OMEN
01-27-2009, 09:45 AM
No legal obligation to keep U.S. workers over visa holders in layoff, says attorney
Microsoft Corp. says it is cutting a "significant number" of foreign workers as part of the layoff of 1,400 employees last week, a number that is due to reach 5,000 over the next 18 months.
The company isn't detailing how many of the the workers losing their jobs are in the U.S. on a visa, however.
Microsoft has been urged by Sen. Charles Grassley's (R-Iowa), a leading critic of the H-1B program, to protect the jobs of U.S. workers over foreign workers. In a letter last week to Microsoft CEO Steve Ballmer, Grassley demanded that U.S. workers get priority in keeping their jobs.
But there is nothing in the law that requires a company to cut the jobs of H-1B workers before U.S. workers, say experts. David Kussin, an immigration attorney at Pillsbury Winthrop Shaw Pittman LLP., said, "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."
Grassley appears to acknowledge that fact in his letter to Ballmer, arguing that the company has a "moral obligation" to protect U.S. workers. He did not write of a legal obligation.
Microsoft will not disclose the number of H-1B workers on its payroll and it is hard to get a complete picture on any company's visa use from the U.S. Citizenship and Immigration Service, but Microsoft is considered a leading H-1B employer.
From available department data, in two years alone, 2006 and 2007, it received approval for nearly 2,300 visas. Microsoft has hired foreign workers under the H-1B program, which has been used heavily by technology companies since the 1990s, in previous years.
The Washington Alliance of Technology Workers, or WashTech, a labor group based in Seattle, says it is trying to determine how many foreign workers are being affected by the layoffs. "I know this is a secret they will try very hard to keep," said Priyanka Joshi, a spokeswoman for WashTech.
Citing an an Indian press report that says Microsoft is not laying off employees at its India operations, Joshi said the move to lay off workers in the U.S. and not overseas "is completely unfair." A Microsoft representative could not be reached immediately to confirm those accounts.
Microsoft spokesman Lou Gellos said in a statement that the jobs cuts were "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," Gellos said in the statement.
He said the firm recognizes "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," Gellos said.
Indeed, H-1B visa holders who are laid off face some difficult decisions. As soon as the employee looses his or her job, technically, "you are no longer eligible to be in the United States," said attorney Kussin.
In practice, unemployed H-1B works may have a little bit of grace period, possibly as long as 60 days, to find another job. The worker may have other visa options, such as student visa for an advance degree. A visitors visa is also possible, provided the applicant can demonstrate having sufficient funds to support themselves, say immigration attorneys.
But even if an H-1B worker is forced to return to their home country after a layoff, they still have the option to return to the U.S. if new work becomes available, said Sarah Hawk, an immigration attorney with the Global Immigration Practice Group.
For instance, if an H-1B worker has been in the U.S. for two years on a six-year visa, that person can take advantage of the remaining time on their visa to return to the U.S. to take a job, since they have already been counted under a prior year visa quota, Hawk said.
H-1B critics aren't expecting Microsoft, or any other company, to cut foreign workers first, but in Microsoft's layoffs they see a clear foil to Microsoft Chairman Bill Gates's arguments that foreign workers are needed to supplement the tech industry's labor pool.
Gates has urged Congress to eliminate the visa cap, now set at 65,000 plus 20,000 for advance degree holders of U.S. universities.
Norman Matloff, a professor of computer science at the University of California at Davis, and leading critic of the H-1B program, sees great benefits for opponents of the visas in Grassley's letter.
"If Microsoft doesn't state that they will lay off the H-1Bs first -- and they won't state this -- then it would be awfully tough for Bill Gates to come back to the Hill and urge an H-1B increase, wouldn't it?" said Matloff. "In fact, Microsoft's refusal to lay off H-1Bs first would weaken the effect of Gates' previous testimony."
Compworld
Microsoft Corp. says it is cutting a "significant number" of foreign workers as part of the layoff of 1,400 employees last week, a number that is due to reach 5,000 over the next 18 months.
The company isn't detailing how many of the the workers losing their jobs are in the U.S. on a visa, however.
Microsoft has been urged by Sen. Charles Grassley's (R-Iowa), a leading critic of the H-1B program, to protect the jobs of U.S. workers over foreign workers. In a letter last week to Microsoft CEO Steve Ballmer, Grassley demanded that U.S. workers get priority in keeping their jobs.
But there is nothing in the law that requires a company to cut the jobs of H-1B workers before U.S. workers, say experts. David Kussin, an immigration attorney at Pillsbury Winthrop Shaw Pittman LLP., said, "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."
Grassley appears to acknowledge that fact in his letter to Ballmer, arguing that the company has a "moral obligation" to protect U.S. workers. He did not write of a legal obligation.
Microsoft will not disclose the number of H-1B workers on its payroll and it is hard to get a complete picture on any company's visa use from the U.S. Citizenship and Immigration Service, but Microsoft is considered a leading H-1B employer.
From available department data, in two years alone, 2006 and 2007, it received approval for nearly 2,300 visas. Microsoft has hired foreign workers under the H-1B program, which has been used heavily by technology companies since the 1990s, in previous years.
The Washington Alliance of Technology Workers, or WashTech, a labor group based in Seattle, says it is trying to determine how many foreign workers are being affected by the layoffs. "I know this is a secret they will try very hard to keep," said Priyanka Joshi, a spokeswoman for WashTech.
Citing an an Indian press report that says Microsoft is not laying off employees at its India operations, Joshi said the move to lay off workers in the U.S. and not overseas "is completely unfair." A Microsoft representative could not be reached immediately to confirm those accounts.
Microsoft spokesman Lou Gellos said in a statement that the jobs cuts were "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," Gellos said in the statement.
He said the firm recognizes "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," Gellos said.
Indeed, H-1B visa holders who are laid off face some difficult decisions. As soon as the employee looses his or her job, technically, "you are no longer eligible to be in the United States," said attorney Kussin.
In practice, unemployed H-1B works may have a little bit of grace period, possibly as long as 60 days, to find another job. The worker may have other visa options, such as student visa for an advance degree. A visitors visa is also possible, provided the applicant can demonstrate having sufficient funds to support themselves, say immigration attorneys.
But even if an H-1B worker is forced to return to their home country after a layoff, they still have the option to return to the U.S. if new work becomes available, said Sarah Hawk, an immigration attorney with the Global Immigration Practice Group.
For instance, if an H-1B worker has been in the U.S. for two years on a six-year visa, that person can take advantage of the remaining time on their visa to return to the U.S. to take a job, since they have already been counted under a prior year visa quota, Hawk said.
H-1B critics aren't expecting Microsoft, or any other company, to cut foreign workers first, but in Microsoft's layoffs they see a clear foil to Microsoft Chairman Bill Gates's arguments that foreign workers are needed to supplement the tech industry's labor pool.
Gates has urged Congress to eliminate the visa cap, now set at 65,000 plus 20,000 for advance degree holders of U.S. universities.
Norman Matloff, a professor of computer science at the University of California at Davis, and leading critic of the H-1B program, sees great benefits for opponents of the visas in Grassley's letter.
"If Microsoft doesn't state that they will lay off the H-1Bs first -- and they won't state this -- then it would be awfully tough for Bill Gates to come back to the Hill and urge an H-1B increase, wouldn't it?" said Matloff. "In fact, Microsoft's refusal to lay off H-1Bs first would weaken the effect of Gates' previous testimony."
Compworld