Correction Regarding the Durbin/Grassley Bill

In reading the D/G bill for the umpteenth time late last night, I realized that I had been unwittingly skipping over Section 101(d)(2), as it was so short. (A Hill staffer also contacted me about this today.) I had earlier stated that the bill contains no provision requiring employers to give hiring priority to American workers, but in fact this section does so. The title of the section is even “Recruitment,” so it’s doubly odd that I missed it. My bad. Unfortunately, though, it really doesn’t make any difference.

As many of you know, in existing law there are two places in which employers must try to fill a position with a qualified American:

  • “H-1B-dependent” employers, defined as those with 15% or more of their workforce being H-1Bs must show they tried to recruit Americans for the job before filling it with an H-1B.
  • Employers sponsoring a foreign worker must also show they tried to hire an American first.

And as many of you also know, both of these requirements have been dismal failures:

  • The H-1B-dependent employers, such as Infosys and TCS, are staffed almost entirely by H-1Bs (and L-1s).
  • The infamous “TubeGate” videos show lawyers in a prominent immigration law firm, Cohen and Grigsby, explaining exactly how to circumvent the recruitment requirement. The videos, ironically shot by the firm as a promotional vehicle, were quite explicit in the goal. Here is an excerpt:

    And our goal is clearly, not to find a qualified and interested U.S. worker. And you know in a sense that sounds funny, but it’s what we’re trying to do here. We are complying with the law fully, but ah, our objective is to get this person a green card, and get through the labor certification process. So certainly we are not going to try to find a place [at which to advertise the job] where the applicants are the most numerous. We’re going to try to find a place where we can comply with the law, and hoping, and likely, not to find qualified and interested worker applicants.

     

I’ve shown numerous examples of this in job ads, often posted by Silicon Valley firms, over the years.

How do they do it? As Joel Stewart, an immigration attorney who literally wrote the book on the employment-based green card process, put it:

Employers who favor aliens have an arsenal of legal
means to reject all U.S. workers who apply

The employer may say, for instance, that not only is the Python programming language needed for the job, but it must be Python on a Mac, and moreover, it must be Python on a Mac with applications to the medical industry, and not only that, but it must be Python on a Mac with applications to the medical industry in Los Angeles County, and not only that but…well, you get the idea.

The language of the bill says that the employer must offer the job if the American is at least as well-qualified as the prospective H-1B hire. But as you can see, the word qualified can be manipulated every which way.

For example, I’ve mentioned the strong connection of H-1B and age discrimination. I’ve often shown examples here in which employers such as Intel have jobs earmarked New College Graduate and Recent College Graduate or similar language. That immediately makes the older American applicant unqualified. So much for giving priority to qualified American applicants! And remember, the D/G bill gives priority to foreign students in the awarding of H-1B visas, which I consider the most harmful part of the bill.

In my first post about D/G, I wrote

…as the Cohen and Grigsby videos show, the current green card process, which (unlike H-1B) already requires recruitment of American workers, is easily circumvented. This will get even worse if the current White House proposal to expand OPT is approved, as the foreign students will acquire experience in the job supposedly posted on the Internet as open to all, thus rendering the foreign students “more qualified” than the Americans. (Alas, the bill does nothing about OPT.)

These comments also apply to the bill’s recruitment requirement. Employers will hire a foreign student on OPT, and the next year, after she has special experience in the job, apply for an H-1B visa for her. She will then be “more qualified” than American applicants for the job, by virtue of the experience gained, and so employers can reject the Americans out of hand.

I endorsed  the original D/G bill in 2007, but stated clearly that I did so mainly because it proposed a very powerful reform of the prevailing wage requirement. That bill also had a U.S. worker recruitment provision, but I explained that it would be easily circumvented:

Though non-H-1B-dependent employers have not been subject to the “good faith recruitment” requirement before, the employer-sponsored green cards have always had such a requirement. Typically employers circumvent that by requiring so many special skills that the only one in the world who would qualify is the foreign national they want to hire.

