Senators Propose High-Skilled Visa Reforms

Provisions include displacement restrictions, visa allocation preferences

By Roy Maurer Nov 25, 2015

Republicans and Democrats rarely agree on much, especially regarding immigration as of late. But two senators from opposite sides of the aisle recently introduced legislation aiming to reform the nation’s guest worker visa programs for high-skilled talent. Employers, however, warn that the bill overreaches, treating all employers as if they are bad actors.

Proposed changes to the programs include more-restrictive recruitment requirements and a preference scheme for allocating visas which favors foreign graduates of U.S. universities.

Senators Chuck Grassley, R-Iowa, and Dick Durbin, D-Ill., unveiled the H-1B and L-1 Visa Reform Act of 2015, with the stated intent of reducing fraud and abuse in the programs.

The programs were designed to help U.S. companies fill critical skills gaps with foreign professionals working on a temporary basis, but have allegedly been used by some companies to replace U.S. workers with H-1B or L-1 visa holders.

“Most people believe that employers are supposed to recruit Americans before they petition for an H-1B worker,” Grassley said. “Yet, under the law, most employers are not required to prove to the Department of Labor that they tried to find an American to fill the job first. And, if there is an equally or even better qualified U.S. worker available, the company does not have to offer him or her the job.”

Only those employers considered H-1B dependent or those that are previous willful violators of H-1B requirements are required to take good-faith steps to first recruit U.S. workers for any job for which they seek H-1B workers. An employer is considered H-1B-dependent if it has:

  • 25 or fewer full-time equivalent employees and at least eight H-1B workers.
  • 26-50 full-time equivalent employees and at least 13 H-1B workers.
  • 51 or more full-time equivalent employees of whom 15 percent or more are H-1B workers.

Another charge is that large outsourcing companies “game the H-1B program,” according to a recent New York Times article which illustrated that in 2014, just 20 companies received more than 32,000 of the 85,000 visas available, and 13 of them were outsourcing firms, mostly from India.

“The backdrop for this proposal is that Congress has taken notice that the outsourcing companies submit a very high number of H-1B petitions and there are some in Congress who are concerned about fairness issues,” said Chad Blocker, a partner in Fragomen’s Los Angeles office.

“There’s a sense of urgency here for Americans who are losing their jobs to lesser-skilled workers who are coming in at lower wages on a visa program that has gotten away from its original intent,” Grassley said. “The abuse of the system is real, and media reports are validating what we have argued against for years, including the fact that Americans are training their replacements.”

However, whether there actually is widespread abuse of the system is in dispute. Anecdotal news reports “suggesting harm to U.S. workers in a few instances—even if true—do not tell the whole story,” remarked Angelo Paparelli, a Los Angeles and New York City-based partner in the business immigration practice group at Seyfarth Shaw. “The new bill would make wholesale changes to the infrastructure of the employment-based system without solid evidence of any salutary or harmful impact on the U.S. economy or American workers.”

Rebecca Peters, director of government affairs at the Council for Global Immigration (CFGI), based in the Washington, D.C. area, agreed that the proposed legislation is overly broad and “treats the tens of thousands of employers that use the program as if they are willful violators of the law.” Both CFGI and the Society for Human Resource Management oppose the legislation.

Peters explained that the Immigration and Nationality Act already has provisions in place that require employers to pay the higher of either the actual wage or the prevailing wage for the job, providing H-1B workers with the same wages, benefits and working conditions as U.S. workers. “With government filing fees and attorney fees, H-1B workers actually cost more to hire than U.S. workers, but employers go through this process because those workers are important to their innovation and ability to compete in a global market. By looking to place these provisions on the more than 27,000 employers using the program ignores the fact that we are living in a very different economy from 1990,” when Congress passed formative legislation regulating high-skilled immigration.

The Immigration Act of 1990 set in law the numerical limit on H-1B visas and the basic labor condition attestations for employers seeking foreign guest workers. “It’s only been in the last 20 years that we started integrating the Internet into our daily lives and we’ve seen the demand for skilled technical labor increase,” Peters said.

The legislation’s most significant provision would prohibit firms from replacing U.S. workers with H-1B or L-1 visa holders by applying H-1B dependent and willful violator recruitment and nondisplacement attestations on all H-1B employers. The bill calls for employers to post “a detailed description of each position” on a government website for at least 30 calendar days prior to petitioning for an H-1B worker and attest that it did not displace and will not displace any of their U.S. workers either 180 days before or 180 days after placing an H-1B worker. “Employers cast a broad net to look for talent, including U.S. workers, but often they cannot be found because of the skills gap,” Peters said. When looking at engineering, mathematics and computer science fields, around half of advanced-degree graduates are foreign-born, she explained. “No employer can foresee the future, which makes the nondisplacement attestation extremely problematic.”

The bill would also:

  • Prioritize the yearly allocation of H-1B visas to favor foreign graduates from U.S. universities with advanced degrees and classified at the highest wage level. “This is a pretty novel approach,” Blocker said. “But wage requirements could negatively impact smaller employers that don’t offer the same level of compensation.”
  • Prohibit outplacement without a government waiver.
  • Limit the admission of an H-1B worker to three years, unless the worker is approved for an employment-based green card. Currently, H-1B petitions can be extended for a second three-year period, for a total of six years and, in certain cases, beyond that. “This type of requirement is not a policy that works across all industries,” Peters said. “A three-year H-1B could be fine for a tech company where the work flows that way, but for a hospital training doctors, three years is not enough time.”
  • Prohibit companies with more than 50 employees from hiring H-1B visa holders if more than half of their employees already hold skilled-worker visas.
  • Extend the labor condition application review period from seven days to 14 days. Blocker sees a logistical challenge here, “as it would extend the government processing time, which is unappealing to a number of employers.”
  • Increase the Department of Labor’s authority to investigate and audit employer compliance. Employers with more than 100 employees and 15 percent H-1B workers would be audited annually. Employers would need to provide wage, education and demographic information on their H-1B and L-1 visa holders, which would be presented in an annual Department of Homeland Security report.

The bill contains many similar provisions for L-1 intracompany transferees. The L-1 visa category permits foreign companies to transfer workers to related U.S. entities, provided they are executives or managers or possess “specialized knowledge.”

The legislation would establish a wage floor for these workers and narrow the definition of specialized knowledge to read “an individual whose advanced level of expertise and proprietary knowledge of the employer’s product, service, research, equipment, techniques, management, or other interests of the employer are not readily available in the United States labor market.”

By requiring advanced proprietary knowledge and a test to prove U.S. labor market unavailability, the bill would slow down the visa process and “exponentially shrink the L-1B population,” Paparelli said.

“Under this virtually unattainable standard, for example, a worker involved in the development of a completely new technological innovation that supports ‘touch’ inputting on smartphones would not qualify if—as is clearly the case—competitors also used the industry-standard touch mode of data entry,” he explained. “Similarly, when Starbucks dramatically changed the established retail market for coffee consumption, an employee who played an important role in conceiving the new approach would probably not be eligible for the L-1B visa under the stringent requirements of the bill, because many businesses sell coffee for immediate consumption.”

Roy Maurer is an online editor/manager for SHRM.

Follow him @SHRMRoy

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