The deft maneuvering came during the drafting of the new bipartisan Senate immigration proposal being released this week. It underscores the rising clout of a young company that is following the road paved by such technology forebears as Microsoft and Google, moving from indifference toward Washington to persistent, sophisticated engagement.
The payoff on the immigration provision could be substantial, allowing Facebook and other technology companies to avoid a requirement that they make a “good-faith” effort to recruit Americans for jobs before hiring from overseas. Facebook could also sidestep proposed rules that would force it to pay much higher wages to many foreign workers.
The new measures are part of a compromise between the tech industry, which says it faces a shortage of qualified engineers and other high-skilled workers in the United States, and critics, including some labor unions, who say the H1B visa program has been abused by firms seeking cheaper labor to maximize profits. The new carve-out for Facebook and other firms, critics fear, could help companies evade the stricter proposed regulations being hailed by lawmakers as a way to crack down on abuses.
Facebook officials declined to comment on the specific H1B provision, instead couching the company’s lobbying on the issue as part of a broader push to improve the country’s economy. They said any new wage requirements would have “little or no impact” on Facebook because it pays engineers a “competitive wage that is well enough above the lowest level required by current law.”
“Modernizing the immigration system so it helps the U.S. economy and responsibly promotes innovation is a top priority for Facebook and all of our tech colleagues,” Jodi Seth, a Facebook spokeswoman, said by e-mail. “We are working with the Hill and others to explain how our businesses work and to make sure reforms don’t have unintended consequences that might undermine the purpose of the bill.”
Facebook faces stricter regulations because the company recently surpassed a key legal threshold and is now considered to be “dependent” on H1B visas. The U.S. government classifies companies as dependent when more than 15 percent of their workers hold H1Bs. Facebook said it is “just over” the 15 percent line.
The new H1B regulations in the Senate deal are aimed largely at big outsourcing firms — most of them based in India — that employ tens of thousands of new H1B workers each year. More severe limits would be placed on companies with more than half of their workers on the visas, including stiff fees and an outright ban to take effect in 2016 on these firms hiring additional H1B workers.
One such staffing company, New Jersey-based Cognizant, began pushing lawmakers in 2010 for the chance to avoid stiff regulations targeting companies in which a majority of their employees hold H1Bs, according to people familiar with the discussions. A Cognizant spokesman declined to comment.
Then this year, as momentum built for an immigration bill, Facebook began pushing for an even broader exemption.
Working with lobbyists for Compete America, a trade group representing U.S. tech firms, Facebook helped secure a workaround: Any worker in the process of obtaining a green card “shall not be counted” toward the 15 percent threshold.
That means Facebook and other companies could file just enough applications to fall back below the 15 percent line. The language, pulled from a draft copy of the legislation, was reviewed by The Washington Post.
Supporters of the workaround said severe backlogs in the green-card program have left many workers for Facebook and other firms on H1Bs, driving up the companies’ percentage.
“We need to crack down on firms that abuse the H1B system, but some companies’ H1B number is inflated because their employees remain stuck in the backlog,” said Sen. Charles E. Schumer (D-N.Y.), a key architect of the new immigration plan. “It shouldn’t be seen as a company’s fault when the government simply takes too long to process green cards.”
In an op-ed for The Post last week, Zuckerberg questioned why there are not enough H1B visas for immigrants while introducing his new group, FWD.us.
“Why do we offer so few H-1B visas for talented specialists that the supply runs out within days of becoming available each year,” Zuckerberg said, “even though we know each of these jobs will create two or three more American jobs in return?”
FWD.us is a separate entity that Facebook says is not connected to the company’s lobbying on Capitol Hill.
Jeff Chester, executive director of the Center for Digital Democracy and a frequent critic of Facebook, said, “The real goal is to put Zuckerberg and Facebook front and center with the Washington elite . . . to better extinguish a growing call to regulate how his company does business.”
Zuckerberg keeps an arm’s-length distance from politics — notwithstanding that FWD.us is being advised by former Clinton White House press secretary Joe Lockhart.
Facebook, founded in Zuckerberg’s Harvard dorm room in 2004, had until recent years maintained only a rudimentary Washington presence. (Washington Post Co. Chairman Donald E. Graham is a member of Facebook’s board of directors.)
Its legislative coup comes as the company increases its political muscle. Its spending on lobbying was nearly $4 million last year — making it among the nation’s top tech lobbyists in 2012. That total was nearly 20 times what the company spent in 2009, according to the Center for Responsive Politics.
These amounts are almost certain to grow as bipartisan pressure builds for a major federal privacy bill that could put new restrictions on how Facebook and other technology companies collect and use personal data to target advertising to users. The practice is at the core of the company’s business model.
The Federal Trade Commission targeted Facebook in 2011 with a privacy investigation, which was resolved through a settlement.
Facebook’s lobbying team includes prominent players from each party — connections that positioned the firm well as the bipartisan immigration talks heated up in the Senate in recent weeks.
Joel Kaplan, the head of Facebook’s Washington office, was a senior aide in the George W. Bush White House, where he worked with his friend Cesar Conda, now chief of staff to Sen. Marco Rubio (R-Fla.), a key immigration negotiator.
Kaplan was a driving force behind pressing the lawmakers to include the green-card exception, according to people familiar with the deliberations who spoke on the condition of anonymity to discuss private meetings.
Another Facebook lobbyist, Louisa Terrell, formerly a White House legislative liaison under President Obama, met with staff in the offices of Sens. Schumer and Robert Menendez (D-N.J.) regarding the H1B issue, according to people familiar with the discussions.
Facebook has other staff members with deep Washington connections. The chief operating officer, Sheryl Sandberg, and the vice president of global public policy, Marne Levine, both served at separate times as chief of staff for Lawrence H. Summers, the former Obama economic adviser.
Facebook’s Washington muscle was on display last month, when Sandberg came to town to promote her new book, “Lean In.” A book party thrown for her drew such people as White House senior adviser Valerie Jarrett, Sen. Amy Klobuchar (D-Minn.) and FTC commissioner Julie Brill. Ample security and black SUVs parked in front indicated the high-powered crowd inside. (The Post’s Graham was among the co-hosts.)
Advocates for the workaround in the immigration bill said that a number of U.S. high-tech firms were at risk of crossing the threshold for being labeled “dependent” on H1B visas.
“It isn’t just one company,” said Scott Corley, executive director of Compete America, a high-tech coalition that includes Microsoft, Google and Intel.
Without the exception, Corley added, some firms might be forced to pay foreign workers more than U.S. employees performing the same jobs.
Yet critics of the H1B program say the visas put many foreign workers at a deep disadvantage. They tend to get paid less
and cannot easily leave the companies that brought them to the United States unless they obtain green cards. In addition to proposed higher wages, the Senate plan seeks to protect U.S. workers by prohibiting U.S. companies from displacing Americans with foreign employees.
Bruce Morrison, a lobbyist for U.S. electrical engineers, said the Facebook provision creates a substantial loophole. The measure requires only that green-card applications be at least “pending” — meaning U.S. government approval is not necessary for a temporary H1B worker to be classified as permanent by a company seeking to avoid stricter regulations.
“It could just be a matter of paper pushing,” said Morrison, a former Democratic congressman from Connecticut who wrote key pieces of the H1B visa law in 1990. “All you have to do is file a piece of paper, which doesn’t even have to be approved or approvable.”
Cecilia Kang and David Nakamura contributed to this report.