Senators Durbin-Grassley: When will we get our Reform Bill?

Senator Dick Durbin (D-IL) and Senator Chuck Grassley (R-IA) introduced the H-1B and L-1 Visa Reform Act last month–that would reform the H-1B and L-1 guest-worker programs to prevent abuse and fraud and to protect American workers.

Senator mentioned in their bill that they would mend H-1B visa program, not end it, while making reasonable reforms that will not reduce H1Bs which are available. Bill talks about amending H1-B and L1-B visa programs. Some of the key requirements of the bill are

• 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.

It is rational by all means that Senators want to protect American workers and would like to prevent abuse and fraud that take place at some companies, especially the one which relates to replacing American worker group. But Senators should note that DOL is already getting tough on scrutinizing LCAs from petitioners and USCIS would not approve cases unless petitioner is clean. So DOL/INS is already working on overcoming some loopholes. This bill would not add anything to what DOL/USCIS is currently working on. There is no need of such amendment in the system when steps are already taken. This bill will do nothing but restrict employer from hiring skilled workers to avoid unnecessary audits and paperwork.

If Senator’s main objective behind such bills is to overcome the loopholes in H-1B and L1-B visa program, then there are other ambiguities in the program that should be addressed. Some of these ambiguities are:

• H1-B and L1-B workers pay Social Security and Medicare taxes every year. Once skilled worker leaves the country, not an iota of this tax is returned, but rather goes into Federal Reserve. Program calls for immediate reform to amend the system that will allow returning skilled worker to withdraw their contribution. These taxes should be returned fully, or at least some percentage should be available to withdraw. This could be based on number of years skilled worker was in the country.

• L1-B program allows dependents to obtain EAD and work full-time while the principal beneficiaries are in the country. Such amendment should be added to H1B program as well. Spouses of these skilled workers are well educated and could contribute to American economy. Currently spouses (H4 visa beneficiary) either have to give up their career to accompany the principal beneficiary or have to wait long time till they could find a petitioner to file their work visa to join them. Amendment in the program could also be achieved by counting these dependents towards small amount of H1B visa number cap, and their case being approved depending on individuals skill set. DOL could also issue H4 visa approved skilled occupations by which they will qualify for some visa numbers.

• H1-B worker when laid off, has only 2 weeks to find a new job that will transfer their H1-B visa. Unsuccessful to find a job, they become out of status and have to leave the country in 10 days. Country allows Americans to collect unemployment benefits for 33 weeks (46 weeks with a new rule), assuming that individual will take at least 33 weeks to find a new job. Similar time period should be provided for skilled workers as long as he/she has valid 3 years on his/her visa left. It is totally impractical to find a new job in 2 weeks.

• Most of the skilled worker visas are utilized by Computer/IT/Software engineers. System calls for different visa-type for such workers. H1B visa should only be available for other occupations. Cap on H1B visa could be reduced if new form of visa will be available of Computer/IT/Software workers.

• Employment based green card program should have quota based on occupation (Science, Technology (IT), Engineering, Mathematics, Business, Management, Healthcare and so on) and not based on countries. For America to prosper, it need skilled workers based on their qualification and not based on race. DOL/DHS could issue occupation pressure list every month, thus making quota current and unavailable as per need.

There is an acute need to have aforementioned reforms in the system. When will we see such amendments or bills from these Senators that will benefit skilled worker class? Or as said by various source, all we should expect from them is more xenophobic legislation?

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