According to an article in the San Jose Mercury News last month, the increase happened because a "glitch allows tech visa spillage." But how could this happen?. Well, according to Immigration and Naturalization Service managers, this occurred " because of a computer system miscommunication." Agency spokesperson Maria Cardona elaborated very briefly on the meaning of this "miscommunication" in the San Jose Mercury News article by saying, "The error occurred when visa approval numbers from the four INS service centers that process H-1B applications didn't get into the agency's main computer system in Washington that tracks totals..."

After such an informative explanation for this blunder, about the only thing that one could conclude with certainty is that the Immigration and Naturalization Service should have those superstar computer experts with H-1B visas provide network and database support for the agency. It seems Silicon Valley is not the only entity that cannot find enough qualified workers to devise and run computer systems.

A spokesperson for Representative Lamar Smith, Chairman of the House Judiciary Committee's Immigration Subcommittee, was not placated by this explanation. He declared: "They can blame system errors or the computer. They can blame anything they want, but ultimately this is an agency that cannot count." If this is indeed so, maybe our government could import a few H-1B visa holders to help the agency count too.

Though the H-1B Visa program is not just for the computer field, (even foreign fashion models of "distinguished merit and ability" are eligible for this type of visa), the computer industry seized this visa program during the 1990s as the vehicle for importing skilled IT foreign labor (or should it be "laborers"?). This trend was highlighted recently in the June 28 issue of Tech Week in an article entitled "Where Are the Workers?" This article noted: "The demand for foreign workers again made headlines this month as the limit was reached on H-1B visas. As a result, Congress is now weighing whether the cap should be increased, as it was last year. But that begs the question: If there is such a strong demand for foreign workers, why are some apparently qualified domestic workers having such a tough time finding jobs? According to the Information Technology Association of America, there is a 'desperate' dearth of skilled, high-tech workers." In a rather prescient statement later in this article, especially in view of the Immigration and Naturalization Service's subsequent glitch, the point is made that "H-1B visas have been flying out of the State Department. A year after Congress increased the annual limit from 65,000 to 115,000, visas available for high-skilled workers ran out in mid-July-even though the federal fiscal year doesn't end until October."

This piece elicited an intense response from Tech Week readers. In its very next issue the editor wrote that the H-1B matter produced "an outpouring of passionate and thoughtful commentary. Within hours of the issue's delivery to the post office and posting on our Web site, our mailbox began to swell with some of the most articulate letters to the editor I've seen...The opinions are all over the map and defy the predictable stereotypes." The editor also mentioned the issue of age discrimination as a reason for the difficulty of some in finding jobs and continued "Is there age discrimination? Many say yes. But others...say they have never experienced it and suggest there may be other reasons for the difficulty some older workers have in finding suitable employment."

The H-1B Visa program, when used to import foreigners with computer skills, has been subject to further criticism. For example, the issue of widespread fraud was broached in a July article in the Wall Street Journal entitled "Fraud Concerns Grow Over Employment-Visa Program." Republican Congressman Elton Gallegly of California, a member of the House Immigration Subcommittee, declared that the government should no longer support the H-1B visa program "until we get a handle on identifying and aggressively mitigating the fraud and abuse." This article also cites Bill Yates, an acting deputy commissioner at the INS, who said that as early as 1996 the U.S. Consulate in India concluded that a "significant percentage of H-1B petitioners, almost all of whom were computer programmers, were misrepresenting their academic or professional credentials." Yates added that by March 31, the Consulate and the INS "determined that of the 3,247 cases referred to the consulate's anti-fraud unit, 21 percent of the work experience claims made to the INS were definitely not true and another 29 percent were 'either probably or possibly fraudulent.' In addition, the agencies couldn't verify the authenticity of close to 45 percent of the claims made on the H-1B petitions."

As expected, trade associations and interest groups that want Congress to expand the H-1B Visa program took issue with Yates's fraud figures. Lynn Frendt Shotwell, legal counsel for the American Council on International Personnel Inc., said, "I don't think it's reflective of the program at large. I think the fraud numbers are overstated." More specifically, she claimed the level of fraud has been "under 5 percent overall." Representative Smith, Chairman of the House's Judiciary Committee's Immigration Subcommittee, disagreed with this H-1B industry spokesperson when asserting that the "fraud number from the State Department speaks for itself."

