Senators begin contentious H-1B battle

'Good faith' hiring for all H-1B employers rejected by Senate Judiciary Committee

WASHINGTON - The Senate Judiciary Committee rejected the idea on Tuesday of requiring all H-1B employers to make a "good faith" effort in hiring U.S. workers before taking on an H-1b worker.

The good faith amendment to the comprehensive immigration bill was offered by U.S. Sen. Chuck Grassley (R-Iowa), a longtime H-1B critic. It was opposed by the Gang of Eight, the bipartisan group of senators who drafted the immigration bill.

The "good faith" requirement was described as a "deal breaker," with the potential of sinking the entire bill, and it failed by wide margin.

The committee met all day to vote on more than 300 amendments to the immigration bill. Tech industry groups are opposing provisions, such as "good faith" that impose new requirements. The tech industry's supporters, who appear to be led by Sen. Orrin Hatch (R-Utah), will be seeking a higher H-1B visa cap and fewer regulations.

A number of Tuesday's amendments were H-1B related, including one from U.S. Sen. Ted Cruz (R-Texas), which sought to raise the H-1B cap to 325,000.

"I think high-tech immigrants are an unambiguous good for our economy and our country," said Cruz.

Cruz called the immigration's bill plan to raise the cap to as high as 180,000, "a half measure." The amendment had little support and failed. The longer discussion was around Grassley's "good faith" amendment.

Under the law today, H-1B dependent employers, companies with than more 15% of their workforce on a visa, must attest that they made a "good faith" effort to fill the job with a U.S. worker before offering it to a visa holder. Grassley wants to the "good faith" requirement to cover all employers, not just dependent ones.

Grassley was bracing for a fight, and told the committee that "some employers don't like this provision, they say they already make every effort to hire an American; well, then they shouldn't have a problem with this amendment."

But Sen. Chuck Schumer (D-NY), who is part of the eight senators spearheading the immigration bill, said the bill had to have a balance between industry and labor. In low skill market, Schumer said the hiring rules are tougher, but in the high-skilled market "we have somewhat fewer protections."

Schumer believed, however, that the protections in the bill were enough.

The proposed law requires all employers to recruit U.S. workers, and the bill proposes creation of a jobs database run by the Dept. of Labor. Employers will be required to post jobs for 30 days that they want to fill with H-1B workers.

Schumer also pointed to one requirement, however, that raises wages for H-1B workers by eliminating the lower tier of the prevailing wage. "You have to pay a higher wage to a foreign worker than you pay to an American worker," said Schumer. "That's a very strong protection."

But committee member Sen. Dianne Feinstein (D-Calif.), questioned the opposition to Grassley's amendment. "All this requires is that all H-1B employers, not just dependent employers, essentially have a good faith recruitment obligation to be able to show that they tried to recruit a qualified American worker," said Feinstein. "What is wrong with that?"

Schumer said "it sounds good on the surface," but "good faith" is an "elastic standard" that's open to interpretation and difficult to prove. Feinstein provided a backstory for her concern.

"A while back I met with a group of workers in San Diego, interestingly enough they, were all above the age of 50," said Feinstein. "They'd all been replaced by H-1B workers, and you saw it clearly. They were traditional engineers; the technology had moved on. What was seen to be desirable was the young, flexible, highly qualified techie, generally Asian in Californian, and I felt very badly for these people."

"Above the age of 50 it's very hard for an American to get another job," she said.

Schumer responded by saying that employers are not allowed to fire American workers. He didn't go into a detail, but there are non-displacement rules in the bill that prevent employers from immediately replacing a U.S. worker with a visa holder. "That's prohibited under our proposal and will not change," he said.

Sen. Sheldon Whitehouse (D-R.I.) expressed interest in supporting Grassley's amendment, but said he was told that it "would be a deal breaker to the deal," but added, "I frankly don't see how that would be the case."

The committee will return Thursday to take up more amendments on the immigration bill.

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 pthibodeau@computerworld.com.

See more by Patrick Thibodeau on Computerworld.com.

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