H-1B and L-1 Visa Reform Act introduced in US Congress

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To reduce fraud in H-1B and L–1 visa programs, Republican Senator Chuck Grassley sponsored a new bill called the H-1B and L-1 Visa Reform Act of 2020 (S. 3770) sponsored by Republican Senator Chuck Grassley. H-1B and L-1 Visa Reform Act introduced in the US Congress to give priority to US-educated foreign workers

H-1B is a non-immigrant visa that allows companies in the US to employ foreign workers in specialty occupations that require theoretical or technical expertise. The technology companies depend on it to hire tens of thousands of employees each year from countries like India and China.

The bill not only seeks to make changes to the current H-1B and L-1 visa programs to reduce fraud and abuse within the H-1B and L visa programs, but also aims to provide protections for American workers and enforce stricter requirements for the recruitment of foreign workers. Nearly 500,000 migrant workers are employed in the US in the H-1B status.

The Visa Lawyer Blog wrote that the H-1B visa program is aggressively targeted in this new piece of legislation. First, as it relates to the H-1B visa worker program, the bill proposes changes to existing wage requirements.

The United States (US) is set to give priority to foreigners who are educated in America in issuing H-1B work visas, as an independent group of lawmakers introduced legislation in both the chambers of the US Congress proposing major reforms in skilled non-immigrant visa programs, the Statesman reported.

This was introduced by Senators Chuck Grassley and Dick Durbin in the Senate. In the House of Representatives, it was introduced by Congressmen Bill Pascrell, Paul Gosar, Ro Khanna, Frank Pallone, and Lance Gooden.

The H-1B and L-1 Visa Reform Act, as introduced in the House of Representatives and Senate, will require US Citizenship and Immigration Services to prioritize for the first time the annual allocation of H-1B visas.

The new system would ensure that the best and brightest students being educated in the United States receive preference for an H-1B visa, including advanced degree holders, those being paid a high wage, and those with valuable skills, according to the lawmakers who are proponents of this major legislative reforms.

“The legislation reinstates Congress’s original intent in the H-1B and L-1 visa programs by increasing enforcement, modifying wage requirements and securing protections for both American workers and visa holders,” the lawmakers said on Friday.

This newly introduced legislation, among other things, explicitly prohibits the replacement of American workers by H-1B or L-1 visa holders, clarifying that working conditions of similarly employed American workers may not be adversely affected by the hiring of an H-1B worker, including H-1B workers who have been placed by another employer at the American worker’s worksite.

The VLB website further wrote that the law would require employers to pay the highest wage from three categories:

1) the locally determined prevailing wage level for the occupational classification in the area of employment

2) the median average wage for all workers in the occupational classification in the area of employment; or

3) the median wage for skill level 2 in the occupational classification found in the most recent OES survey.

Second, the bill would make changes to current law and require U.S. employers seeking to hire H-1B workers to publish job postings on a website established by the Department of Labor. After filing the labor condition application, the employer would be required to post the job on the website for at least 30 calendar days. The job posting would have to include a detailed description of the position, including the wages and other terms and conditions of employment, minimum education, training, experience, and other requirements for the position, as well as the process for applying for the position.

Third, all H-1B employers would be required to prove that they have tried to recruit American workers for jobs offered to H-1B workers. Under current law, only H-1B dependent employers (those with more than 50 full-time employees of which at least 15% are H-1B employees) are required to recruit American workers for H-1B positions. This would be a drastic change in the law creating additional burdens for U.S. employers seeking to hire foreign workers with specialized skills.

Fourth, the bill would expressly prohibit the replacement of American workers with H-1B workers.

Fifth, the bill would change current non-displacement provisions. Under current law, employers may not displace American employees within a 90-day period before or after applying for H-1B visas.  The new bill would increase this period of time to 180 days before and after the date the H-1B worker is placed at the worksite. The purpose of this provision is to prevent outsourcing or leasing of H-1B workers to other employers, but there is a possibility under this bill for employers to seek a waiver of the outsourcing prohibition if they can show that no U.S. workers will be replaced as a result and the worker will not be a de facto employee.

Furthermore, the new bill would prohibit employers from placing job advertisements for jobs that recruit only H-1B visa holders or that indicate that H-1B visa holders will be given preference in the hiring process.



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