The Senate immigration bill reforms high-skilled components of the immigration system, and introduces a couple of new provisions and pathways. Concerning legal permanent immigration reforms, for example, the legislation will adjust employment-based green card categories and create exemptions from the caps for individuals with extraordinary abilities in the sciences, arts, education, business, or athletics, as well as outstanding professors and researchers, STEM field doctoral degree holders, and certain physicians. To be clear, individuals in exempt categories are not counted towards any of the annual visa caps. Additionally, the bill creates a new merit-based visa designed for talented individuals that would award points based on education, employment, length of residence in the U.S., and other considerations.

Regarding temporary nonimmigrant high-skilled provisions, the legislation reforms the H-1B visa program by increasing the current visa cap from 65,000 to 110,000 per year. In subsequent years, a High Skilled Jobs Demand Index will be used to calculate annual changes to the visa cap, although the most the cap can increase or decrease each year is by 10,000 and the maximum cap is 180,000 visas annually. The bill raises the current 20,000 visa exemption for U.S. advanced degree holders to 25,000. H-1B visa holders whose employment relationship is terminated before the visas expire would be allowed a 60-day transition period to seek other employment or extend or change their status. The bill also allows work authorization for spouses and children of H-1B visa holders. Students who come to the U.S. for bachelor’s degree programs or above may obtain dual intent visas.  Furthermore, the bill places limits and additional recruiting and wage requirements on companies whose workforce is more than fifty percent dependent on H-1B workers. Specifically, the bill would add a recruitment requirement for all H-1B applications stipulating that employers would be required to advertise the position on a Labor Department website for at least 30 days and offer the job to any U.S. worker who applied and is equally or better qualified than the immigrants or nonimmigrants sought.

Considering the research on high-skilled immigration and its effects on the national and local economies:

What will be the effects nationally and locally of these reforms to temporary non-immigrant and permanent high-skilled immigration, and does the bill do enough?

Do the proposed reforms strike the right balance between allowing employers to efficiently hire the talent they need while providing adequate protections for workers and alleviating abuses?

Are the recruitment and wage requirements effective methods for streamlining the hiring process for employers while protecting employees?

If not, what would be suggestions for reforming the recruitment and application process?

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  • Sia

    The retrogression in EB3 and EB2 categories should be resolved. Applicants should not be discriminated on the basis of their nationality. If employer is willing to sponsor a GC there is no need for an artificial barrier. Also, apart from STEM there are other professionals who benefit the economy equally like health sciences (nursing, physiotherapist, pharmacist etc.), business management graduates etc.; they should not be overlooked just because they don’t have as many lobbyists representing them. Also, H4 workers should be allowed to work from day one. Why should a person who is legally present in country not have right to work?

    • http://immigrationimpact.com/author/paul-mcdaniel/ Paul McDaniel

      Thanks, Sia. What are some other specific ideas you have for reforming some of these components of immigration? For example, in what ways would you suggest we change the current provisions for facilitating healthcare workers such as primary/family care physicians and nurses to work in particular shortage areas? What are your other thoughts on the proposed new merit-based visa for permanent immigration?
      Additionally, the H-1B reforms in the new bill would allow work authorization for spouse of an H-1B visa holder if the person’s country of origin has a reciprocal agreement, that is if that particular county allows work authorization to the spouse of a U.S. national working there on a similar employment-based visa.

  • Ben

    I understand the concerns that are driving the requirement for employers to prove they have made an effort to recruit native workers, and that they aren’t paying H-1B workers less. Nobody wants a situation where employers are able to bypass the US labor force and hire exclusively through the immigration system in order to pay workers less. The problem is that the research evidence suggests that this isn’t a wide spread problem. Wages in the sectors that are primary users of these visas are going up, and unemployment in those areas is at or around 4%. If the evidence indicates that native workers aren’t being displaced and that foreign workers aren’t depressing wages, what is the rationale for requiring all employers to submit to more statutory requirements on recruitment and wages? It seems to me that the solution to the concerns about recruitment and wage abuse ought to be pursued through enhanced enforcement rather than adding more complexity and bureaucracy to the statutory process. The goal of programs like H-1B is for employers to have access to global labor markets in key high skilled sectors in order to promote global competitiveness and spur innovation and ideas. If we grind the immigration process to halt by adding more bureaucracy on the front end, rather than more enforcement on the back end, we will end up punishing all employers because of the actions of a few bad actors…and along the way will have undermined the entire purpose of the program.

    • http://immigrationimpact.com/author/paul-mcdaniel/ Paul McDaniel

      Thanks Ben. Do you feel the provisions in the bill are adequate to address the needs of employers and workers for immigrant and nonimmigrant pathways and do these provisions address geographic demand of particularly places throughout the country? What additional recommendations do you have for high-skilled provisions in the Senate immigration bill?

