H.R. 2233 – A supposed reform to the H-1B visa program

H.R. 2233 – A supposed reform to the H-1B visa program

The H-1B visa program, created in 1990, was designed to allow U.S. employers to hire non-U.S. workers on a temporary basis thus enabling companies to fill positions for which there is a shortage of American workers. Some of the key components of the H-1B visa are that workers need to have at minimum a B.A. or specialized training for the designated job and can only be sought out if no U.S. citizen or legal resident can be recruited to fill the position. In addition the guest worker needs to be paid the prevailing wage. Finally, the number of H-1B visas is capped though the exact number of visas available has varied throughout the past years, currently it is capped at 85,000 visas (http://www.latimes.com/opinion/editorials/la-ed-visas-tech-workers-h1b-20150217-story.html; https://www.law360.com/articles/919056/immigration-bill-roundup-visa-extensions-h-1b-reforms). For more information on the specific requirements of the H-1B visa: https://www.uscis.gov/eir/visa-guide/h-1b-specialty-occupation/understanding-h-1b-requirements.

While this visa program has been regarded as a genuinely good idea it has also become prone to misuse and abuse, due to loopholes and the quest for profit. These misuses and abuses occur on both sides of the equation, some examples of which are U.S. employers intentionally skipping over American workers and filling the position with H-1B visa recipients whom they pay below the prevailing wage and foreign staffing agencies trapping individuals into debt. For information on the misuse and abuses of this visa program:  http://www.cbsnews.com/news/are-u-s-jobs-vulnerable-to-workers-with-h-1b-visas/, https://www.theguardian.com/us-news/2014/oct/28/-sp-jobs-brokers-entrap-indian-tech-workers,https://www.revealnews.org/article-legacy/visa-program-for-best-and-brightest-also-used-to-fill-low-wage-jobs/, https://www.bostonfed.org/publications/new-england-public-policy-center-policy-report/2014/demand-for-h-1b-visas-in-new-england-an-analysis-of-employer-requests-for-highly-skilled-guest-workers.aspx, http://www.epi.org/publication/h-1b-visa-needs-reform-to-make-it-fairer-to-migrant-and-american-workers/.

Due to the problems with this visa program there are and have been widespread calls for reform and a bill that would provide reform is currently under review by the House Education and Workforce Committee. Before looking at what changes this bill would create to the visa program, a quick look at the originator of the bill for some clarity on what the intentions of the bill might be.

The “American Jobs First Act” was introduced by Rep. Mo Brooks of Alabama and his opinions on Immigration stated on his, official U.S. Congress, website make one question what his intent for the H-1B visa program is – whether he truly has the best intentions for the visa program in his sights,

“[Congressman Brooks]… introduced the American Jobs First Act, which would reform     the foreign-worker visa program (H-1B visa program), a broken system which exacerbates the country’s labor shortage and depresses wages by bringing in foreign workers to compete with American workers…. Congressman Brooks believes the federal            government has been derelict in its border protection and immigration duties with both short- and long-term adverse effects. Illegal aliens receive free health care at America’s      hospitals, driving up health care costs and delaying emergency room care for American       citizens. Illegal aliens get free K-12 education, driving up education costs by requiring         more English as a Second Language instructors and reducing funds for American citizens.      Illegal aliens take jobs in the blue collar trades, causing wage suppression and denying    jobs for American workers. Congressman Brooks supports and will vote for any            substantive measure that removes illegal aliens from America”           (https://brooks.house.gov/issues/immigration).

While this succinctly states Rep. Brooks’ opinions on immigration, it is also compelling to know that he addressed the House floor in November 2016 supporting Mr. Trump’s allegations that non-U.S. Citizens voted in the election. Rep. Brooks went further stating that “tens of millions of noncitizens are a threat to register to vote, and vote, in America’s elections” (https://brooks.house.gov/media-center/news-releases/news-release-brooks-addresses-house-support-president-elect-trump). Another opinion of Rep. Brooks’ is that the solution to the high cost of health care is to “deport the illegal immigrants” and thus it is not extreme to state that Rep. Brooks seems to regard immigration as a scourge that must be done away with (https://brooks.house.gov/media-center/in-the-news/ijrcom-congressman-proposes-radical-solution-rising-cost-health-care-deport). Which brings us back to the bill he introduced and whether this bill truly is what is best for the H-1B visa program?

The main points of H.R. 2233 are as follows: “This bill amends the Immigration and Nationality Act to revise the H-1B nonimmigrant visa (specialty occupation) program, including by declaring that a petitioner employer:

  • is offering an annual wage to the H-1B nonimmigrant that is the greater of the annual wage paid to the U.S. citizen or lawful permanent resident employee who did identical or similar work during the previous two years, or $110,000, if offered not later than one year after the date of enactment of this Act;
  • will not require an H-1B nonimmigrant to pay a penalty for ending employment before the agreed on date;
  • will not replace or contract to replace a U.S. citizen or lawful permanent resident with one or more nonimmigrants;
  • has not displaced, furloughed, terminated without cause, or otherwise involuntarily separated a U.S. citizen or lawful permanent resident employee during the four-year period beginning two years before the H-1B visa petition was filed; and
  • shall attest in the H-1B application that during the previous two-year period there has not been an employee-initiated strike or an employer-initiated lockout, and that no employee in the same or substantially similar occupational classification has been displaced, terminated without cause, or otherwise involuntarily separated without cause” (https://www.congress.gov/bill/115th-congress/house-bill/2233?q=%7B%22search%22%3A%5B%22HR+2233%22%5D%7D&r=1).

These amendments to the visa program seem to make it financially unwise if not downright impossible for a company (what company has not “involuntarily separated” an employee from her or his position during a 4 year time period) to hire anyone through the visa program, thus in effect ending the H-1B visa program. While reform is needed gutting the visa program is hardly the solution.