Date: Tue, 26 Jun 2007 22:30:10 -0700 From: Norm Matloff To: Norm Matloff Subject: important amendment to the CIR To: H-1B/L-1/offshoring e-newsletter As you may have heard, the Senate's Comprehensive Immigration Reform (CIR) bill has been revived. Debate starts now, but will be short. Today Sen. Durbin introduced an amendment, now the McCaskill-Durbin-Grassley amendment, S.A. 1468. Its main features pertaining to foreign tech workers are: 1. Reform of prevailing wage in H-1B: Employers would be permitted to have no more than 30% of their H-1Bs at the lowest of the four official pay levels. Impact: This is a watered-down version of the provision in the Durbin/Grassley bill, but still it should be of SIGNIFICANT HELP to American programmers and engineers. According to research by John Miano, 57% of the H-1Bs are at Level I. If the amendment's version were law today, 27% of the H-1Bs would be ineligible. 2. The Dept. of Labor would determine prevailing wage, rather than the employer as is the case now. Impact: This would depend on how vigorously labor and professional groups lobby DOL during the time DOL sets its regulations to implement this new law. There could be a substantial gain for American programmers and engineers. 3. Prohibition of outplacement: Restrictions would be placed on an employer "renting out" an H-1B or L-1 to another employer. Impact: In my view (some critics of the H-1B program strongly disagree with me) this is not an issue in the first place, and the restrictions here would be easily circumvented, Note that a waiver is also allowed. 4. Requirement of advertising of a job on a DOL Web site before offering it to an H-1B: This was in the Durbin/Grassley bill. Again, it has been watered down a bit, by allowing the DOL to contract out the Web page to a private business. Clearly the emergence of TubeGate helped to propel this one. Impact: In my view, this is very important. It at least gets the H-1B jobs out in the open, where Americans can apply for the jobs and challenge the employers if they are rejected in favor of an H-1B. This could be very useful in conjunction with the "good faith effort" recruitment requirement already in the bill (see below). One concern I have is that the language does not make it clear whether the entry in the database would have to state that the employer wishes to hire an H-1B for the job. If not, then the process is less in the open than I'd like, but it still could be very useful. 5. Requirement that L-1s be subject to prevailing wage rules: Currently there is no such requirement for L-1s. Impact: Minimal, since they would be using the existing prevailing wage system, which hasn't worked for H-1Bs. This provision would be much more effective if it were to have the Level I restriction discussed above for H-1B. 6. 50-50 rule: For employers having at least 50 employees, no more than 50% could be H-1Bs or L-1s. Impact: Probably significant in the case of the bodyshops, but not for the other employers. Definitely worth having, though. The CIR bill itself appears to still contain the provision which would extend the current restriction on H-1B-dependent employers, currently a minuscule category affecting less than 1% of H-1B employers, to ALL employers of H-1Bs. Impact: Very substantial help to American programmers and engineers. It would mean that all employers would have to make a "good faith effort" to recruit Americans. Remember, at present an employer could reject all Americans even if they know of qualified and interested Americans for the job. If the provision in CIR would become law, they could not do this. This is hardly airtight, of course, because they could claim all the Americans are unqualified, etc. but in combination with the requirement to advertise the job on a national database, this could be very effective. Another impact is that employers would not be able to hire H-1Bs close to the time of a layoff. Bottom line: I strongly endorse this amendment. Needless to say, I am disappointed at the watering down here and there, but it would be the most pro-labor set of reforms in H-1B in the visa's history. It would definitely reduce the number of jobs lost to U.S. citizens and permanent residents. I hope you all call your two senators' offices and express your support (see bill name and number above). By the way, the amendment also has a provision regarding undocumented migrants. I have been refraining from discussing this issue, as I want to talk just about foreign tech labor. But if you want to know my position, here it is: I sympathize with the poor of the world, especially if they are our neighbors. I don't blame them for wanting to earn more money and improve their economic status. However, these people are not starving, and they are not desperate, as some would have you believe. I do not support amnesty or any euphemistic equivalent. On the other hand, I don't believe in punitive measures either, e.g. making illegal entry a crime. I believe the primary tool should be a tamper-proof ID card and a corresponding database which employers would be required to check. I believe that the CIR has provisions along these lines. Norm