Legislative Update: Restrictive H-1B Bill Introduced

images.jpegThis month has seen the introduction in the Senate (by Senator Cruz (R)) and the House (by Rep. Mo Brooks) of a bill to several limit the H-1B visa.  These bills would set a minimum salary of $110,000 for ALL jobs under the H-1B umbrella.   In addition, if one employee in the same or similar position has been displaced, furloughed, terminated without cause or was otherwise separated without cause in the last two years (or if an employee is so separated within 2 years of filing the H-1B), that employer cannot use the H-1B program to hire someone in that position (or, they need to end the H-1B if already began).  Additionally, the fees for the program would be raised.  Employers with over 25 employees would have to pay $10,000 for the training fee as opposed to $1500, and the fraud prevention fee would raise from $500 to $2000.  H-1Bs would be limited to those with Ph.D. degrees or higher (those with a Bachelor’s or Masters would have to show that they have at least 10 years experience in addition to their degrees), and those who received their degree’s in the US would have to be given precedence by the employer over those with foreign degrees.   Lastly, the bill would get rid of any and all OPT for students on an F visa but would also require that ALL H-1B applicants have at least 2 years experience in the field.

At least part of the push at this time are the allegations against Disney of its misuse of the H-1B visa system.  For those who are not familiar with these allegation, former employees are accusing Disney of replacing US Citizen workers with foreigners under the H-1B system and of forcing those same US Citizen workers to train the H-1B employees before leaving their positions.  It should be noted that Disney denies these allegations and this case has yet to go to court.  However, even if these allegations are true, and as horrible as they are, there are better ways of handling these violations.  First and foremost, perhaps if congress actually allocated funding to USCIS to enforce the current H-1B regulations, they would have more officers to visit work locations and investigate companies so as to be able to stop these violations before they begin, or soon thereafter.  Even limiting the total number of H-1B visas a company can file for in a given year would be a better idea than this bill.

The problem with this bill is that current law already makes it a clear violation if a company uses the H-1B visa process to displace a US worker.  While not spelled out quite so severely as the current law, US employers cannot layoff their workforce and replace them with H-1B workers, this is not allowed.  As stated above, providing funding for USCIS to ensure compliance with this requirement would help to stop such abuses.  However the bill before congress does NOT provide such fundingSimilarly, there is already in place what is called the prevailing wage requirement.  US employers are already required to pay a minimum wage to workers, and this wage is determined by market conditions for the particular position in the particular geographic region in which the employees will work.   While currently US Employers are not required to file a formal request to the Department of Labor for its ruling on the prevailing wage, this is another way that Congress could use existing law to tighten requirements – require a prevailing wage be filed for H-1Bs.  This would keep the current fairness inherent in determining a wage based upon the actual job and physical location of the work, as opposed to trying to slap a one-size-fits-all wage that will limit the H-1B to primarily large employers, who are the ones who abuse the system.

Further issues relate to limiting the H-1B program to just Ph.D.’s and eliminating OPT.  First, eliminating OPT, while at the same time requiring 2 year experience and forcing a US employer to give a foreigner who received their degree from the US seems contradictory.  How are these recent grads suppose to get the experience?  Go home for two years?  While those who fight immigration saying that it hurts US workers would say “yes” to that question, the vast majority of economists agree that immigration actually helps the US economy and helps US workers (for example see this article).  Denying these students the ability to stay and work in the US, will only hurt our economy, not help it.

Hopefully Congress will not rush to judgement and pass this bill.  Instead, I hope cooler minds will prevail and better legislation, that allows the H-1B visa program to help our economy will be passed.

(image from the Times of India)

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