Durbin, Grassley Introduce Legislation to Reform H-1B Visa Program

Thursday, April 23, 2009, [WASHINGTON, D.C.] – Assistant Senate Majority Leader Dick Durbin (D-IL) and Senator Chuck Grassley (R-IA) today introduced the H-1B and L-1 Visa Reform Act – narrowly-tailored bipartisan legislation that would reform the H-1B and L-1 guest-worker programs to prevent abuse and fraud and to protect American workers.

“The H-1B visa program should complement the U.S. workforce, not replace it,” Durbin said.  “Congress created the H-1B visa program so an employer could hire a foreign guest-worker when a qualified American worker could not be found. However, the H-1B visa program is plagued with fraud and abuse and is now a vehicle for outsourcing that deprives qualified American workers of their jobs.  Our bill will put a stop to the outsourcing of American jobs and discrimination against American workers.”

The Durbin-Grassley bill would mend the H-1B visa program, not end it, making reasonable reforms while not reducing the number of H-1B visas that are available.  Congress intended H-1B visas to benefit the American economy by allowing U.S. employers to import high-skilled and specialized guest-workers when no qualified American workers are available.  While initially successful, loopholes in the program have allowed foreign guest-workers to displace qualified American workers.

Some claim that the H-1B program helps to create American jobs, but it is currently being used by some companies to outsource American jobs to foreign countries.  Under current law, an outsourcing company can use American workers to train H-1B guest-workers, fire the American workers and outsource the H-1B workers to a foreign country where they will do the same job for a much lower wage.  In fact, Indian Commerce Minister Kamal Nath has referred to the H-1B as “the outsourcing visa.”

Employers can legally discriminate against qualified Americans by firing them without cause and recruiting only H-1B guest-workers to replace them.  The U.S. Department of Labor (DOL) has said:  “H-1B workers may be hired even when a qualified U.S. worker wants the job, and a U.S. worker can be displaced from the job in favor of a foreign worker.”  Some companies that discriminate against American workers are so brazen that their job advertisements say “H-1B visa holders only.”  And some companies in the United States have workforces that consist almost entirely of H-1B guest-workers.         

To address these problems, the Durbin-Grassley bill would, among other things:

• 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.

Under current law, it is very difficult for the federal government to monitor the H-1B and L-1 visa programs.  For example, the Department of Labor (DOL) is only authorized to review applications for “completeness and obvious inaccuracies.”  DOL does not have the authority to open an investigation of an employer suspected of abusing the H-1B program unless it receives a formal complaint – even if the employer’s application is clearly fraudulent.  Even if there is a complaint, the Labor Secretary must personally authorize the opening of an investigation.  DOL’s Inspector General has concluded that the H-1B program is “highly susceptible to fraud.”

To address potential fraud, the Durbin-Grassley bill would give the government more authority to conduct employer investigations and streamline the investigative process.  For example, the bill would:

• Permit DOL to initiate investigations without a complaint and without the Labor Secretary’s personal authorization;

• Authorize DOL to review H-1B applications for fraud;

• Allow DOL to conduct random audits of any company that uses the H-1B program;

• Require DOL to conduct annual audits of companies who employ large numbers of H-1B workers.

The L-1 visa program allows companies to transfer certain employees from their foreign facilities to their U.S. offices for up to seven years.  Experts have concluded that some employers 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 even the minimal labor protections of the H-1B program.  As a result, efforts to reform the H-1B program are unlikely to be successful if the L-1 program is not overhauled at the same time.  The Durbin-Grassley bill would institute a number of reforms to the L-1 visa program, including establishing for the first time a process to investigate, audit and penalize L-1 visa abuses.

Durbin and Grassley introduced a similar bill last Congress.