Thus the best I could say for that provision was that it would have “some value” (just as I said the Internet posting requirement in the current bill would be “somewhat helpful”).  The current D/G bill also has such a provision. But as I pointed out recently, the prevailing wage reform in 2007 was the first one to be emasculated in the subsequent political negotiations, and the same is sure to occur with the current bill.

Sorry for my error, but nothing has changed about my negative assessment of the current bill.

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14 thoughts on “Correction Regarding the Durbin/Grassley Bill

  1. I don’t see it.

    3 (2) RECRUITMENT.—Section 212(n)(1)(G)(i) of
    4 such Act is amended by striking ‘‘In the case of an
    5 application described in subparagraph (E)(ii), sub
    6 ject’’ and inserting ‘‘Subject’’.

    This substitution is supposed to result in American preference?

    http://www.grassley.senate.gov/sites/default/files/judiciary/upload/Immigration%2C%2011-10-15%2C%20H-1B%20bill%20text%20as%20introduced.pdf

    Can you be more specific?

    Thanks.

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    • Subparagraph (E)(ii) is the H-1B-dependent employer section. By dropping that condition, the recruitment requirement would now apply to all employers, not just the H-1B-dependent ones.

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      • http://www.dol.gov/whd/regs/statutes/0003.iana.htm

        Presuming some of the outline labels, this is then the paragraph to be edited:

        In the case of an application described in subparagraph E)(ii), subject to clause (ii), the employer, prior to filing the application has taken good faith steps to recruit, in the United States using procedures that meet industry-wide standards and offering compensation that is at least as great as that required to be offered to H-1B nonimmigrants under subparagraph (A), United States workers for the job for which the nonimmigrant or nonimmigrants is or are sought; and has offered the job to any United States worker who applies and is equally or better qualified for the job for which the nonimmigrant or nonimmigrants is or are sought.

        So this is the text already imposed on the TCS’s?

        I’d wonder about the definition of “United States workers”, to make sure it does not include for example OPT students or H-1Bs laid off from another position.

        Otherwise, while I can see lots of troubles regarding its enforcement, I suppose it’s a good step in the right direction.

        And if TPP passes, it will be washed away like tears in the rain.

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        • The TCSs have lots of ways to reject American workers. One of them is that they use their own special software, that Americans don’t know.
          Note, though that the definition of H-1B-dependent excludes workers making over $60,000 or who have a Master’s degree. The 60K figure was set in 1998.

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  2. I had a long discussion today on this subject with another activist. When I visit legislators or their aids I am asking for the following in regards to recruiting:

    Define what constitutes a good faith effort. Posting to the DoL website is a start, but we need a feedback loop. Meaning, after the job is filled we want to know the total number of applicants, interviews conducted, EEO statistics relating to the job applicants, and EEO/visa data on the applicant hired. What good is a good faith effort if the “effort” can be posting to an obscure publication? We want more and we want actionable data.

    I want every case filed to be reviewed and a streamlined process for anyone with rights violated to have their dispute heard. Meaning no more toll free hotlines that lead to a dead end. There is no requirement that a good faith effort to review cases is required an we want that.

    I echo your views on prevailing wage. However where I don’t agree is that I think the bill if passed as is improves our situation.

    Unfortunately as we have learned bills are rarely passed as is, and there is a good chance industry will pressure Congress hours before introduced to make dramatic changes – and have their way.

    We need to ask for more. In other words let’s make our wish list of specific improvements we want and try to prioritize. Shoot for the moon! Ask for more than we want just like industry does then we meet somewhere back in the middle. As it stands now we only lose ground as the bills move forward in the process and we need to hold or gain ground for once.

