A Day That Shall Live in Infamy

Two years ago today, November 4, I was laid off from Microsoft. I subsequently discovered that corporations have abused the foreign worker visa system in order to replace US workers with foreign workers.

The following letter is being sent to Senators Chuck Grassley (R-IA) and Dick Durbin (D-IL), and will subsequently be sent to several lawmakers across the country who are involved with commerce and immigration issues.

It is not my intention to make a political statement here. I removed political content from this blog over a year ago, as I wanted this to be a venue to focus inwardly, to contemplate culture and life. However, this issue has become very important to me and I've spent many evenings researching the issue. People who know me know that I'm not a xenophobe. I will therefore not justify myself with the usual bowing and scraping about not being a bigot and so forth. However, as I point out in the letter, I've been a free trade, free immigration advocate. And it's because I've been welcoming to other cultures that I feel all the more betrayed by these corrupt and cynical abuses.

Enough is enough.

11-04-2011

The Honorable Charles Grassley
The Honorable Richard Durbin
United State Senate
Washington, DC 20510

Donn Trenton
88 Wolf Creek Road
Winthrop WA 98862

Dear Senators Grassley and Durbin,

I'm writing today first to thank you for the work you've already done on the issue of visa abuse, particularly on the Durbin-Grassley H-1B and L-1 Visa Reform Act of 2009 (S.887), and to encourage you to continue giving it as much attention as possible in this time of urgent budgetary issues. I would also like to bring to your attention some aspects of the issue that I’ve observed.

It’s probably no surprise to you that the foreign worker visa system comprising H-1B, L-1, B-1, and other visas, has a high level of abuse. For over two decades I’ve worked with many professionals from other countries, whom I’ve found to be honest and intelligent people, and some of whom are personal friends. I supported the H-1B program because I believed it to be an implementation of controlled immigration that brought exceptional workers to the US.

I’ve found, however, that it has become a Trojan Horse for foreign corporations to take over entire business functions (such as software testing) and replace them wholesale with their own employees. The practice of US companies to cut their bottom line by outsourcing certain functions to other countries, or to bring in foreign workers at cheaper wages is debatable, if controversial. But that paints only half the picture.

Foreign corporations, with the aid of their governments, are waging an aggressive campaign on our economy to take over market share by corrupting the legal framework of US immigration and employment law. This campaign is waged under the rubric of "insourcing."

In countries such as India and China, the distinction between large conglomerates and government functions is virtually indistinct. These large corporations have very close relationships with their governments, which lend them special support and favored treatment. The most obvious of such support is the the Indian and Chinese governments’ lobbying of our government to expand the professional visa program.

Indian corporations must be identified as the primary agents in the insourcing campaign. In recent years, 80% of H-1B visas granted have gone to India-based outsourcing firms. Employees of these firms enter the US workforce and study how their respective businesses operate. Many persuade their US business contacts to outsource the rest of their department's work to India, or even more attractively, have their consulting company pitch an offer to provide an entire team of foreign visa workers to replace the current team at a far lower overall cost of operations--lower wages, and virtually no benefits overhead. Doing so using H1-B visas skirts legality and certainly violates the intent of the program. Doing so using B-1 visas is clearly illegal, and some foreign consulting firms have been caught red-handed at it.

Once one company significantly cuts their bottom line by insourcing, other companies compete by following suit. In the present ongoing recession, we’ve seen a chain reaction of companies resorting to this practice.

Worse, this legal and ethical shortcut tempts US executives to eliminate entire teams of US citizens, through elaborately planned management methods, euphemistically called reductions in force, redundancies, forced rankings, etc. Further, it is well known in the industry that some Indian executives simply make a deliberate effort to hire their own countrymen into their organization.

I’ve always supported the right of companies to hire and fire according to their business needs; however, the wholesale replacement of US workers is unethical, and the practice of "body shopping" pushes right through the ethical envelope into illegality. Consulting firms known as "body shops" apply for as many visas as possible, often falsifying the credentials of the workers whom they sponsor. Once they obtain a visa, they shop out the worker to other recruiting firms, to fill job descriptions that do not necessarily match that stated on their visa. Indeed, in some respects, the workers are chattel. If they complain, are resistant to an assignment, or step out of line in any respect, they can have their visa yanked and be sent back to their home country with no recourse.

