A proposal by three U.S. senators would stiffen many of the regulations surrounding H-1B and L-1 visas, including an increase in U.S. worker displacement protection and restricting the number of H-1B and L-1 employees that certain U.S. companies could hire. While many companies in Silicon Valley have lobbied Congress to raise the cap on H-1B visa holders, many lawmakers have pushed back, arguing that the system is rifled with fraud issues. In 2008, a USCIS report found the H-1B program had a more than 20 percent violation rate.
A new proposal by U.S.
Sens. Harry Reid, D-Nev., Charles Schumer, D-N.Y., and Bob Menendez, D-N.J.,
would see a stiffening of the regulations surrounding H-1B and L-1 visas,
including restricting the number of H-1B and L-1 employees that U.S. companies
of a certain size could hire. While the plan currently circulating on Capitol
Hill is more informal than an actual piece of legislation, its provisions
suggest the ways in which a final immigration bill could affect future hiring
of foreign tech workers.
The H-1B visa program allows U.S.
companies and universities to employ foreign guest workers in jobs that fall
under the category of "specialty occupation," as defined by the USCIS (U.S.
Citizenship and Immigration Services). Previous legislation introduced by
federal legislators has proposed that employers make a "good faith" effort to
hire American workers before considering H-1B workers.
The
wide-ranging proposal advocates a number of alterations to immigration policy,
including the introduction of three-year provisional visas (H-2Cs) for
"non-seasonal, non-agricultural workers to enter the United
States." Those visas would give workers the
ability to change employers after one year, and allow them to "earn lawful
permanent residence if they meet sufficient integration metrics to demonstrate
that they have successfully come part of the American economy and society."
As a caveat, however, employers would not be able to hire an H-2C worker
"before an employer takes affirmative steps to recruit and hire American
workers, including through America's
Job Bank and recruiting through State Workforce Agencies."
The parts of the proposal dealing with H-1B and L-1 visas are considerably
more detailed:
"This proposal also adds fraud and abuse protections for existing temporary
high-skilled work visas,"
the
document reads. "It will amend current law regarding H-1B employer
application requirements to: (1) revise wage determination requirements; (2)
require Internet posting and description of employment positions; (3) lengthen
U.S. worker displacement protection: (4) apply certain requirements to all H-1B
employers rather than only to H-1B dependent employers; (5) prohibit employer
advertising that makes a position available only to, or gives priority to, H-1B
[non-immigrants]; and (6) limit the number of H-1B and L-1 employees that an
employer of 50 or more workers in the United States may hire."
In addition, the proposal authorizes the Department of Labor (DOL)
to: "(1) investigate applications for fraud; and (2) conduct H-1B compliance
audits. DOL will also be required to conduct
annual audits of companies with large numbers of H-1B workers and initiate H-1B
employer application investigations. Penalties for employers who violate the
law will be increased."
The proposal's focus on L-1 visas includes a prohibition from employers
"hiring an L-1 [non-immigrant] for more than one year who will: (1) serve in a
capacity involving specialized knowledge; and (2) be stationed primarily at the
worksite of an employer other than the petitioning employer."
Even as the United States continues to dig its way out from the wreckage of
a multiyear global recession, the presence of H-1B and L-1 workers continues to
be a point of contention for a number of critics within the tech industry, who
see the visa program as riddled with problems and prone to
loopholes
that allow employers to import lower-wage technology workers under the guise of
skill-set shortages.
According to an analysis of U.S.
immigration data by the National Foundation for American Policy (NFAP), a
nonprofit public policy group, H-1B visa holders made up 0.06 percent of the
national labor force in fiscal 2009. During that same time period, the United
States Citizenship and Immigration Services approved 85,133 H-1B visa
petitions.
The NFAP used its analysis to argue for an increase in annual H-1B visas and
green cards, arguing that current quotas-including a cap of 65,000 H-1B visas
and 20,000 exemptions for foreign graduate students-do not present a threat to
opportunities for American workers.
"Almost all companies that employ H-1B visa holders have a workforce with U.S.
workers accounting for 85 percent to 99 percent," read
the NFAP report. "The relatively
few businesses with more than 15 percent of workers on H-1B visas are -H-1B
dependent' and must adhere to a stricter set of labor rules."
The federal government has made some highly publicized moves to crack down
on H-1B scams, including the 2009 arrests of 11 people in seven states for
submitting false documents and statements in support of visa petitions. The
Department of Justice also leveled a 10-count indictment against Vision Systems
Group, a New Jersey IT services firm, arguing that the company abused the H-1B
system to put foreign workers on non-pay status once entering the United
States; that case came under fire earlier in
2010 from a judge who argued the search warrants were "over-inclusive."
Silicon
Valley companies have been lobbying Congress to raise the H-1B cap, meeting
resistance from legislators concerned over perceived fraud. In 2008, a USCIS
report found the H-1B program had a more than 20 percent violation rate,
including but not limited to forged documents, fraudulent degrees and workers
not being paid the perceived wage.
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