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    • In my 2007 posting on the original Durbin/Grassley bill, I wrote,

      I have made such a proposal in the past myself. I believe it would be quite helpful, as it would provide public exposure of employers who are avoiding hiring Americans. The provision would be a lot better if the employers were required to state what the final disposition of the opening was, i.e. did the employer hire an H-1B in the end or not?

      Needless to say, such a provision was never added. On the contrary, a couple of subsequent bills included a far weaker provision, allowing the employers to post on Monster.com and the like.

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  3. A green card does not permit experience gained at the filing employer to be used to meet the experience requirements to move from EB-3 to EB-2. This sets a precedent in leveling the field for current verses outside candidates for a position.

    Do you think it is possible to find a way to exclude experience gained at the H-1B hiring employer from the qualifying factors for a position? This would negate the OPT effect.

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    • This would be impossible to define and enforce. Really, OPT should be disbanded altogether.

      Cathy, you and others come up with lots of solutions, many of them workable, but all of you fail to see that there is no political will to implement real solutions that would really work. I’ve some (still early) indications that the immigration reform organizations may sign on to Durbin/Grassley, and Sen. Sessions apparently already has. These people do follow my blog, so they know the problems I’ve been warning about over the years, in particular concerning legislation that focuses on the Infosyses. But there is a natural, understandable human tendency to want to support anything that validates once work, in this case meaning work toward H-1B reform.

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      • Amen, I’m not a historian but there was a president one time that told the people that “they have to make him do something”.

        I believe it was because he needed to show that the people were 100% behind him.

        This is why I continue to say that we must follow the Keep America At Work by Hiring Americans in America lobbyist group using the steps that I have outlined in this article:

        Here is the plan:

        Weekly ad in all 50 states major newspapers
        Monthly ad in all 50 states major magazines like Texas Monthly
        Daily ads on top 3 major tv stations
        Hire 1 programmer to expose the data
        Hire 1 non immigrant visa analyst

        http://keepamericaatwork.com/one-million-dollars-will-go-a-long-way-to-keep-america-at-work/

        The political will, will come from lots of exposure that the media will not give to these issues.

        But we have to make it happen.

        I know you are tired of hearing me harp on this subject, but the Calvary (in the form of our government) is NOT coming, and will not come to our rescue until we have made it impossible for them not to do so.

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        • I don’t think a lobbyist group with $1million will even make an impact. We’re talking about companies whose net worth is over a trillion dollars (GOOG + MSFT + AAPL + FB + AMZN > $1trillion). And they’ll go to any extent to protect their labor stream. Think about it. You take out an ad everyday? They’ll take one out everyday in a million magazines.

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          • Tell that to David and ask him how he was able to stop goliath.

            Seriously though, the point that I haven’t been able to make clear is this.
            These billionaires will be stopped by public perception by a public that does not yet realize what is happening just as they were in the Robber Barron Days.

            Google Triangle Shirtwaist fire
            Google MADD

            The women of America put a stop to both of these problems and many, many more that I am NOT aware of.

            Their children are once again being destroyed by corporations that do not care if they can pay their bills or not.

            The women of America will rise to the moment once they realize what is happening.

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    • @Cathy,

      >>>A green card does not permit experience gained at the filing employer to be used to meet the experience requirements to move from EB-3 to EB-2

      A side effect of this (from employer’s perspective) is that the employee that is sponsored for a greencard will be at Level-I or Level-II wages for decades. No promotions, no salary hikes.

      Don’t know how this can be a precedent in leveling the field that you think it does – It’s far from it.

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  4. Is there a push to cut off foreign student intake altogether? Isn’t that the root of the problem here? Maybe these are signs that there are a surplus of universities in the US. Peter thiel makes some interesting points on this whole craze towards getting a college education. It’s interesting to see the network effects here though. The industry wants more young H1-Bs, the universities want more foreign students to stay alive and the foreign students won’t come here unless there are job opportunities from the Intels. Seldom are H1-Bs imported directly from their home countries, it is a huge hassle (Assuming we’ve barred the Infosys’).

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