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"Protect & Grow" Targets H-1B Employers & Wages

Bridge Team Member

The House Judiciary Committee has approvedlegislation intended to reform the high-skilled H-1B visa program. The bill, entitledthe Protect and Grow American Jobs Act (H.R. 170), was approved on Nov. 15, 2017 and its statedintention is to: help prevent the outsourcing of Americanjobs.

Because of how new this legislation is,it’s difficult to say exactly how passage of the bill could affect employers whoare dependent on H-1B workers. However, it’s important to keep in mind that, atthe time of reporting, this bill is not law.

Protect and Grow wasintroduced by the chairman of the Subcommittee on Courts, Intellectual Propertyand the Internet, Darrell Issa, R-Calif., and, at the time of reporting, itremains just that – a bill that’s been reported out of committee. It must nowpass in identical form through both the House and Senate before it lands on PresidentTrump’s desk.

Prevailing Wage v. Undermining Wage

The Protect and Grow legislation’s proposedchanges to the H-1B program are intended toprevent those employers who rely on H-1B workers from “undermining the wages of American workers” by bringing in foreignemployees to replace them at lower salaries. One standard set by the H-1B visaprogram itself, however, is that H-1B workers must be paidthe prevailing wage for the work they do. In other words, H-1B workers must be paidwages that at least match the wage level that employers would pay other workerswith similar qualifications and experience.

The Pew Research Center’s recent analysis of U.S. Citizenship and Immigration Services (USCIS) data forfiscal year 2016 found that U.S. employers planned a median salary of $80,000for their high-skilled H-1B employees. It’s been difficult to monitor suchsalary statistics because this is the first time the U.S. government has madethe information available to the public.

This median salary of $80,000 for H-1Bemployees slightly exceeds the median salary of $75,063 reported for U.S.workers in computer and mathematical occupations – fields that 60 percent ofH-1B applicants seek employment in. Many topH-1B employers pay much more than median wage to their H-1B workers. Statisticsindicate that most employers highly value this nonimmigrant talent pool and arenot in the business of funneling in cheap labor.

Consider USCIS Fraud Statistics

It’s interesting to note that thelatest comprehensive USCISfraud and compliance assessment related to the H-1Bprogram (2008) doesn’t significantly strengthen the notion that rampant fraudis afoot. Here’s an overview of some of the report’s key findings:

     - Those firms with 25 or fewer employeeshave higher rates of fraud

     - Firms with fewer than 10 years inbusiness have higher incidence of fraud

     - H-1B positions that aren’t related tomath and technology are more likely to have higher fraud rates

The larger, well-established H-1Bdependent employers – employers that the Protect and Grow bill has focused onfor reform – don’t factor prominently in these statistics.

What Comes Next?

The problem with the current H-1B visaprogram, as perceived by Protect and Grow, is that the pertinentregulations were adopted in 1998 and aren’t keeping up with current realities.These regulations span several important and interrelated themes:

    1) Companies that are H-1B dependent (15 percent of their workforceis comprised of H-1B workers) must recruit U.S. workers before petitioning forH-1B workers and must first hire all those Americans who both qualify and apply

     2) H-1B dependent Companies mustn’t lay off U.S. workers and replacethem with H-1B workers (within a specific timeframe of the H-1B workers’employment)

     3) Either of the first two regulations can be avoided if the H-1Bworkers in question will earn at least $60,000 annually or have at least a master’sdegree

Because the $60,000 benchmark hasn’tbeen updated since 1998, the Protect and Grow bill’s proponents point to it asa regulatory loophole.

The new bill would demolish anyexceptions to the regulations against swapping out H-1B workers for Americanemployees and would lengthen the policy against American worker layoffs for thependency of the H-1B workers’ employ. Finally, the Protect and Grow billcompletely revamps the outdated salary requirement by implementing both asalary floor of $90,000 and a requirement of at least the average wage for thespecific occupation, which already seems fairly well covered in the prevailingwage requirement.

Employers of H-1B workers, stay tuned!We’ll bring you updates as this bill makes its way through Washington.

Should you have any questions about how this impacts your business or employees, please do not hesitate to reach out to us at support@bridge.us.

Disclaimer: This content is not a form of legal advice and should not be treated as a substitute for legal counsel. Bridge US encourages readers to discuss any and all immigration-related concerns with an attorney.

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