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A loophole that allows employers to replace U.S. workers with skilled foreign workers on temporary H-1B visas would get much smaller under a bipartisan bill introduced Jan. 4.
The legislation ( H.R. 170), introduced by Rep. Darrell Issa (R-Calif.), addresses a provision in the law that requires heavy users of the H-1B program to attest that U.S. workers won’t be displaced by H-1B workers—unless the H-1B workers have a master’s degree or are being paid at least $60,000.
The bill would eliminate the master’s degree exception and raise the salary threshold to $100,000.
H.R. 170 is identical to a bill Issa introduced last year. The current legislation has six co-sponsors from both sides of the aisle.
The first big immigration bill for the 115th Congress, the Protect and Grow American Jobs Act takes aim at recent incidents at Southern California Edison and Walt Disney World, where U.S. information technology workers were laid off and required to train their H-1B replacements.
It also dovetails with President-elect Donald Trump’s immigration policy, which thus far has focused on prioritizing jobs for Americans.
“In order for America to lead again, we need to ensure we can retain the world’s best and brightest talent,” Issa said in a statement. “At the same time, we also need to make sure programs are not abused to allow companies to outsource and hire cheap foreign labor from abroad to replace American workers. The legislation we’re introducing today does both.”
Or does it?
The elimination of the master’s degree exemption is “good,” but raising the salary threshold isn’t likely to make a difference, and could have a bad “collateral effect,” attorney Sara Blackwell of the Blackwell Firm in Sarasota, Fla., told Bloomberg BNA Jan. 4. To avoid having to test the labor market, employers could wind up paying H-1B workers $100,000 and American workers only $60,000, she said.
“They should get rid of the exception altogether,” Blackwell said. “There should always be a requirement” that employers make sure that hiring H-1B workers won’t displace American workers, she said.
Blackwell represents the two former Disney employees who brought Racketeer Influenced and Corrupt Organizations Act claims that Walt Disney World and the IT firms it contracted with colluded to lie to the government about whether U.S. workers were being displaced.
The lawsuits were dismissed, but those and other former Disney workers now have brought a race and national origin discrimination case under Title VII of the 1964 Civil Rights Act and the Civil Rights Act of 1866 (42 U.S.C. § 1981). Blackwell also is an attorney on that lawsuit.
The problem with having any exception to the anti-displacement rule is that the business model of these H-1B dependent companies is to “eliminate the jobs out of the U.S. and send them to a cheap foreign country,” usually India, Blackwell said.
The purpose of hiring the H-1B workers is so they can get training that will then be imparted back to workers in their home country, she said. Once that happens, the H-1B workers are then sent to work at another client, she said. The same is true for workers on L-1 intracompany transferee visas and foreign nationals on B-1 business visitor visas, she said.
“To really make a difference, you have to pay attention to the full picture, the end game, and stop it at the offshoring,” Blackwell said. And the way to do that is legislation preventing companies from sending private data overseas, she said.
Companies like banks and health insurance companies have outsourced work to India, where consumers’ data isn’t subject to the same privacy protections as the U.S., Blackwell said. “There are so many awful things that could happen,” she said.
Blackwell also suggested capping the percentage of employees on H-1B visas that any one employer could have, to something like 25 percent or 30 percent. “That’s going to make a huge difference” for those contracting companies whose “whole purpose” is to offshore the jobs, she said.
Congress may not have an appetite for Blackwell’s suggested changes, or even Issa’s bill. Lawmakers have practically been allergic to any immigration legislation for more than three years. But having a Republican-controlled Congress coupled with a Republican president may provide the impetus for the issue to finally be addressed.
To contact the reporter on this story: Laura D. Francis in Washington at firstname.lastname@example.org
Text of H.R. 170 is available at http://src.bna.com/k8Y.
Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.
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