Feinstein's Rule

Senator Dianne Feinstein has never been shy about
grabbing hot-button law-and-order issues. So it was hardly surprising in the days
after September 11 to see the California Democrat leading the charge for tougher
visa restrictions and other controls on foreigners in the United States. As she
pointed out, most of the plane hijackers who crashed into the World Trade Center
and the Pentagon had been in this country legally.

Feinstein proposed a six-month moratorium on all student visas. After
heated opposition from university presidents, whose institutions crave
foreign-student tuition, the idea was quietly dropped. But it was soon succeeded
by a sweeping Feinstein bill, co-sponsored by Republican Senator John Kyl of
Arizona, that would require tougher screening of all visa applicants, mandate
better federal tracking of foreign visitors, require a background check before
issuing any student visa, and block all student visas to individuals from
countries that the State Department deems sponsors of terrorism.

Conspicuous by its absence was any revision of the dubious H-1B visa program,
a Feinstein favorite. In theory, these special visas, now totaling nearly a
million, go to foreign high-tech workers in electronics and similar industries.
Feinstein--like her fellow California Democrats Senator Barbara Boxer and
Congresswoman Zoe Lofgren--has zealously supported them. Under the H-1B program,
American companies (and some non-American ones) can bring in foreign engineers,
programmers, and other techies for jobs that they claim can't be filled by U.S.

In October 2000, even as the dot-coms were failing at eye-opening speeds and
the sinking Nasdaq was giving the words "Silicon Valley" an entirely new meaning,
Congress rushed through a bill that raised the annual number of H-1Bs from
115,000 (itself up from 65,000 in 1998) to 195,000. With renewals, the visa is
good for six years.

To be sure, Feinstein isn't solely responsible. Silicon Valley, led by TechNet
and other industry groups, has become a master at intense, bipartisan lobbying.
The industry spent an estimated $8 million in "soft money" in the past year
alone. The Senate--where Spencer Abraham, now George W. Bush's secretary of
energy, got $43,000, and Senator Orrin Hatch of Utah received $36,000--passed the
bill 96 to 1. The House, where some 350 members collected an average of $5,000 in
high-tech contributions, approved the bill by voice vote in the middle of the

The professed rationale was that things were desperate: The industry claimed
that it simply couldn't find enough people who knew the coding or the software.
Without the bill, said the Information Technology Association of America, 850,000
jobs would go unfilled. Oddly, many high-tech companies--those that weren't
failing altogether--were already laying off thousands of people.

Even in good times, were employers really that
strapped? Or were
they simply trying to cut costs by hiring people from India, China, or Pakistan
to work for $40,000 in place of Americans who had earned $55,000 or $60,000--and
thereby giving themselves the muscle to squeeze both kinds of employees? H-1B
workers are eager for U.S. jobs that pay three times what similar jobs pay at
home. But they are subject to deportation if they're fired and are vulnerable to
exploitation in a number of other ways that, together, create a system
approaching indentured servitude. Many are employed by "body shops"--so-called
consultancies, the biggest of them foreign owned, that operate roughly like the
coyotes who supply Mexican farmworkers to agricultural employers ("outsourcing"
them to software companies when there's work and "benching" them at low wages
when there's not). "If they complain," a veteran (unemployed) software engineer
told me, "they're reminded that if they don't like how they're treated, there's
plenty more--in India or Taiwan--where they came from."

The contention that there's a real shortage of American techies was
debunked long before high-tech began to tank. Before the recession, said Norman
Matloff, a professor of computer science at the University of California at Davis
and a longtime critic of H-1B, only 2 percent of the experienced software
engineers who applied for jobs were hired. Many never even got interviews. "If
employers were so desperate to hire," Matloff said, "they couldn't afford to be
so picky." There appears to be endemic ageism in the industry: Even applicants in
their forties are not just too expensive, but too old.

Rob Sanchez, an Arizona engineer who runs the only reliable database in the
field (www.zazona.com/ShameH1B/),
estimates on the basis of federal immigration
records that after the recent layoffs, there are still as many as one million
H-1B visa holders in this country: more than 700 at Hewlett Packard and hundreds
of others at scores of companies--including Microsoft, Motorola, Lucent, and
Oracle--as well as those countless body shops. Thousands work on university
campuses and at federal laboratories, including the Lawrence Livermore nuclear
lab that the University of California runs for the U.S. Department of Energy. (It
might interest Feinstein that two Chinese H-1Bs at Lucent were arrested and
charged with industrial espionage earlier this year.) But because the feds don't
track them, nobody really knows how many H-1Bs are in this country or how the
recent layoffs have hit American high-tech workers versus foreign ones.

With the exception of a few overmatched organizations like the Programmers'
Guild and established anti-immigration groups, there's little organized
opposition to the H-1B program. On the contrary, last March, as the dot-coms sank
deeper into recession, the generally sober Committee for Economic Development
called for further liberalization.

As the economy continues to deteriorate, the events of September 11 could well
fuel another round of anti-immigrant backlash. Like Feinstein's bill, President
Bush's quick abandonment of his fuzzy proposal to regularize the status of all
illegal Mexican aliens provides ample evidence of that. Such backlash would be
deplorable, as it always is. But even at full employment and before September 11,
there never was much justification for a foreign-worker program as huge as H-1B.
There's even less now.

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