Another recent vigorous critique of the H-1B Visa program appeared in the Sacramento Bee. Dan Stein, President of FAIR (Federation for American Immigration Reform), a nonpartisan organization that studies of issues that affect overpopulation and environmental quality, wrote "H1-B: High-Tech firms defy work force pressures." Stein states in this September article that the IT businesses achieved significant victory against the American worker last year as a result of convincing Congress to up the H-1B visa cap to 115,000 while these companies laid off 250,000 workers.

Stein further noted that the IT industry continues to lobby Congress to raise the cap again. He indicated, "In August 1997, Computer World Magazine reported a 17 percent rate of unemployment for computer programmers over age 50. And Latinos and blacks are virtually invisible in these lucrative occupations...So how did Silicon Valley persuade Congress to bring in more foreign workers while American workers were being laid off? Big money. These industries spent millions in political contributions to maintain favored access to foreign workers. It is just easier than retraining American workers." However, Stein concluded on an optimistic note. "Fortunately for the American students and workers, there are allies. House Subcommittee on Immigration Chairman Lamar Smith, R-Texas, is keeping a close eye on the number of industry layoffs as well as gathering the testimony of American workers with lengthy resumes who cannot gain even initial job interviews."

Still another development that seemingly bodes ill for the proponents of expansion of the H-1B Visa program is the emergence of the National Research Council's Committee on Workforce Issues in Information Technology. As a result of criticisms directed at the IT industry's employment practices aired during Congressional hearings last year, the legislation that increased the H-1B cap also included a provision for the creation of a committee to study IT businesses' employment needs and practices. This committee held public hearings in Santa Clara last month for three days.

A San Jose Mercury News article about these hearings, entitled "Tech-worker shortage is probed at hearings," reported: "O Wednesday, some committee members were underwhelmed with the high-tech industry's case for the H-1B visas." The chairman of the committee, Alan Merten, said, "It's important to them but it's not very important to them...It's a very small portion of their workforce, and it's not going to make or break them."

Eileen Applebaum, another committee member, and research director at the Economic Policy Institute, starkly stated, "There's no evidence in the data to think there's a shortage...There's reason to think that supply is responsive to the demand because the companies are being more creative and flexible in finding and keeping workers." Even though this committee has just begun to hold hearings on this issue in the U.S. and in some foreign countries, it appears that when it delivers it final report to Congress by September 1, 2000, the case for expanding the H-1B Visa program for the IT industry will be far less than compelling.

In view of the above information, one might well conclude that the IT industry faces a formidable challenge in increasing the 1999 fiscal year cap-aside from the current "20,000 H-1B Glitch." Actually, this is not so. In fact, during the last month Congress passed, and the White House approved, legislation that increases the number of H-1B visas to the 115,000 level for the next two years and 107,500 in the third year before reverting to the 65,000 cap in 2002.

This skillful and successful legislative maneuver on the part of those IT lobbyists and legislators that support expanding the H-1B Visa program demonstrates vividly that the IT industry has come of age politically. It has become an exceedingly potent political force-especially if this legislation was passed without the involvement of Congressman Lamar Smith, Chairman of the House Subcommittee on Immigration. In other words, this legislative triumph should be viewed a measure of the IT industry's emerging political power. It doesn't matter how many policy studies or how much public debate occurs. The IT industry got the expansion of the visa program because it has enough political power to achieve its goal through stealth and cunning.

But one should be aware that in the view of some IT industry elites, this most recent H-1B legislation is probably not the best possible outcome. They would far prefer the passage of additional or other legislation raising the H-1B visa cap to 200,000 per year for the next three years, a goal supported by Texas Senator Phil Graham and California Congressman David Drier, or the creation of a new category of visa called a T visa. Last August, Representative Zoe Lofgren proposed a new unlimited visa category specifically for the high-tech industry-not all that surprising since Silicon Valley is within her Congressional district. Lofgren introduced the BRAIN (Bringing Resources from Academia for the Industry of Our Nation) Act as the legislative vehicle for the creation of the T visa. These visas would be available to foreign nationals that graduate from American universities with science or engineering degrees and who garner salaries of at least $60,000 a year from an American IT employer. When she introduced the BRAIN Act, the San Jose Mercury News quoted Congresswoman Lofgren as saying, "It has never made sense to me that, after allowing foreign students to study at our fine American universities, we force some of the best and brightest minds in the world to leave America and relocate to other countries to compete against us."

Norman Matloff, Professor of Computer Science at the University of California, Davis, explains cogently in his updated Congressional testimony entitled "Debunking the Myth of a Desperate Software Labor Shortage," why the BRAIN Act is a no-brainer legislative proposal. It will be interesting to see how much political support it gets in the next congressional session.

