Will New Congress Move On H-1B & Tech Issues? - InformationWeek

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Government // Open Government
11:06 AM
David Ransom
David Ransom

Will New Congress Move On H-1B & Tech Issues?

High-stakes bills that directly affect the tech sector in three areas -- H-1B, digital copyright, and anti-patent-troll legislation -- are stalled in Congress. But what if the Senate changes hands?

The easiest -- and safest -- prognostication that any pundit (or lobbyist) can make about the possibility of a particular piece of legislation clearing the United States Congress is something like this: "No, there's very little chance that the Congress will act on that. Congress can't seem to get anything done these days."

The reality, of course, is that this is an easy and safe prediction because, statistically speaking, the odds are high that nothing actually will happen on a particular piece of legislation, unless it is in response to a national calamity or crisis that requires members of the two major political parties to cast aside partisanship and come together in consensus.

This same dark forecast can be applied to three matters that are priorities to the technology industry: expansion of the H-1B visa program, enactment of new digital copyright rules, and passage of anti-patent-troll legislation.

[Want to learn how lessons learned on the campaign trail translate to business? See Obama 2012 CTO: From Campaign To Enterprise.]

Let's assume that Republicans regain the Senate majority in Tuesday's midterm elections (a prediction that many political pros are making, even though which party ultimately controls the Senate majority may not be known until December or even January if there are run-offs in the Louisiana and Georgia Senate races), and slightly expand their House majority.

Let's assume further that Sen. Mitch McConnell (R-Ky.) wins a tough re-election and becomes Senate majority leader, and Sen. Chuck Grassley (R-Iowa) becomes chairman of the Senate Judiciary Committee, which would have jurisdiction over each of these issues. What are the odds of movement?

1. H-1B Visas
Would a Republican Senate majority fundamentally alter the political landscape in 2015 in regard to consideration of comprehensive immigration reform, of which expanding the H-1B visa program could be an important component? The conventional wisdom, and I think the correct conclusion, is no. Comprehensive immigration reform will continue to be exceedingly elusive and unlikely if there are Republican majorities in both the Senate and House.

There are a variety of reasons for this, but two principal ones. First, Republican members of Congress themselves continue to be very much divided on immigration reform overall. Recall that most House Republicans derided the Senate immigration reform legislation as providing "amnesty for illegal immigrants," even though that legislation would not have passed without Senate Republican votes. Just two weeks ago, Sen. Ted Cruz (R-Texas) wrote in USA Today that Republicans should adopt a hard line. And, every Republican member of Congress knows that he or she could face a primary challenge from the right -- many believe that former House majority leader Eric Cantor (R-Va.) lost his Republican primary at least in part to perceived moderation on immigration reform.

Additionally, the political calendar weighs against immigration reform. A little over one year from now, the major parties' presidential aspirants will have begun campaigning in earnest in Iowa and New Hampshire. That leaves a narrow window before the Congressional calendar gets overtaken by the presidential race.

What then does mean for possible expansion of H-1B visas? Prospects for H-1B visa legislation are less dire than reform overall, but still uncertain in 2015. Many Republicans and Democrats support expansion of the program. In November 2012, the House passed the STEM Jobs Act by a vote of 245-139. But the White House said it opposed that measure because President Obama sought comprehensive immigration reform, not what it called "narrowly tailored" reforms.

Further, Sen. Grassley, who likely will become Judiciary Committee chair if Republicans regain the Senate majority, has expressed serious concerns about efforts to expand the program. More recently, Grassley was upset by statements that the President planned to implement H-1B reforms through executive action after the midterm elections. If the President follows through on his plan, you can expect Senate Republicans to become further inflamed and opposed to such executive action.

