> what if you have a H1B worker that's a high performer in a key position that would make your company collapse if they left

Provide an option for a company to submit some paperwork and pay some non-trivial fee (to avoid gaming) that allows them to exempt such an employee from the visa-first layoff requirement. Additionally, fast track the green card process for whom said exemption is granted.

> Additionally, fast track the green card process for whom said exemption is granted.

Yes, this. Or alternatively, in an economy where everyone is getting laid, the 60 day deadline should be extended indefinitely until the economy recovers and similar jobs start becoming available and plentiful, at which point they can consider reinstating the employment requirements.

> Additionally, fast track the green card process for whom said exemption is granted.

This could easily be done by not having a per-country quota for green cards that seriously sanctions H1B holders from India and China. As in:

https://economictimes.indiatimes.com/nri/migrate/democrats-i...

Republicans probably won't let it happen, however.

> Republicans probably won't let it happen, however.

The RINOs would love to do it unfortunately. They’d sell out the future of the country for a nickel.

Isn't that how the H1-B program is supposed to work?

  "The intent of the H-1B provisions is to help employers who cannot otherwise obtain needed business skills and abilities from the U.S. workforce"

I've worked with some awesome folks, but I didn't get the impression that they possessed skills or abilities that are otherwise unobtainable in the United States.

That's really messed up: 1 - the high performer is either writing REALLY bad code, which means he's probably the only coder and no one can replace them because no one can read the code

OR

2 - the high performer is writing the best code that ever existed, which is why you can't replace them. However this is so rare. Most of those people have already migrated to FAANG where you better believe no one is that necessary.

> his is really suboptimal though, what if you have a H1B worker that's a high performer in a key position that would make your company collapse if they left but say, they were born in India, and you're laying off folks in projects that failed / folks that are low-performing.

You can offer them a different visa? H1B isn't the ONLY option. It's only being used because it's not a "key" position.

What different visa option are you referring to? Specifically, as noted in the parent comment when referring to workers from India.

If a particular employee leaving would cause Google to collapse that certainly sounds like an extraordinary alien.

Presumably the O-1 visa

EB-1 ("Executive") or O-1 ("Genius").

If a company requires Indian nationals to function, then it seems like the best place to incorporate it is in India.

This is a point of view that's new. They already have offices in India why not expand those instead of incorporating?

The US requires foreign labour to function. Which is why neither the Repubs or Democrats have ever been even remotely serious about tackling migration.

>> The US requires foreign labour to function.

Maybe at the service/entry level but certainly not for tech jobs. Tech visas have nothing to do with filling the millions of service jobs; they're about filling the corporations' pockets with millions.

The argument doesn't work for service jobs either. Salaries in these jobs would rise without a source of cheap labor and domestic labor would fill it.

It's such a scam to pretend that H1B workers are, on average, high performers in key positions. That isn't the reality, has not ever been the reality, and will not ever be the reality. H1B is about cost of labor, has always been about cost of labor, and will always be about cost of labor.

disclosure: have worked for large h1b heavy shops my entire career, and while there has been the very occasional exception, the bulk of the h1bs are hired entirely for cost reasons.

> It's such a scam to pretend that H1B workers are, on average, high performers in key positions.

I don't think this is what OP meant. OP said "what if you have a H1B worker that's a high performer". This has nothing to do with the average performance of any group. The point is that a blanket mandate that a group should be fired over others first may hurt the livelihood of a company. Note whether this is right or wrong is definitely up to debate, and different countries implement different policies for either side. I'm just clarifying the underlying logic of the OP.

It's also about companies violating the H1B visa rules on a large scale. H1B is supposed to be about high performers (that is in the law) ... and it just isn't. Companies do not ever use it like that.

There should be consequences to violating these rules. Not being allowed to hire workers JUST because they're cheap (99% of H1B visa workers) is something that should always be enforced.

Is hiring h1b for cost reasons illegal ?

It's not just H1B ... it's higher paying workers vs lower paying potential. I've seen shadow recruiting for replacements WHILE layoffs of existing staff were in progress.

To avoid gaming the system, make the company pay the current MAXIMUM salary for the same position or greater to the worker AND double the normal taxes AND have the government's IRS and Labor related departments review the description and actual duties of the job on a quarterly basis.

That is, hiring someone from outside the country SHOULD cost more so it isn't gamed.