With the H-1B fight over and lost, Sen. Charles Grassley (R-Iowa) lashed out, almost flailing in the minutes before the Senate Judiciary Committee's final vote Tuesday.
The tech industry had won. It was getting late in the day and the committee was moments away from adopting, in a 16-2 vote, 19-pages of tech industry sponsored amendments to the H-1B provisions in the long-awaited Senate immigration.
With the votes against him, Grassley, a leading H-1B critic, dropped any need for niceties. "Let's peel back the onion and see how much this stinks," said Grassley (R-Iowa), earning some laughter from people in the committee room.
Grassley attacked the legislation across the board; other critics may follow suit in the months ahead as the bill's provisions are analyzed and peeled back.
The immigration bill now goes to the full Senate, where more attempts to amend it are expected before a final vote is taken some time in the next several months.
The Senate debate will begin next month.
The House, meanwhile, has been preparing its own comprehensive immigration bill for vote.
There are a lot of areas in the Senate bill that are certain to gain criticism, particularly some last minute changes.
The original bill, drafted by a bipartisan Senate group dubbed the "gang of eight," would raise the base H-1B cap from 65,000 to 110,000, with an escalator that can increase with demand to 180,000 in increments of 10,000. The tech industry wanted a cap of at least 300,000.
The revised bill raises the initial cap to 115,000, a small, seemingly spiteful incremental increase.
The annual escalator was increased to 20,000, while the overall cap of 300,000 remains unchanged. The amendments add a provision that blocks escalator increases if occupational unemployment for the management, professional and related occupations is 4.5% or higher.
"Did the supporters of the amendment know that the average unemployment (rate) for this group was 3.7% last April, compared with what this amendment has, 4.5%?" said Grassley. "This amendment does nothing to stop huge increases in H-1B visas."
In the first quarter of this year the unemployment rate for management professionals was 3.8%; for computing and math specialists, 3.5%, and for tech architects and engineers, 3.8%.
The late amendments to the bill make a number of other changes to the recruitment provisions.
For instance, all H-1B hiring firms will be required to post jobs on a government sponsored Web site, but only so-called "dependent firms" -- not all companies -- will be required to offer a job to an equally or better qualified U.S. worker. Dependent firms are those with 15% or more of the workforce on visas.
"Requiring only the subset of H-1B dependent firms to offer jobs to better or equally qualified Americans cancels out the only possibly real and tangible protection that US workers would have gotten in this bill," said Daniel Costa, an immigration policy analyst at Economic Policy Institute.
But Costa said affected firms will use exceptions in the law to get around the requirement of considering an equally qualified American. One is the "intending immigrant" provision for workers being sponsored for a green card.
Costa said the new formula on the H-1B cap would allow it to rise much more quickly than in the past.
Ron Hira, a public policy professor at the Rochester Institute of Technology and researcher on H-1B issues who also testified about the bill, called the final agreement "a huge step backward for American workers."
Similarly, IEEE-USA President Marc Apter was also critical.
"This will allow large multinational technology companies to replace American workers with lower-cost H-1B employees," Apter said in a statement. "It would be nice if Congress would look out for its citizens rather than the profit-driven interests of employers."
The IEEE-USA believes an increase in H-1B workers is unnecessary because the bill provides for unlimited employment-based green cards for STEM advanced degree holders. The group has supported green cards for advance degree graduates.
"The green card provisions also solves every legitimate problem employers complain about that they imagine H-1Bs can solve," said Apter.
Longtime H-1B critic Norm Matloff, a professor of computer science at the University of California at Davis, meanwhile, said in a recent newsletter that the bill "would in essence grant automatic green cards to all foreign STEM graduate students." That would be a "huge blow" that would "swell the STEM labor market like crazy," and thus suppress wages.
John Miano, the founder of the Programmer's Guild, was dismissive of any of the provisions aimed at protecting workers. "As there is no enforcement in H-1B, it does not matter at all -- yet still they argue over them," he said.
The industry amendments were sought by Sen. Orrin Hatch (R-Utah), and were included in the final bill as a result of a compromise with Sen. Chuck Schumer (D-N.Y.), a member of the "gang of eight."
"It's a compromise," said Schumer. He said the bill now has things he likes and doesn't like, "but that's how compromise is."
As the minutes ticked down to a final vote, Grassley made some final efforts to amend the bill. He had previously fought for "good faith" hiring requirement for all firms, an amendment that lost. He tried again, but focused the amendment on women.
In March, Karen Panetta, a professor of electrical and computer engineering at Tufts University, testified before the judiciary committee for the I-EEE. She told the committee that eight-out-of-10 of the visas used by offshore outsourcing firms are held by males.
Grassley, citing that testimony, introduced an amendment to ensure that women are not displaced by foreign workers 180 days before and after and H-1B worker is hired.
Schumer responded by saying that "I think we should protect both men and women."
He contended that there were two provisions in the bill that protect workers. A higher wage requirement would keep firms from using visa workers as cheap labor. Also, if visa workers are unhappy with an employer, they can leave more easily under the bill's provisions.
Grassley rebutted. "You just heard him (Schumer) say, we want to protect both men and women. That's what my previous amendment did and he voted against it."
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