US senators introduce tough rules
for hiring H-IB workers
- Obama made it clear that he had problems with the offshoring
of U.S. jobs
- Indian professionals are likely to be hit the most if the legislation
is passed by the Congress/signed by president
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The H-1B visa program allows companies to "legally
discriminate" against U.S. workers and displace them, said
two U.S. senators who today introduced new legislation to "mend,"
not end, the controversial program
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Durbin, Grassley
Introduce Legislation to Reform H-1B Visa Program
WASHINGTON, D.C., April 23, 2009
Ramesh Gupta/Gary Singh
Assistant Senate Majority Leader Dick Durbin (D-IL) and Senator
Chuck Grassley (R-IA) today introduced the H-1B and L-1 Visa Reform
Act – narrowly-tailored bipartisan legislation that would
reform the H-1B and L-1 guest-worker programs to prevent abuse and
fraud and to protect American workers.
“The H-1B visa program should complement
the U.S. workforce, not replace it,” Durbin said. “Congress
created the H-1B visa program so an employer could hire a foreign
guest-worker when a qualified American worker could not be found.
However, the H-1B visa program is plagued with fraud and abuse and
is now a vehicle for outsourcing that deprives qualified American
workers of their jobs. Our bill will put a stop to the outsourcing
of American jobs and discrimination against American workers.”
The Durbin-Grassley bill would mend the H-1B visa program, not
end it, making reasonable reforms while not reducing the number
of H-1B visas that are available. Congress intended H-1B visas to
benefit the American economy by allowing U.S. employers to import
high-skilled and specialized guest-workers when no qualified American
workers are available. While initially successful, loopholes in
the program have allowed foreign guest-workers to displace qualified
American workers.
Some claim that the H-1B program helps to create American jobs,
but it is currently being used by some companies to outsource American
jobs to foreign countries. Under current law, an outsourcing company
can use American workers to train H-1B guest-workers, fire the American
workers and outsource the H-1B workers to a foreign country where
they will do the same job for a much lower wage. In fact, Indian
Commerce Minister Kamal Nath has referred to the H-1B as “the
outsourcing visa.”
Employers can legally discriminate against qualified Americans
by firing them without cause and recruiting only H-1B guest-workers
to replace them. The U.S. Department of Labor (DOL) has said: “H-1B
workers may be hired even when a qualified U.S. worker wants the
job, and a U.S. worker can be displaced from the job in favor of
a foreign worker.” Some companies that discriminate against
American workers are so brazen that their job advertisements say
“H-1B visa holders only.” And some companies in the
United States have workforces that consist almost entirely of H-1B
guest-workers.
To address these problems, the Durbin-Grassley bill would,
among other things:
Require all employers who want to hire an H-1B guest-worker to
first make a good-faith attempt to recruit a qualified American
worker. Employers would be prohibited from using H-1B visa holders
to displace qualified American workers.
Prohibit the blatantly discriminatory practice of “H-1B only”
ads and prohibit employers from hiring additional H-1B and L-1 guest-workers
if more than 50% of their employees are H-1B and L-1 visa holders.
Under current law, it is very difficult for the federal government
to monitor the H-1B and L-1 visa programs. For example, the Department
of Labor (DOL) is only authorized to review applications for “completeness
and obvious inaccuracies.” DOL does not have the authority
to open an investigation of an employer suspected of abusing the
H-1B program unless it receives a formal complaint – even
if the employer’s application is clearly fraudulent. Even
if there is a complaint, the Labor Secretary must personally authorize
the opening of an investigation. DOL’s Inspector General has
concluded that the H-1B program is “highly susceptible to
fraud.”
To address potential fraud, the Durbin-Grassley bill would
give the government more authority to conduct employer investigations
and streamline the investigative process. For example, the bill
would:
- Permit DOL to initiate investigations without a complaint and
without the Labor Secretary’s personal authorization;
- Authorize DOL to review H-1B applications for fraud;
- Allow DOL to conduct random audits of any company that uses
the H-1B program;
- Require DOL to conduct annual audits of companies who employ
large numbers of H-1B workers.
The L-1 visa program allows companies to transfer
certain employees from their foreign facilities to their U.S. offices
for up to seven years. Experts have concluded that some employers
use the L-1 program to evade restrictions on the H-1B program because
the L-1 program does not have an annual cap and does not include
even the minimal labor protections of the H-1B program. As a result,
efforts to reform the H-1B program are unlikely to be successful
if the L-1 program is not overhauled at the same time. The Durbin-Grassley
bill would institute a number of reforms to the L-1 visa program,
including establishing for the first time a process to investigate,
audit and penalize L-1 visa abuses.
Durbin and Grassley introduced a similar bill last Congress.
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