhaul the H-1B visa program, putting in place protectionist rules that would upend the way Silicon Valley recruits talent.

Tech leaders have been warning of a “brain drain” since Election Day — and now there’s talk of companies moving employees to Canada.

A leaked draft of the executive order disseminated by Vox featured vague wording, calling for plans to “alter” the H-1B visa program, although experts point out that such changes would require an act of Congress. The draft order also discusses reforming programs that allow foreign students into the U.S. — since they pay full price, they’re an important source of tuition dollars for top-flight public universities — before then entering the American workforce.

A spokesperson for the United States Citizenship and Immigration Services, which is part of the Department of Homeland Security, said that USCIS does not comment on pending legislation or executive actions.

Designed as a temporary visa for skilled workers, the H-1B became a way for corporate America to bring in highly skilled foreigners without having to tackle the permanent resident program — i.e., green cards, which are capped by country of origin, a rule that disproportionately affects places like China and India. When the program was introduced in 1990, about 800 H-1Bs were issued. By 2014, that number had grown to more than 160,000.

Both Republicans and Democrats are now pushing for reform of the program, ostensibly in order to protect U.S. workers.

GOP opposition to the H-1B in particular has been mounting for some time, but Republican politicians have generally been wary of either stifling some of America’s most successful companies or taking on immigration reform and infuriating the party’s anti-immigration base. Not all Republican politicians, however; in 2015, Alabama Sen. Jeff Sessions — Trump’s nominee for Attorney General — introduced bipartisan legislation aimed at curtailing the number of visas given out.

A recent bipartisan effort to tackle the issue took the form of a Senate bill introduced by Iowa Republican Chuck Grassley and Illinois Democrat Dick Durbin that aimed to reform the program by creating higher salary floors for H-1B visas and making sure U.S. workers are given first dibs on potential H-1B jobs.

Two of Trump’s top advisers who reportedly crafted the refugee ban — ex-Breitbart CEO Steve Bannon and former Sessions adviser Stephen Miller — have also taken aim at Silicon Valley in the past. Earlier in January, Miller is said to have proposed both completely scrapping the lottery system used to award H-1B visas and increasing the minimum salary companies must pay visa holders in order to prevent the undercutting of more expensive American labor. Before Bannon was tapped as Trump’s campaign chief, he suggested in a 2015 interview with Trump that “when two-thirds or three-quarters of the CEOs in Silicon Valley are from South Asia or from Asia,” it could undermine “civic society.”

Silicon Valley says in no uncertain terms that its success is due in part to its meritocratic embrace of anybody from anywhere who has the talent to compete. As Google CEO Sundar Pichai, who emigrated to the U.S. from India, told columnist Walt Mossberg, “In Silicon Valley, being an immigrant doesn’t matter. It’s the ideas that matter. We are able to build products for everyone because we attract talent from around the world.”

Other executives have been more direct about their economic concerns. Blake Irving, CEO of the domain-hosting service GoDaddy, wrote in a widely shared LinkedIn post that the leaked draft order “risks serious consequences for U.S.-based tech companies’ ability to hire elite global talent.”

Neil Ruiz, who has researched H-1B visas extensively and currently serves as the executive director of the Center for Law, Economics, and Finance at George Washington University Law School, agreed that “tech relies heavily on H-1B and foreign workers,” but he points out another wrinkle.

“The tension is also that you have [foreign] outsourcing companies,” Ruiz said. “And the heart of the problem is not what Bannon is identifying but the Indian IT companies that rely heavily on H-1B that provide services to corporate America.”

The companies in India to which Ruiz is referring — Infosys, Wipro, and others — are almost certainly the ones with the most to lose from any curtailing of H-1Bs. That’s because they supply U.S. tech companies with Indian tech talent who would have trouble getting green cards. The stock values of Indian outsourcing firms lost $7 billion in a single hour of trading on Tuesday after reports surfaced that a Trump executive order was looming.

American companies dealing with outsourcing firms in turn save money on labor costs. Daniel Costa, who researches immigration law and policy at the left-leaning Economic Policy Institute, calls H-1B visas a “useful tool for corporate exploitation.”

Costa pointed to a lawsuit from last year in which former Disney IT workers accused the company of maneuvering to replace them with cheaper, temporary immigrant labor. The former employees alleged that the company told them they would have to train their replacements — and keep quiet about it, or risk not getting unemployment benefits. A federal judge threw out the case last October.

The tech industry’s opposition to Trump’s immigration policies encompasses more than just H-1Bs. FWD.us, an immigration advocacy group affiliated with the tech industry, is now advocating for the 750,000 “Dreamers” who came to the U.S. as kids, and whom President Obama afforded protection under the Deferred Action for Childhood Arrivals policy in 2012.

“We want to be clear that we need a balanced high-skilled immigration system that will attract the best and brightest from around the world in order to boost innovation, create jobs for native-born workers, and strengthen the American middle class,” FWD.us spokesperson Leezia Dhalla said recently in a statement.

Amazon, Apple, and other Silicon Valley heavies are reportedly circulating an open letter criticizing Trump’s refugee ban and offering “to help achieve immigration policies that both support the work of American businesses and reflect American values.” On Thursday, Microsoft said that it had asked the Trump White House for professional and medical exemptions to the ban on immigration and visas from specific Muslim-majority countries.

“The goal that I think Trump has to balance is whether he wants more jobs here, and how do we keep the companies?” Ruiz said. “Tech says they are going move to Canada, and start operations there to get the foreign workers they need — what does that mean for American workers?”

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