My personal experience at Microsoft has confirmed everything that I've read about the system. I was a 13-year veteran with a solid record who was laid off along with 5800 other employees in 2009. As I mentioned, I appreciated working with talented people from around the world, and I supported the visa system. When I returned as a contractor in 2010, I saw that the demographic of the company had changed noticeably. Entire test teams were Indian nationals working for India-based consulting firms. It is not difficult to identify employees and the company through which they contract, as this information is readily available in the Outlook global address book.

It’s well known at Microsoft that certain groups have inordinately high rates of hire of Indian nationals. By my count, in one product group, over 35% of the team members were East Indian--considerably more than just one year before. East Asians comprised 12.5%, about the usual level at Microsoft. Like many other prominent high-tech companies, Microsoft has a much-touted Diversity program that’s supposed to encourage, well, diversity--and a strict anti-discrimination policy. Normally, were a manager to hire an entire team based on nationality or ethnicity, HR would have investigated and reprimanded that manager. But neither HR nor Diversity have raised any concerns about what appears to be a consistent pattern of preferential hiring.

In the past I’ve requested demographic data from Diversity to see how Microsoft compares to the population at large. Diversity replied that the company does not disclose its workforce demographics, nor its metrics or criteria for achieving diversity goals. I cannot help but wonder if “Diversity” teams in other high-tech companies are similarly used as window dressers to provide cover for questionable hiring practices.

Just as disturbing, however, is how the Indian-owned/managed recruiters have been cutting in front of local established recruiting firms--through their contacts within companies, the use of "Minority Owned Business" certifications, and "Preferred Vendor" status. These designations afford them protective cover and special consideration, since companies are under pressure to farm out business to minority-owned companies. It seems a cynical misuse of such certifications, meant to give a boost to traditionally underrepresented or disadvantaged groups of US citizens. Indian recruiters are aggressive, and some will exaggerate or misrepresent job descriptions to lure candidates away from local consulting firms.

Knowing this, it’s hard not to conclude that there is an ongoing coordinated campaign of foreign corporations and government to take advantage of our visa system to grab a huge share of our job market. This was never the intention of the professional/academic visa system, which was to bring in people so exceptional that a replacement couldn’t be found in the domestic labor pool. This violates at least the spirit of the law.

The Indian Chambers of Commerce have anticipated the backlash against outsourcing and incourcing and have outlined a strategy to lobby the Indian Government to push for relaxation of US visa requirements. Please urge Congress to resist these PR efforts.

I encourage you to reintroduce your H-1B and L-1 visa reform bill (S.887), which would effect much needed visa reform. I would make the following suggestions:

·         I strongly suggest that you strengthen the prohibition against displacing US workers. Sec.113. Waiver Requirements would amend the Immigration and Nationality Act to require an employer to establish that an H-1B worker "has not displaced, and does not intend to displace, a United States worker employed by the employer within the period beginning 180 days before and ending 180 days after the date of the placement of the nonimmigrant with the employer." I suggest adding a positive prohibition to the following effect:

Any corporation doing business in the US that lays off more than 50 US-based employees in a fiscal year may not sponsor, invite, or hire any foreign visa workers until one year after the date of the last layoff.

The number can be indexed to the size of the company; the point is to provide a strong disincentive to companies against hiring visa workers rather than domestic workers shortly after layoffs.

·         Propose a temporary moratorium or limitation of the H-1B and other visa programs, allowing current visa holders to stay the length of their term, until Congress has investigated and considered how to reform the visa system.

·         Revise the visa lottery system so that no one country can obtain more than 50% of the visas granted for the year.

·         Remove the provision that DOL could initiate investigations without a complaint and without the Labor Secretary’s personal authorization. This is my only disagreement with your bill, as it might give the DOL too much latitude and encourage overzealous investigations.

Once again, I would like to thank you for all your efforts to protect the integrity of our visa system and the rights of US citizens.

Sincerely,

Donn Trenton

Donn Trenton