Reps. Bill Pascrell, Jr. (D-N.J.), Paul Gosar (R-Ariz.), Ro Khanna (D-Calif.), Frank Pallone, Jr. (D-N.J.), and Lance Gooden (R-Texas) introduced legislation aimed at reforming and closing loopholes in the H-1B and L-1 visa programs.

Companion legislation was introduced in the Senate by Sens. Chuck Grassley (R-Iowa), Dick Durbin (D-Ill.), Richard Blumenthal (D-Conn.), Sherrod Brown (D-Ohio), and Bernie Sanders (I-Vt.). However, while the sponsors tout these bills as the "complete overhaul of the H-1B and L-1 visa programs" which would "protect American workers and crack-down on foreign outsourcing companies which deprive qualified Americans of high-skill jobs" there are some aspects of the bill which don't live up to the hype.

First, the H-1B and L-1 Visa Reform Act does increase the wage floor for H-1B and L-1 workers, a much-needed reform to the visa programs. However, this is a slight reform of the definition of the wage floor for H-1Bs. Currently there are four wage levels, 1 through 4, defined in terms of experience and responsibility. The bill would require visa recipients to be paid at Level 2 or the median wage, each calculated for the given occupation in the given geographical region, providing a small increase in H-1B pay.

Second, the H-1B and L-1 Visa Reform Act would require U.S. Citizenship and Immigration Services to prioritize the annual allocation of H-1B visas. Currently H-1B visas are allocated via a lottery system based on educational attainment. The legislation would retain the lottery, but prioritize applications based on certain criteria. Unfortunately, the priorities do not take overall wages offered into account, which would provide the greatest benefit to U.S. workers forced to compete with foreign workers.

Norm Matloff, a professor of Computer Science at UC Davis and expert in the H-1B Tech Industry field describes the problem with this new H-1B allocation process. He explains how simply holding an "advanced degree", say a masters in "Business Information Science," does not make someone an expert, or even necessarily highly skilled.

I know that some critics of H-1B who are non-techies naively think this is reasonable; it is NOT. Any American techie has seen lots of H-1Bs with a Master’s degree (PhDs are a small minority among computer-related H-1Bs) who are quite weak in technical skill. Same for the American MS holders, of course; the degree just doesn’t mean much... If this bill were enacted, the employers would still hire the new-grad foreign student with an MS in Business Information Science from San Jose State in lieu of the older American (I have an actual person in mind here) with a Master’s in Statistics from UC Berkeley, one of the top Stat departments in the world.

Third, according to the sponsors, 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. These provisions address the types of abuses that have been well-documented." Sadly, this is somewhat misleading, as the text of the bill would require employers to post job openings with the DoL, but NOT require them to hire the qualified Americans who apply. The firms would have a green light to hire H-1Bs, just as they do today. The bill reads:

The Secretary of Labor shall— (A) conduct an annual survey of employers hiring foreign nationals under the H–1B visa program; and (B) issue an annual report that— (i) describes the methods employers [are] taking good faith steps to recruit United States workers for the occupational classification for which the nonimmigrants are sought, using procedures that meet industry-wide standards; (ii) describes the best practices for recruiting among employers; and ‘(iii) contains recommendations on which recruiting steps employers can take to maximize the likelihood of hiring American workers…

Professor Matloff doesn't hold back on this aspect of the bill either. He states, "'Industry-wide standards'? 'Best practices'? Their standards and best practices are to hire foreign workers instead of Americans! The phrasing above presumes that the employers are currently wringing their hands, saying, 'Darn it! We’re trying so hard to find Americans to fill our jobs, but we just can’t find them!'"

The legislation also closes the B visa loophole that’s used by employers who can’t get H-1B visas for their foreign workers. The B visa is reserved for foreign tourists and business travelers, however employers who are unsuccessful in obtaining an H-1B visa for a specific worker will often have that worker obtain a B business traveler visa to allow the worker to come and work in the U.S. employers would no longer be able to take advantage of that loophole under the bill.

Finally, 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 visa holders, from hiring additional H-1B employees. The bill gives the U.S. 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, although it is interesting to note that age is not mentioned as one of the research criteria.

H-1B visas

Updated: Tue, Jun 9th 2020 @ 12:15pm EDT