The news that Microsoft will be laying off 5,000 workers is certainly troubling since the company has traditionally been very reluctant to release folks and only a year ago was discussing how they had 5,000 openings they could not fill.

The anti-H-1B Senator Charles Grassley has now jumped in to the fray demanding that Microsoft start firing its H-1B workers before any "similarly qualified" workers lose their jobs. It's hard not to see the appeal of the argument - after all, shouldn't we look out for our own workers before protecting jobs for those who are just here temporarily?

One problem with this would be the potential violation of federal anti-discrimination laws. Another is assuming that workers are fungible and you can just swap in and swap out workers like light bulbs. Perhaps you have an H-1B worker with critical skills that has been working on a project for two years and has a unique knowledge that would take months for a new person to learn? Would it make economic sense to fire the person? Microsoft doesn't need Big Brother looking over its shoulder reviewing the extremely perilous process of coming up with the precise workforce that will allow it to steer through the treacherous economic storm we are all facing.

Of course, H-1B employees WILL be losing their jobs. Microsoft has already said so:

In response to a query about Grassley's letter, Microsoft said the initial layoffs include foreigners working here on visas.

"The initial reductions we announced affect employees in a number of business units, and a significant number of the affected employees are foreign citizens working in this country on a visa," said company spokesman Lou Gellos. " ... For many of the employees here on a visa, being laid off means that they have to leave the country on very short notice, in many cases uprooting families and children."

The marketplace will deal with Senator Grassley's concerns as it has in prior recessions. H-1Bs are expensive - often $6000 or more when you factor in legal fees and hefty government filing fees. That is money most companies would rather spend elsewhere. H-1B applications take time - often at least six months of waiting for a visa number to become available after filing an application. They're a pain in the neck from a bureaucratic standpoint - posting requirements, public access files, representations to the US government, etc. The typical communications issues one would expect with foreign workers often add additional challenges. And you have uncertainty regarding the long term prospects for retaining the employee since getting a green card is often an expensive proposition with no guarantees of success.

In past recessions - and this is my third since I began practicing nearly two decades ago -  we have seen a substantial drop in the number of H-1B petitions filed. The largest users of H-1B numbers - the IT consulting companies headquartered in India - are presumably going to be wise enough to save millions of dollars in filing fees and not bother petitioning for workers for which there are not likely to be assignments in the US.  In any case, I will be extremely surprised if we don't see a huge drop in filings on April 1st.