Date: Tue, 13 Jul 2010 22:56:27 -0700 From: Norm Matloff To: Norm Matloff Subject: another Grassley/Sanders amendment To: H-1B/L-1/offshoring e-newsletter Some of you may recall that Senators Grassley and Sanders successfully sponsored an amendment to the TARP legislation last year, placing restrictions on the hiring of H-1Bs by bailed-out financial institutions. Even though there were loopholes, including one that even I didn't notice originally (and which I think the authors weren't aware of either), I considered the legislation to be quite significant. It implicitly carried the message that H-1B is abused by mainstream companies, a message Congress had never sent before. Now Sanders and Grassley, along with fellow Senators Harkin and Tester, have introduced amendment S.AMDT. 4438 to the Small Business Lending Act. You can read the full text at http://thomas.loc.gov/ (plug "S.AMDT. 4438" to the Bill Number search engine). It basically bans companies that engage in a "mass layoff" (see http://www.doleta.gov/programs/factsht/warn.htm for the definition) from sponsoring employees for work visas. This looks to be considerably stronger than the anti-layoff provision in the H-1B-dependent employer law, which only applies to layoffs of U.S. workers who are "similarly employed" as the H-1Bs, a phrase which opens a huge loophole. Of course, the current amendment is not without its own loopholes. Employers could still hire foreign students under the Optional Practical Training (OPT) portion of their F-1 student visas, because these are self-petitioned, not employer-petitioned. Since the Bush administration extended OPT from 12 to 29 months (later backed up by the Obama administration when the Programmers Guild sued to block the extension), an employer could hire a recently-graduated foreign student and employ him/her for almost 2 1/2 years, even if the employer had engaged in a mass layoff. The employers could also replace Americans with H-1Bs from bodyshops, again since the employer is not doing the petitioning. So the amendment is not airtight (the loophole in the TARP amendment was also related to OPT), but still excellent. It's interesting to see Sen. Harkin involved. He was quite outspoken against H-1B in 2000, but to my knowledge had not said anything at all since that time. Norm