Competing Proposals Seek to Reform H-1B Program

There are at least two bills pending in Congress as well as other legislative proposals pending which could have a significant impact on the H-1B visa.

Durbin-Grassley

Last week, Senators Dick Durbin (D-IL) and Chuck Grassley (R-IA) introduced the “H-1B and L-1 Visa Fraud Prevention Abuse Prevention Act of 2007” which is designed to crack down on perceived abuses in the H-1B and L-1 visa programs.

The bill’s most controversial provision would require all employers to go through a recruiting process before being able to hire an H-1B worker. The chief objection to this usually relates to the details of the recruiting requirement and how this would significantly slow the process for bringing in a worker that may be needed immediately. Employers would have to advertise a position for 30 days before they could seek an H-1B approval.

Employers would also have to post summaries of all H-1B applications on their web sites, something that could potentially involve revealing confidential and proprietary information about a company to a firm’s competitors.

The bill would outlaw “job shop” operations where employees are hired by one company and contracted to another company. This is seen as potentially very disruptive to the information technology sector where many non-IT companies use outsourced IT professionals to handle many functions where they lack the expertise to supervise the worker (such as a law firm or medical practice). Outsourcing companies will now be barred from using H-1B employees. Additionally, companies with more than 50 employees would be barred from having more than 50% of their employees working as H-1Bs.

The Durbin-Grassley bill will impose a more aggressive oversight program. The Labor Department would have the ability to conduct random audits of any H-1B employer and would have mandatory audits of companies with more than 100 employees that have 15% or more of their workers on H-1B visas.

LCAs could be investigated by DOL if there are “clear indicators of fraud or misrepresentation” as opposed to only reviewing for “completeness and obvious inaccuracies” and DOL would have 14 days to review as opposed to the current seven days (though most LCAs are approved instantly in the DOL’s electronic filing system). USCIS would also need to share information with DOL regarding noncompliance with H-1B rules. And DOL would get 200 more employees to investigate H-1B violations.

The Durbin-Grassley bill would incorporate provisions introduced in S.2611, last year’s Senate-passed comprehensive immigration bill relating to L-1 visas including imposing a prevailing wage requirement on L-1 employees and ending L-1 blanket petitions. The bill also seems to re-legislate items currently in the law such as barring using L-1s for job shops and limiting L-1s for new employers to 12 months.

STRIVE Act

The House comprehensive immigration reform bill recently introduced by Luis Gutierrez (D-IL) and Jeff Flake (R-AZ) incorporates parts of the SKIL Act and makes more H-1B numbers available. The bill makes a number of modifications to the H-1B program including the following changes to the cap rules:

• The cap exemption for non-profit research institutions is broadened to include all non-profit institutions

• The cap exemption for governmental organizations is clarified to include “Federal, State, or local” governmental research organizations.

• The 20,000 cap exemption for graduates of US masters programs and higher is eliminated and all US graduates of graduate programs are exempt from the cap

• Physicians in specialty medicine are excluded from the cap

• Master’s and higher degree holders in science, technology, engineering and math where the degrees were earned outside the US are exempt from the cap (SKIL limited this group to 20,000, though it included all graduate degree holders and not just the stem professionals)

• The changes to the cap exemption rules take effect upon passage of the new law and will apply to petitions filed on or after that date.

Other proposals

Finally, many groups are arguing for Congress to drop the quotas all together in the H-1B category and allow businesses to hire workers as needed. Bill Gates recently called on Congress to do this in his testimony before the Senate.