The IT industry's most recent visa victory should be viewed as the outcome of skillful power politics. Furthermore, the IT industry had more than economic resources on its side, though no doubt its economic power is indispensable and necessary to achieving such political victories. The foes of increasing the H-1B caps are currently at a major ideological disadvantage. Many Republicans and Democrats support legislation to increase the H-1B cap, but for different ideological reasons. The IT industry appeals to the Republican Party's ideological adherence to free and competitive markets, because Republicans believe this will result in economic prosperity. But when global competition enters the scheme, the ideology evolves to the view that America must recruit the best and brightest minds throughout the world to be victorious in international IT competition and ensure America's continued economic prosperity.

Notice that this ideological argument embodies and highlights a distinctly meritorious dimension that appeals to both legislators and the American public. If one appreciates the historical force of free market ideology in America, then it is not difficult to see how the H-1B propaganda could be very effective with Republicans and much of the American public. According to this global merit-market ideology, if Americans' lack the requisite IT skills to compete effectively with some foreigners, then just because they are they American citizens does not mean they should have employment preference over these more qualified foreigners within our borders.

On the other hand, the Democratic Party's support for increasing the cap on H-1B visas is intriguing, especially in light of organized labor's position opposing an increase. As far as I know, both Senators Feinstein and Boxer have been very supportive of the IT industry on this issue. Why? Aside from the fact that both of them do not want to alienate the IT industry for reasons of political self-interest, they are also personally as receptive to entrepreneurial ideology as Republicans. Furthermore, they would be very receptive to diversity arguments in terms of the impact of the importation of foreign workers into IT industries. Recollect Dan Stein's complaint that Latinos and African Americans are "virtually invisible in these lucrative occupations." There are some really astute lobbyists in the employ of the IT industries that may well make the point in a subtle and effective fashion that importing skilled IT workers will improve ethnic and racial diversity in America's IT industries.

Hence, politically savvy IT lobbyists could communicate to Democratic policymakers and legislators, albeit in circumspect fashion, that raising the H-1B cap will result in domestic diversity until more American minorities and women enter IT industries. As a measure of the extent to which the Democratic party would be receptive to the ideology of diversity, it should be noted that most of its leaders and rank-and file members would probably deem anyone that even questions its necessity a racist and/or sexist, and this would result in such a person being thoroughly stigmatized in most spheres of contemporary American society. In short, the Democratic party is as enthralled with the ideology of diversity as the Republican party is entranced with the market ethos. This results in very little, if any, protection for American IT workers from relentless global competition.

In view of the above, if it is true that there is age discrimination against older American IT workers (Would that be someone in just his or her mid-thirties?), then these people had better take organizational and political measures to protect themselves. Writing letters to Tech Week detailing in vivid and heartbreaking fashion their demeaning and insulting experiences in trying to get employment in the IT field will not really help them. These "older" IT people, themselves imbued with a meritocracy ethos, need to realize that they are involved in a political battle. American interest group politics rewards those people that organize and use power to achieve their occupational objectives, regardless of their skills and educational achievements.

If age discrimination is prevalent thoughout the IT industry, then the victims of it, and their defenders, must be aware of the ways in which the Republican Party and Democratic Party ideologies contribute, even if inadvertently, to their economic misery. Becoming aware of these ideological impediments is a necessary, but not sufficient, condition for engaging in a struggle to achieving economic justice in American society. If, on the other hand, age discrimination is not really a problem in the IT industry, then "older" people will be able reap legitimate benefit from employment in an expanding sector of our current economy.

Addendum
After I wrote this article, I found information that indicates that age discrimination may not be a problem in some IT work-at least for teenagers. The September 14, 1999, issue of the Wall Street Journal had an article entitled "Companies Pay Teens to Tackle Cyber-Projects." This piece began: "When the New York branch of Bank Melli Iran decided to start a Web site last year, it balked at paying the $25,000 or so it would cost to hire a professional for the task. So it turned to what is becoming one of the hottest labor pools on the Internet: teens... David Alyari, 17, of Smithstown, N.Y., for example. The son of a Bank Melli employee, he was willing to design the company's site for $5,000. 'The money we pay him is peanuts compared to what we we're going to pay some professional who's going to be as good as him,' says Reza Rahi, Bank Melli's New York representative, adding: 'He knows that we are not trying to cheat him.'"