2. Digital Copyrights
While practically every member of Congress has a position on immigration reform/H-1B visas, few have staked out views on consideration of new digital copyright rules even though Rep. Bob Goodlatte (R-Va.), chairman of the House Judiciary Committee, has focused a great deal of attention on copyright reform in the current Congress. While Goodlatte has held no less than 10 hearings on different aspects of the topic, his Senate counterpart, Judiciary Committee Chairman Patrick Leahy (D-Vt.), has focused the Committee's resources elsewhere.

If Republicans regain the Senate majority, Sen. Grassley would become Judiciary Committee chair, and it is unclear whether this issue would be a top-line priority. Without question, though, copyright reform (just like patent reform) is an issue that the Congress has a hard time digesting. The problem is complex, and the potential for unintended consequences is great. Given the Senate's focus on other issues, it seems more likely than not that copyright reform will not be a major legislative priority in 2015, no matter which party controls the Senate. More work likely will be done in committee.

3. Patent Trolls
The one issue that may well be resuscitated if Republicans regain the Senate majority is legislation designed to crack down on patent trolls. There is House legislation directed at this matter, the Innovation Act, passed in December 2013 on a 325-91 vote. But the legislation stalled in the Senate after Judiciary Committee Chairman Leahy said stakeholders could not reach consensus.

Sen. Grassley spoke out in favor of the Senate companion legislation, the "Patent Transparency and Improvements Act," at a hearing in 2013, stating: "We should pass effective legislation to curtail abuses of the legal system."

Given the bipartisan vote in the House and White House support for the House bill, it should surprise no one if Chairman Grassley and Senate Republicans push this legislation if they regain the majority. The fact that this bill is opposed by some lawyers' groups will only entice Republicans further.

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David Ransom is a Partner in the law firm of McDermott Will & Emery LLP and is based in the firm's Washington, D.C., office. He focuses his practice on regulatory and government affairs, representing clients before Congress and federal regulatory agencies on a wide range of ... View Full Bio
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User Rank: Ninja
11/9/2014 | 6:03:53 PM
Re: patent dissembling
I agree to what you said about innovation, in that it requires an incubation period. In the long run, it is important to protect the economy and not deliver double blows to it. If businesses do not have access to labor at a rate which is on par with global standards then, a business cannot remain competitive in a global economy and if, patents are only enforceable at home and not elsewhere, I don't see any revenue flowing inwards.

Innovation requires protection, either this protection can be provided to it by the government, this will cost capital as taxes will need to be collected to employ trained staff to deal with complex patents and other costs, etc., (in directly the economy is providing the protection) or, protection can be built into the system directly. I am thinking about the open source model.
User Rank: Ninja
11/9/2014 | 5:38:23 PM
Re: Resolution
It is the long term planning that is of greater importance than, short term planning. Imagine a situation where a free trade agreement is signed with the EU without first strengthening the competitiveness of the local labor force, strengthening digital property rights and stopping players for misusing property rights -- causing economic loses.

Alternatively, no free trade agreements could be signed and neighboring states, such as Canada (that already have NAFTA and CETA) can continue improving their economy.
User Rank: Apprentice
11/9/2014 | 4:31:27 PM
Re: Resolution
Wrong on all counts. We need to not only shut down the H-1B program, but also send home most of those who are here.
User Rank: Strategist
11/5/2014 | 5:44:39 PM
Re: H1-B is an Attempt to Bring Back Slavery
Expand H-1Bs?  Are you kidding?  How about hiring Americans for a change?
User Rank: Apprentice
11/5/2014 | 4:26:25 PM
Re: H1-B is an Attempt to Bring Back Slavery
I agree with you, except the H-1B "slavery" system has existed since 1990. :-( Millions of work visas have already been issued.  "Unlimited H-1B Visas" is what Bill Gates demanded on April 27, 2005, among other dates. Economic elites demand absurd expansions in immigration numbers as a form of "share bargaining," while the goal is to protect the (already bloated) status quo.