  • LOBJH

    The proposed CIR statute would remove graduates of U.S. universities with advanced degrees in STEM areas from the immigrant visa caps; thus avoiding potential backlogs for these people. I expect this will incentivize foreign national students to go into U.S. STEM graduate study programs in greater numbers, and U.S. employers should be able to benefit from this enhanced supply of higher-level STEM talent. This is good.

    However, I see a potential concern in that many of these advanced degree STEM graduates will be pursuing jobs in the U.S. in occupations the Department of Labor’s O*NET library classifies as “Job Zone 4″ e.g., many engineering and IT positions. So, when U.S. employers file PERM labor certifications for this group of talented people, the DOL may subject a significant percentage of these cases to business necessity audits and subsequent denials. In effect, DOL will stand in the way of Congress’s intent for U.S. employers to be able to benefit from the way this statute is supposed to work, making this portion of CIR ineffective. Accordingly, I would suggest that this portion of CIR should appropriately rein-in the DOL and their administration of the PERM program so this does not happen.

    • http://immigrationimpact.com/author/paul-mcdaniel/ Paul McDaniel

      Thanks for your thoughts and observation on this particular area of the bill. What would you specifically suggest as action steps to alleviate the concern about effectively implementing the intent of the statute?

      • LOBJH

        DOL recently reported that 45% of all PERM cases filed are audited. Of those, a substantial portion are ultimately denied. This problem arises from the DOL holding form over function when it comes to their administration PERM program; failing to employ judgement and failing to exercise reasonable discretion as an adjudicative agency. One way they do this is by blindly relying upon the very limited and antiquated O*NET library for what they consider “normal” minimum requirements for given occupations; which leads to the problem here.

        Exempting EB-2 advanced STEM degree cases from the PERM requirement would likely be the best and most logical remedy. Perhaps this could be done by CIR deeming such cases to be shortage occupations in the U.S. (like “Schedule A” sheepherders are) Or, CIR could require a different legal standard to these cases whereby the employer – and not the DOL – has the discretion to determine the minimum requirements for the position as a business decision based upon bonafide market metrics (though that solution lacks a bright-line test, which will no doubt result in agency-level litigation on appeal). Another solution, though the least attractive one, would be to redefine the “normal” requirements in the O*NET so they are realistic, and truly and objectively “real world.”

        • http://immigrationimpact.com/author/paul-mcdaniel/ Paul McDaniel

          Thanks for your comments and suggestions. On another section of the bill, what are your thoughts on the proposed High Skilled Jobs Demand Index (for use in determining changes to the annual H-1B visa cap) formula’s use of Bureau of Labor Statistics’ “management, professional, and related occupations” category for the unemployment variable? Also, what are your thoughts on the bill’s changes from the four wage level structure to three wage levels?

          • LOBJH

            I haven’t looked deeply into that issue yet. But, from what I saw of
            the changes to the H-1B program in the bill , I am concerned that in
            Congress’s apparent zeal to go after companies who abuse the program,
            they are making the program less usable (or unuseable) to employers who
            do not abuse the program; particularly small employers. It comes off
            like an across-the-board punishment for the sins of a few (who also
            happen to consume the lion’s share of available H-1Bs each year).

            While I think a mechanism to float the cap based on market forces is a
            good idea, I am concerned that the bill’s call for jacking up the
            prevailing wage for H-1B positions, and requiring prior recruitment of
            U.S. workers (at the inflated prevailing wages) will debilitate
            usability of the program, making the hitting the cap a lesser concern. I
            think it is misplaced. This may also have a backfiring effect,
            increasing downstream costs to consumers to the point that off-shoring
            may be the more cost-effective solution to remain competitive with
            overseas competition; which is precisely what we do not want to see.

          • http://immigrationimpact.com/author/paul-mcdaniel/ Paul McDaniel

            Thanks again for your comments. It appears that what the bill does regarding H-1B provisions is, like many other sections, a comprise: an attempt to balance an increase in visa numbers with an increase with greater protections against fraud. I wanted to share the following Brookings article, which presents a balanced view of the Bill’s changes to the H-1B program and recommendations related to flexibility, precision, and place-based factors: http://www.brookings.edu/research/articles/2013/04/18-h1b-visa-immigration-ruiz-wilson

  • http://www.antidrudgereport.com jay pounders

    I think the H-1B visa program could prevent much of the fraud and mis-use of the program simply by requiring ALL petitioners to obtain a Prevailing Wage Determination from the Dept. of Labor before filing the Labor Condition Application in connection with each H-1B petition. This would prevent employers and/or their agents from “job-shopping” through the OES online wage survey database looking for job titles and/or wage levels that allow them to get LCAs certified based on the employers’ attestations that they’ve made a good-faith effort to identify the appropriate prevailing wage. At the very least, all H-1B extensions should have to meet a wage level II or IV for any occupational title in the OES in order to be certified.

