H-1B visa woes: New legislation seeks to prioritize international students over workers from overseas

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NEW YORK – For immigrants on a visa in the United States, it’s a harrowing, nervous time. The economy is belly up, and a slew of executive orders from President Trump to restrict legal immigration and stop the flow of new foreign workforce – even as most international flights and consular services overseas are suspended – is only adding more confusion and trepidation to the already terrible situation.

Earlier this month, a group of Senators urged Trump to suspend the H-1B visa and OPT programs for at least a year until the unemployment rate comes back to even keel.

Sens. Ted Cruz, Tom Cotton, Chuck Grassley, and Josh Hawley, in a letter to Trump, harped on the “extreme lack of available jobs for American job-seekers.” They said it “defies common sense to admit additional foreign guest workers to compete for such limited employment.”

Now, in a new ironical twist to the evolving story of H-1B visas, Sen. Grassley and Indian American Congressman Ro Khanna are among a group of bipartisan lawmakers, in the Senate and Congress, who introduced new legislation last week, proposing major reforms in the work visa program.

They are all for keeping the H-1B visa program intact, but with focus on a priority for the annual allocation of 85,000 H-1B visas to be given to international students who graduate from accredited American educational institutions, while safeguarding the interests of American workers at the same time.

The ‘H-1B and L-1 Visa Reform Act’ was introduced in the House of Representatives and Senate, by Senators Grassley (R-Iowa) and Dick Durbin (D-Ill.), and by Reps. Bill Pascrell, Jr. (D-N.J.-09), Paul Gosar (R-Ariz.-04), Ro Khanna (D-Calif.-17), Frank Pallone, Jr. (D-N.J.-06), and Lance Gooden (R-Texas-05).

The legislation, if it becomes law, will require U.S. Citizenship and Immigration Services to prioritize for the first time the annual allocation of H-1B visas. The new system would ensure that “the best and brightest students being educated in the United States receive preference for an H-1B visa, including advanced degree holders, those being paid a high wage, and those with valuable skills.”

The legislation explicitly prohibits the replacement of American workers by H-1B or L-1 visa holders, clarifying that working conditions of similarly employed American workers may not be adversely affected by the hiring of an H-1B worker, including H-1B workers who have been placed by another employer at the American worker’s worksite.

“Importantly, the legislation will crack down on outsourcing companies that import large numbers of H-1B and L-1 workers for temporary training purposes only to send the workers back to their home countries to do the same job. Specifically, the bill would prohibit companies with more than 50 employees, of which at least half are H-1B or L-1 holders, from hiring additional H-1B employees,” it says.

The bill gives the Department of Labor enhanced authority to review, investigate, and audit employer compliance with program requirements, as well as to penalize fraudulent or abusive conduct. It requires the production of extensive statistical data about the H-1B and L-1 programs, including wage data, worker education levels, place of employment, and gender.

In addition, the ‘H-1B and L-1 Visa Reform Act’ encompasses several reforms of the L-1 visa program, including establishment of a wage floor for L-1 workers; authority for the Department of Homeland Security to investigate, audit, and enforce compliance with L-1 program requirements; assurance that intra-company transfers occur between legitimate branches of a company and don’t involve “shell” facilities; and a change to the definition of “specialized knowledge” to ensure that L-1 visas are reserved only for truly key personnel.

“Congress created these programs to complement America’s high-skilled workforce, not replace it. Unfortunately, some companies are trying to exploit the programs by cutting American workers for cheaper labor. We need programs dedicated to putting American workers first,” said Grassley, in a statement. “When skilled foreign workers are needed to meet the demands of our labor market, we must also ensure that visa applicants who honed their skills at American colleges and universities are a priority over the importation of more foreign workers. Our bill takes steps to ensure that the programs work for Americans and skilled foreign workers alike.”

Khanna harped on the abuse of the work visa programs, while vowing to reform it for the betterment of skilled workers.

“American immigrants come to this country with some of the most innovative, transformative ideas this world has ever seen. If we’re going to continue to foster a culture of creativity, we must reform the H-1 and L-1 visa programs to protect all workers from abuses,” said Khanna, in a statement. “Immigrants coming here on H-1B visas have made important contributions to Silicon Valley’s leadership in the digital revolution. We want to make sure that talent is coming to the US, but we also want to make sure that it’s being done with proper compensation.”

Durbin also talked about the long-standing demand of legislators on Capitol Hill to fix the broken immigration system.

“Reforming the H-1B and L-1 visa programs is a critical component of fixing our broken immigration system. For years, outsourcing companies have used loopholes in the laws to displace qualified American workers and facilitate the outsourcing of American jobs.  Our legislation would end these abuses and protect American and foreign workers from exploitation,” Durbin said.

