Microsoft Layoff Sparks H-1B Debate

Layoff announcements by IT vendors came fast and furious over the past two weeks. But it was Microsoft Corp.'s that drew the attention of a U.S. senator, who said it was "imperative" that the company give job priority to U.S. citizens over foreigners with H-1B visas.

"Microsoft has a moral obligation to protect ... American workers by putting them first during these difficult economic times," Sen. Charles Grassley (R-Iowa) wrote in a letter to Microsoft CEO Steve Ballmer on Jan. 22.

Grassley, a vocal critic of the H-1B program, could have sent the letter to any of the vendors laying off employees -- or to corporations with H-1B workers on their IT staffs. He likely singled out Microsoft because its chairman, Bill Gates, has called for an increase in the annual cap on visas during congressional hearings.

Microsoft, which plans to cut up to 5,000 employees over the next 18 months, said last week that a "significant number" of the first 1,400 people being let go are foreign workers who are in the U.S. on visas.

The software vendor wouldn't be more specific, though. And despite Grassley's demands, there are no federal laws that require companies to lay off H-1B holders before U.S. workers.

"In fact, the law is very well designed to say that you have to treat H-1Bs the same as U.S. citizens in all regards," said David Kussin, an immigration attorney at Pillsbury Winthrop Shaw Pittman LLP in New York.

Even Grassley appeared to acknowledge that point in his letter to Ballmer, when he wrote about Microsoft's "moral obligation." He didn't describe protecting U.S. workers as a legal requirement.

Microsoft won't disclose the number of H-1B workers on its payroll, and it's hard to get a complete picture of any company's visa use from the U.S. Citizenship and Immigration Services.

But the software vendor is considered to be one of the leading H-1B employers. For instance, according to USCIS data, Microsoft received approval for a total of nearly 2,300 visas for the federal government's 2006 and 2007 fiscal years.

In the statement that Microsoft released in response to Grassley's letter, the company noted that there is a "human impact" for all workers who are laid off, including H-1B holders.

"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," Microsoft said.

Indeed, visa holders whose jobs are eliminated face some difficult decisions. Kussin said that as soon as H-1B workers lose their jobs, they technically "are no longer eligible to be in the United States."

In practice, newly unemployed H-1B workers may have a grace period, possibly as long as 60 days, to try to find another job. They also may be able to obtain a visitor's visa, provided they can show that they have sufficient funds to support themselves, according to immigration attorneys.

And even if an H-1B holder is forced to return to his home country after a layoff, he could still come back to the U.S. on his existing visa if new work becomes available before it expires, said Sarah Hawk, an attorney in the global immigration practice group at Fisher & Phillips LLP in Atlanta.

The Washington Alliance of Technology Workers, a Seattle-based union known as WashTech, is trying to determine how many H-1B workers are being affected by the layoffs at Microsoft. But, WashTech spokeswoman Priyanka Joshi said, "I know this is a secret they will try very hard to keep."

H-1B critics don't expect Microsoft, or any other company, to exclusively cut foreign guest workers before letting Americans go. But they see the ongoing layoffs as a clear rebuttal to the argument that more H-1B visas are needed to supplement the U.S. tech labor pool.

"If Microsoft doesn't state that they will lay off the H-1Bs first -- and they won't -- then it would be awfully tough for Bill Gates to come back to the Hill and urge an H-1B increase," said Norman Matloff, a computer science professor at the University of California, Davis.

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