    • http://immigrationimpact.com/author/paul-mcdaniel/ Paul McDaniel

      Thanks for your comments. What do you think of the Senate bill’s changes to H-1B wage level criteria from the current four wage levels to a proposed three wage level system?

      • http://www.antidrudgereport.com jay pounders

        I haven’t read that much about the changes to the OES wage levels but requiring PWDs from the DOL would prevent employers from abusing the system by choosing artificially lower levels than what might be appropriate, regardless of how many levels there are from which to choose the prevailing wage.

      • Rob Cohen

        Paul.

        I’m not a statistician, but I tried to figure out the impact of a change to the 3 tier system, calculated based upon the mean of the bottom 2/3 and the top 2/3 for levels 1 and 3, respectively. I suspect that this calculation will both narrow the range of the wage determinations and increase level 1. I don’t understand the policy imperative for this change. If the purpose of the prevailing wage requirement is to ensure employers are not seeking cheap foreign labor to the detriment of US workers, it would appear that the goal of the prevailing wage determination would be to find the appropriate market rate. Current law seeks to do this. While the determination of the market rate is not an exact science, I don’t see this change as getting closer to the policy objective. Instead, it appears to suggest that the policy is if an employer wants to hire foreign talent, the employer will simply be required to pay a higher salary than necessary for the same position if
        filled by a US worker. My basic instinct is that this is unfair. It would be unfair to permit a foreign worker to be paid less, and it seems equally unfair to require the foreign worker be paid more than a similarly situated US worker.

        In 2008, when the economy took a dramatic turn for the worse, many companies sought to shave a little off of each employee’s salary to avoid layoffs. Many felt this was a noble effort to save jobs, but H-1B employees were exempted from the decrease because of the LCA requirements. Because employers lost the ability to cut all wages equally to save jobs, there were many who simply laid off the least productive employees, often US workers. This was clearly an unintended consequence of the LCA rules. It appears to me that this dual wage system for foreign workers and US workers could lead to a lot of unintended consequences. I don’t
        understand the policy behind the effort to artificially increase the prevailing
        wage determination above market rather than seek to create a system in which
        the prevailing wage accurately reflects the market.

        • http://immigrationimpact.com/author/paul-mcdaniel/ Paul McDaniel

          Thanks Rob. You make some excellent points. Indeed, just as it would be unfair for an employer to pay a foreign worker less than an equivalent American worker, it would also be unfair to require an employer to pay a foreign worker more than they would pay an equivalent American worker. As the current and proposed provisions stand, it seems we need a much more precise understanding of labor market demand and wages in particular areas. Place-based analyses based more on the geography of demand may also be useful. But a dual wage system for foreign workers and U.S. workers may not only be cumbersome, but lead, as you said, to unforeseen and unintended consequences.

    • http://www.davisbrownlaw.com/ Lori Chesser

      As an immigration attorney filing H-1Bs for 20+ years, I see a couple of problems with this. First, DOL takes 60 days to provide a PW determination. H-1Bs are almost always time-sensitive, which is why we have to take a risk and use OES or a survey. It is a risk because DOL can always audit and decide that we chose incorrectly. If a PWD was mandated, the bill would also need to mandate the response time. Second, PWDs are often questionable and the process for challenging them is cumbersome. Now that the process is centralized, there is no chance to have a conversation with DOL about why they are classifying as they are. I find that many of my employers have to pay H-1Bs higher than their US workers, which is really a crazy result. They do it because they really need the skill set the person brings. This is another example of how trying to foil the abusers – rather than just prosecute them – makes trouble for the good employers.

      • http://immigrationimpact.com/author/paul-mcdaniel/ Paul McDaniel

        Thanks Lori. What specific recommendations would you make concerning the provisions and proposed changes the Senate bill is making to the H-1B program?

  • http://twitter.com/LoraBartlett Teacher Migration

    Public schools currently use H1B visas to hire teachers – especially math, science and special education teachers in urban public schools. One of the main challenges they face is the timing of H1B visas. The October start date falls after the start of most school years. This has lead some school districts to hire teachers with J1 visas when the H1B is more appropriate. How will the immigration reform address the need to offer more flexible start dates for some highly skilled occupations like teaching?

    • http://immigrationimpact.com/author/paul-mcdaniel/ Paul McDaniel

      Thanks for your comment and perspective. This is an interesting example the system and reforms will need to address to increase hiring flexibility.