WASHINGTON - Within the U.S. Senate's comprehensive immigration bill is a proposal to create a database that may shed new light on H-1B hiring.
The intent of the database is to help improve the odds that a U.S. worker may get hired over a foreign worker. But the bill's effectiveness may rise and fall on fuzzy terms, such as "preference" and "good faith" hiring, and its enforcement provisions. This is where the legislative battle may be fought.
There are a string of provisions in the Senate's bill its proponents say are intended to help U.S. workers. One is a requirement for the government to create a national database of jobs that employers want to fill with H-1B workers. U.S. workers will be able to apply for those jobs, which will be posted for 30 days. Employers are also barred "from recruiting or giving preference" to visa workers over U.S. workers.
The tech industry is concerned that the immigration bill's recruitment and database provisions may extend the amount of time needed to hire an H-1B worker, and, more broadly, increase the risk of litigation and government oversight.
The final shape of the Senate's comprehensive immigration bill is now being set. The Senate Judiciary Committee is due to meet Thursday to begin considering a series of amendments to the bill. This is expected to take several days.
H-1B critics are already skeptical about the bill, which raises the base H-1B cap from 65,000 to as high as 180,000, based on a market adjustment provision.
There "is no enforcement mechanism," in the bill, said John Miano, who founded the Programmers Guild, an organization that has long been at odds with the H-1B program. He can point to history to back up his view.
Under present law, H-1B dependent employers are required to make a "good faith" effort to hire a U.S. workers. Good faith means U.S. workers "must be given fair consideration for jobs," according to the U.S. Dept. of Labor.
An "H-1B dependent" firm is one that has 50 or more employees, of which 15% or more are on H-1B visas. But H-1B dependent firms, which include large offshore outsourcing firms, hire thousands of visa workers, despite the "good faith" provisions.
There are loopholes for getting around the good faith requirement. If an H-1B worker earns more than $60,000 a year, or holds a master's degree, they are exempt from the good faith provision.
"The new recruitment provisions are completely meaningless," said Miano.
Daniel Costa, an immigration policy analyst at the Economic Policy Institute, says the immigration bill only requires non H-1B dependent employers to "recruit" by using the proposed Labor Dept.'s database. A good faith effort isn't required.
Top H-1B visa approvals Q1-Q2 FY2013
Approvals for new H-1B visas from Oct. 2012 through March 2013. Source: Computerworld analysis of U.S. Citizenship and Immigration Service data. Some company divisions were combined, such as IBM Corp. and IBM India, Tata consulting and engineering groups, etc.
"I think it's crazy not to require that all employers do good faith recruiting," said Costa. "If the tech companies are truly recruiting U.S. workers like crazy as they say they are -- then why do they object to proving that they're already doing what they say they're doing?"
In an amendment filed Thursday, U.S. Sen. Chuck Grassley is seeking "good faith" recruiting for all employers.
Costa believes the government's hiring database will improve prospects for U.S. workers, "because they can at least see where the jobs are."
But Costa also cites the enforcement issue as a sticking point. How will the Labor Dept. ensure that employers have followed the law? "Will US workers be able to file lawsuits? That's not clear yet," said Costa. "It also has to be enforced in a way that doesn't dictate who an employer should hire, but that also protects U.S. workers from clear discrimination and preference for hiring an H-1B worker."
An intent of the H-1B program is enable employers to quickly hire someone, and 30-day window "will push up the timing of your recruitment," said Jorge Lopez, co-chair of littler Mendelson's Global Mobility and Immigration practice.
Employers applying for a green card are required to advertise for the job and interview qualified U.S. candidates under a good faith process. That green card process is also subject to an audit by the Labor Dept. It is a longer process, but firms seeking to hire an H-1B worker typically want someone quickly, said Lopez.
The proposed rules in the immigration bill are "logistically creating a bottleneck in the system," said Lopez.
Susan Cohen, chairwoman of Mintz Levin's Immigration Practic, said, "The H-1B visa is designed to be as nimble as possible" for filling positions.
Both Cohen and Lopez said the employers they deal with would rather hire U.S. workers because the H-1B process is already complicated, but they do so to fill certain job needs.
In the case where an H-1B worker is making a lateral move from one company to another, the process may be completed in as fast as two weeks. With the 30-day posting period, the hiring could take six weeks, said Cohen.
Patrick Thibodeau covers cloud computing and enterprise applications, outsourcing, government IT policies, data centers and IT workforce issues for Computerworld. Follow Patrick on Twitter at @DCgov or subscribe to Patrick's RSS feed. His e-mail address is firstname.lastname@example.org.
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