WASHINGTON, DC - U.S. Senators Chuck Grassley (R-IA) and Dick Durbin (D-IL) introduced "The H-1B and L-1 Visa Fraud and Abuse Prevention Act of 2007" last week to overhaul the H-1B and L-1 visa programs to give priority to American workers and crack down on unscrupulous employers who deprive qualified Americans of high-skill jobs.
The H-1B visa program allows American companies and universities to employ temporary foreign workers who have the equivalent of a U.S. bachelor’s degree in a job category that is considered by the U.S. Citizenship & Immigration Services to be a "specialty occupation". The L-1 visa program allows companies to transfer certain employees from their foreign facilities to their U.S. facilities for up to seven years.
“Our immigration policy should seek to complement our U.S. workforce, not replace it,” Durbin said. “Some employers have abused the H-1B and L-1 temporary work visa programs, using them to bypass qualified American job applicants. This bill will set up safeguards for American workers, and provide much-needed oversight and enforcement of employers who fail to abide by the law.”
"This is about protecting the American worker,” said Senator Grassley. “We're closing loopholes that employers have exploited by requiring them to be more transparent about their hiring and we're ensuring more oversight of these visa programs to reduce fraud and abuse. A little sunshine will go a long way to help the American worker."
Provisions of the Durbin-Grassley bill would change existing law in the following ways:
Currently, the H-1B visa program is criticized for failing to protect American workers.
· Under current law, only employers that employ H-1B visa holders as a large percentage of their U.S. workforce are required to pledge that they have attempted to find American workers before bringing in foreign workers. The Durbin-Grassley bill would require all employers seeking to hire an H-1B visa holder to pledge that they have made a good-faith effort to hire American workers first and that the H-1B visa holder will not displace an American worker.
- The Durbin-Grassley bill would require that before an employer may submit an H-1B application, the employer must first advertise the job opening for 30 days on a Department of Labor (DOL) website. DOL would also be required to post summaries of all H-1B applications on its website.
- The Durbin-Grassley bill would require that H-1B employers may not advertise a job as available only for H-1B visa holders or recruit only H-1B visa holders for a job.
- The Durbin-Grassley bill would prohibit employers from hiring H-1B employees who are then outsourced to other companies. This is a method that some companies use to evade restrictions on hiring H-1Bs.
Currently, so-called “job shops” hire large numbers of foreign workers on H-1B visas for short time periods to train and then outsource these workers offshore.
- The Durbin-Grassley bill would prohibit companies from hiring H-1B employees if they employ more than 50 people and more than 50% of their employees are H-1B visa holders.
Currently, the Department of Labor lacks sufficient oversight and investigative authority over the H-1B program.
- The Durbin-Grassley bill would give DOL the ability to conduct random audits of any company that uses the H-1B program, and would require DOL to conduct annual audits of companies with more than 100 employees that have 15% or more of those workers on H-1B visas.
- The Durbin-Grassley bill would give DOL authority to review employers’ H-1B applications for “clear indicators of fraud or misrepresentation of material fact.” Currently, DOL is only authorized to review applications for “completeness and obvious inaccuracies.”
- The Durbin-Grassley bill would give DOL 14 days to review H-1B applications, instead of the seven days currently permitted.
- The Durbin-Grassley bill would give DOL more authority to conduct employer investigations and streamline the investigative process by, among other things, permitting DOL to initiate its own investigations and eliminating the requirement that the DOL Secretary personally authorize an investigation.
- The Durbin-Grassley bill would require the Department of Homeland Security (DHS) to share with DOL any information in H-1B visa applications indicating that an H-1B employer is not complying with program requirements.
- The Durbin-Grassley bill would strengthen existing whistleblower protections for the H-1B program and establish whistleblower protections for the L-1 program.
- The Durbin-Grassley bill would authorize the hiring of 200 additional DOL employees to administer, oversee, investigate and enforce the H-1B program.
Currently, the H-1B and L-1 visa programs are criticized for making it possible for companies to hire foreign workers at lower wages and with fewer rights than Americans, in turn creating incentives for companies to avoid hiring Americans.
- The Durbin-Grassley bill would require H-1B and L-1 employers to pay employees the prevailing wage to ensure employers are not undercutting American workers by paying substandard wages to foreign workers.
- The Durbin-Grassley bill would require the government to provide H-1B visa holders with information about their rights.
- The Durbin-Grassley bill would require H-1B employers to provide an H-1B employee’s immigration documents to the employee upon request.
Under current law, experts argue that employers can use the L-1 program to evade restrictions on the H-1B program because the L-1 program does not have an annual cap and does not include protections for American workers. As a result, efforts to reform the H-1B program are unlikely to be successful if the L-1 program is not reformed at the same time.
· The Durbin-Grassley bill would limit issuance of L-1 visas for employees of a “new facility” to an initial period of 12 months, which can be extended after the employer demonstrates that the new facility is legitimate.
· The Durbin-Grassley bill would prohibit so-called “blanket petitions” for L-1 visas, requiring employers to submit a separate application for each L-1 visa.
- The Durbin-Grassley bill would prohibit the outplacement of L-1 visa holders.
- The Durbin-Grassley bill would establish a process for DOL to investigate, audit and penalize L-1 employers.