Senate bill gives Americans preference for tech jobs

Concerns about abuse of H-1B visas have prompted bipartisan proposal that would place restrictions on companies making foreign hires.

High-tech companies and others clamoring for additional H-1B visas to hire foreigners would be forced to give priority to American job seekers under a new U.S. Senate proposal.

Just before Congress departed for its spring recess at the end of last week, Sens. Chuck Grassley (R-Iowa) and Dick Durbin (D-Ill.) introduced a bill--which appears to be the first of its kind in the Senate--designed to curb abuse of the controversial worker visa system.

"Our immigration policy should seek to complement our U.S. workforce, not replace it," Durbin said in a statement.

Dating back to 1990, the H-1B program allows foreigners with at least a bachelor's degree in their area of specialty to be employed in the United States for up to six years. There's currently an annual cap of 65,000 visas, at least on paper, with up to 20,000 extras available for foreigners who earn advanced degrees from U.S. universities. (Various exemptions bump the total allotment to just above 100,000.)

"Our immigration policy should seek to complement our U.S. workforce, not replace it."
--Sen. Dick Durbin (D-Ill.)

The 32-page Senate bill would impose a host of additional obligations on employers. They would be required to pledge that they made a "good faith" effort to hire an American before taking on an H-1B worker and that the foreigner was not displacing a prospective U.S. worker.

Employers would also have to advertise job openings for 30 days on the Department of Labor's Web site before making H-1B visa applications, and they would be prohibited from advertising positions only to H-1B holders.

In addition, companies with 50 or more workers would not be allowed to employ more than half of their staff through H-1B visas.

In an attempt to discourage employers from hiring foreigners at lower wages than their American counterparts would command, employers would have to pay all H-1B workers the "prevailing wage," as calculated by a different method that raises the minimum to a higher level than it currently stands.

The proposal also aims to beef up the Department of Labor's authority to investigate abuses, giving the department the power to conduct random audits on employers, to review applications for "clear indicators of fraud," and to hire 200 additional employees to administer, oversee and enforce the H-1B program.

Grassley described the bill as aimed at "closing loopholes that employers have exploited by requiring them to be more transparent about their hiring and...ensuring more oversight of these visa programs to reduce fraud and abuse."

The announcement of the measure's introduction on Monday coincided with the first day that companies may apply for H-1B visas. According to U.S. Citizenship and Immigration Services, the limit was reached in fewer than two months last year. The agency said Tuesday that it had already received enough petitions--some 150,000 by Monday afternoon--to meet this year's cap and would not accept new applications until next April.

High-tech industry trade groups have long said the H-1B system is critical to relieving shortages of qualified U.S. workers and have called for its expansion. Microsoft Chairman Bill Gates, in fact, recently revived his push for unlimited visas, though he said improving the U.S. educational system is also vital.

Many members of Congress from both parties have been receptive to those suggestions, but their attempts at passing quota hikes have been met with mixed success in recent years.

One recent effort, a sweeping House immigration bill introduced in late March by Rep. Luis Gutierrez (D-Ill.), would raise the H-1B cap to 115,000 in the first year and permit further increases if the quota is met in subsequent years, not to exceed 180,000. High-tech interests have endorsed the proposal, but critics say the bill is particularly worrisome because it also includes a number of broad exemptions, thereby allowing the effective number of eligible foreign hires to grow by an untold amount.

Groups such as the Programmers Guild and IEEE-USA that represent American programmers and engineers argue that it's far more important to remedy the existing system. They say it's riddled with abuses that make it possible for firms to hire H-1B workers at substandard salaries and to scrimp on recruiting Americans.

Programmers Guild founder John Miano said he is "genuinely enthusiastic" about the Grassley-Durbin effort, which he called a "comprehensive" approach that could go a long way toward fixing what critics perceive as problems with the system. Similar but narrower proposals aimed at curbing abuse have surfaced in the House of Representatives in previous years, but they have not progressed to floor votes.

"My guess is, if we had something in place like this, we wouldn't come close to using up the H-1B quota up every year," Miano said in a telephone interview.

Kara Calvert, director of government relations for the Information Technology Industry Council, said she found components of the bill "worrisome" and hoped the measure would not go anywhere. ITIC's members include Apple, Dell, Cisco Systems, IBM, Intel and Microsoft.

"The bottom line is we are not opposed to U.S. laws that prevent fraud and abuse within the immigration system, particularly within the H-1B, L and employment-based programs," she said. "Any revisions to U.S. law, however, must be carefully and narrowly drafted to avoid unintended consequences that will hinder the ability of U.S. companies to innovate."

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