Brad Smith

In a letter made public today, Microsoft responded to questions raised by U.S. Sen. Charles Grassley over the company's continued employment of foreign guest workers amid its layoffs. The company defended its actions and made it clear that it's not on board with Grassley's suggestion that Americans should be given preference over workers employed in the U.S. under H-1B visas.

Some workers employed under H-1B visas will be let go as a natural part of the layoffs, along with other employees, Microsoft general counsel Brad Smith wrote in the letter. However, he wrote, Microsoft  does "not expect to see a significant change in the proportion of H-1B employees in our workforce following the job reductions."

Read on for an extended excerpt from Smith's response to Grassley.

You also asked in your letter how we decide which jobs to eliminate, whether employees with H-1B or other work visas are affected, and how many of the jobs being eliminated are held by Americans.

Because these decisions will be made over 18 months, it’s too early to know the precise answers.  We do know, however, that the job reductions will impact non-Americans who hold jobs outside the United States, as well as both visa holders and U.S. workers inside the United States.  The majority of Microsoft’s workforce is made up of U.S. workers, and therefore the majority of jobs eliminated in January were held by U.S. workers.  Workers on H-1B visas and other temporary work visas make up only a small percentage of our overall workforce, but they were also among the employees impacted by the reductions announced in January.  Employees outside the United States were also impacted.

As I’m sure you’d expect, we take care to make all employment decisions – including the termination of employment for any individual – in a manner that complies with Title VII of the Civil Rights Act of 1964.  In addition, we do not base compensation decisions in the U.S. on an employee’s citizenship.

Finally, you asked about Microsoft’s plans for retaining H-1B or other work visa program workers after the job eliminations.

H1-B employees have always accounted for less than 15 percent of Microsoft’s U.S. workforce, the level that is used in immigration law to determine whether a company is “H-1B dependent.”  Nonetheless, the ability to tap into the world’s best minds has long been essential to our success.  Although they are a small percentage of our workforce, H-1B workers have long made crucial contributions to Microsoft’s innovation successes and to our ability to help create jobs in this country.  We are confident this will continue to be true in the future. 

We focus our recruiting for core technology jobs at U.S. universities, which continue to be among the best in the world for computer science and engineering graduates.  However, as one recent study found, in 2005 temporary residents earned more than 40 percent of the engineering and computer science degrees at U.S. higher education institutions.  For doctoral degrees, that number was even higher, as temporary residents accounted for 59 percent of the degrees awarded in these fields that year.

The substantial majority of H-1B petitions filed by Microsoft are for core technology positions, and technology and engineering positions account for about 90 percent of Microsoft’s H-1B workforce.  Many of these H-1B employees have been seeking permanent resident status for many years and would no longer be dependent on their H-1B visas but for multi-year delays in the green card process.

With these factors taken together, we do not expect to see a significant change in the proportion of H-1B employees in our workforce following the job reductions.

I want to underscore that we are rigorous in our compliance with the requirements of the H-1B program.  We are familiar with published reports about abuse by some employers in the H-1B visa category.  We believe that the H-1B fraud issue is important and needs to be addressed.  We recognize that every H-1B employer has an obligation to ensure that the program’s rules are followed.  We support H-1B reform efforts to ensure that users of the program follow both the spirit and the letter of the law.