Free-market advocate and Nobel economics laureate Milton Friedman identified the controversial H-1B Visa program as a "government subsidy" in a 2002 article. Friedman noted that the program allows employers to obtain higher-skilled labor for below market wages. Furthermore, Kamal Nath, Commerce Minister of India accurately labeled the H-1B Visa the "outsourcing visa" in an April 15, 2007 New York Times article.

To learn more about the myriad harms of the H-1b Visa program, search by title for the PDF version of the 2014 article, "The Greedy Gates Immigration Gambit." Additional background is found in the 2007 article with the same title.  The best thing for the broad swath of the American middle class harmed by this program would be to demand immediate termination of this harmful program. (It was supposed to have been terminated circa 1992.)
User Rank: Apprentice
11/5/2014 | 1:03:25 PM
H1-B is an Attempt to Bring Back Slavery
Anyone who is in favor of H1-B is an enemy of the Untied States.


This program is the largest immigration fraud in American history.


User Rank: Apprentice
11/5/2014 | 11:04:19 AM
patent dissembling
'legislation designed to crack down on patent trolls'

plain English translation: legislation designed to allow large campaign contributors to rob and destroy their small competitors

Can you say 'dissemble'? Just because they call it patent "reform" doesn't mean it is.

Property rights and jobs in America are now hanging from a frayed thread. These changes are killing our small and startup firms and the jobs they would have created. When government fails to uniformly and justly enforce property rights they contribute to the wealth and the power of the well placed few, suppress the economic potential of the rest, and support giant monopolies that enslave and impoverish the public and commandeer the government. Some in Congress and the White House continue to follow the lead of their giant multinational campaign donors like lambs...pulling America along to the slaughter.

All this patent troll and 'reform' talk is mere dissembling by China, huge multinational thieves and their paid puppets. If you tell a lie often enough and can dupe others to repeat that lie, eventually it is accepted as fact. As Mark Twain said, 'truth is not hard to kill, and (that) a lie well told is immortal'. Those who use the amorphous phrase 'patent troll' expose themselves as thieves, duped, or doped and perpetuate the lie. They have already damaged the American patent system so that property rights are teetering on lawlessness. Simply put, their intent is to legalize theft -to twist and weaken the patent system so it can only be used by them and no one else. Then they can steal at will and destroy their small competitors AND WITH THEM THE JOBS THEY WOULD HAVE CREATED. For the last several years now they have been ransacking and looting small entities taking everything they can carry. Meanwhile, the huge multinationals ship more and more American jobs to China and elsewhere overseas.

Do you know how to make a Stradivarius violin? Neither does anyone else. Why? There was no protection for creations in his day so he like everyone else protected their creations by keeping them secret. Civilization has lost countless creations and discoveries over the ages for the same reason. Think we should get rid of or weaken patent rights? Think again.

Most important for America is what the patent system does for America's economy. Our founders: Jefferson, Franklin, Madison and others felt so strongly about the rights of inventors that they acknowledged inventors rights to their creations and discoveries in the Constitution. They understood the trade off. Inventors are given a limited monopoly and in turn society gets the benefits of their inventions (telephone, computer, airplane, automobile, lighting, etc) into perpetuity AND THE JOBS the commercialization of those inventions bring. For 200 years the patent system has not only fueled the American economy, but the world's. If we weaken the patent system, we force inventors underground like Stradivarius and in turn weaken our economy and job creation. For a robust and stable economy America depends on a strong patent system accessible to all -large and small, not the watered down weak system the large multinationals and China are foisting on America.

For the truth, please see truereform.piausa.org and piausa.wordpress.com
User Rank: Ninja
11/5/2014 | 1:28:35 AM
I wish that there could be some resolution to this issue. There is a shortage of development talent in the US, and the supply exists in other countries.

Those who come to the US, especially Silicon Valley, to start companies also are met with resistance on getting proper visas, especially if they have not yet raised any money.

These issues are very problematic, and I don't have a lot of confidence that Congress is going to come to a consensus on these things anytime soon, unfortunately. 
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