Pascrell in a statement pointed out that “…certain corporations and bad actors have abused loopholes in the laws to undermine American workers”, while Gosar was confident that the legislation would “curtail the discrimination against high-skilled Americans by foreign outsourcing companies.”

In a way, the legislation is close to Trump’s rhetoric in 2016 when he was campaigning for President. He had then said with much flourish, to retain bright international students: “They’ll go to Harvard, they’ll go to Stanford, they’ll go to Wharton, as soon as they’re finished they’ll get shoved out. They want to stay in this country. They want to stay here desperately, they’re not able to stay here. For that purpose, we absolutely have to be able to keep the brain power in this country.”

It’s another matter that over the last four years, Trump has shifted the goal post for legal immigration several times, from advocating “merit-based” immigration system, to temporarily shutting off foreigners overseas from a Green Card, to eliminate ‘chain migration’, in his last salvo.

Adding confusion to the whole situation is a report in Forbes last week, which said, according to some unidentified sources, that the Trump administration is considering a proposal to require companies to pay foreign-born scientists and engineers in H-1B visa status a minimum wage of $150,000 to $250,000 or more a year, depending on the job title and location.

“Several sources have confirmed that individuals most opposed to immigration in the administration view the coronavirus pandemic – and a 30-day review of temporary visas contained in the April 22, 2020, presidential proclamation – as their best chance to prevent the vast majority of high-skilled foreign nationals from being allowed to work in America,” the Forbes report said.

According to the Forbes report, the H-1B restriction under discussion is to prevent, at minimum, the entry of H-1B visa holders who are not paid at the highest wage level – Level 4 – under the U.S. government’s prevailing wage criteria.

“Analysts have identified several problems with the proposal. First, White House adviser Stephen Miller said in 2017 that only about 5% of current H-1B visa holders are paid at least Level 4 wages. In reality, the percentage is higher, but the statement is most important for what it means – that the goal of the current proposal is to eliminate up to 95% of H-1B visa holders from working in the United States,” said the Forbes report, pinpointing perhaps the rationale behind the expected move.

If indeed the administration implements the new rules, then, for example, all H-1B visa holders to be paid at least Level 4 wages would mandate a minimum wage of more than $254,000 a year for a Financial Manager in New York City and the surrounding area, according to a National Foundation for American Policy (NFAP) analysis of the government’s Foreign Labor Certification Data Center Online Wage Library. For a Marketing Manager the minimum wage would be over $227,000 annually and approximately $145,000 a year for a Software Developer (Systems).

Forbes pointed out that in Silicon Valley, in San Jose and the vicinity, a company would need to pay a federal minimum wage for an H-1B visa holder of $241,696 a year for a Computer and Information Systems Manager, $172,640 for a Software Developer (Systems) and $159,162 annually for an Electrical Engineer.

The proposal is expected to harm startup companies, smaller firms and companies trying to grow in the United States, attorney Kevin Miner, one of the country’s top experts on the government prevailing wage system, was quoted as saying.

“…There are numerous examples of companies hiring foreign nationals who are early in their careers and then developing those workers – along with their American colleagues – into the next generation of leaders for the company. By allowing H-1Bs only for workers being paid at the very top of the market, this entire system is disrupted and American employers are instead being told by the government who they can and cannot hire, regardless of business needs,” Miner told Forbes.

LEGAL VICTORY FOR FOREIGN WORKERS

Meanwhile, even as confusion persists over how the H-1B visa program will ultimately look down the road this year, and if the new batch of H-1B visa workers selected by a lottery would be allowed to emigrate this Fall, in a significant legal victory for foreign workers, the US government had to concede to an agreement with the ITServe Alliance, which represents firms that place foreign workers at U.S. companies.

MSN.com reported that the agreement would have U.S. Citizenship and Immigration scrap a 2018 policy memo widely seen as a blow to the IT staffing and outsourcing industry.

The memo, according to the deal made last week, must be tossed out within 90 days. It also requires companies placing H-1B holders at third-party firms to provide the government with evidence for the duration of the requested visa term of where the foreign citizens will work and what jobs they will do.

Even as the imbroglio over skilled workers continue, India’s largest IT services firm TCS is hiring more American workers, reducing their dependency on the H-1B visa, reported trak.in

TCS Executive Vice President and Global Head, Human Resources, Milind Lakkad, informed that TCS hired 20,000 Americans in the last five years. This year itself, hiring of Americans has increased by 2.5 times than the company’s normal rate, the report said.

(Sujeet Rajan is Executive Editor, Parikh Worldwide Media. Email him: sujeet@newsindiatimes.com Follow him on Twitter @SujeetRajan1)