hoopla over Durbin-Grassley bill

Date: Wednesday, April 22, 2009 11:50 PM

<<<<< JOB DESTRUCTION NEWSLETTER No. 2011 -- 4/22/2009 >>>>>

Rumors are spreading that Senators Durbin and Grassley may reintroduce their
"H-1B and L-1 Visa Fraud and Abuse Prevention Act of 2007" (S.1035).
A recent Politico article titled: "'Americans first' gaining traction"
might be somewhat of an exaggeration since the bill hasn't been introduced
yet. How can it gain traction if nobody has seen it? A more accurate name
might be: "Hoopla over Durbin/Grassley bill getting out of control".

A legislative update from FAIR is included below because it is far more
accurate than Politico.

Since nobody has seen the new bill it's too early to pass judgment. If it's
anything like the original 2007 bill there is nothing to get excited about, so
keep your pants on! The original bill didn't do very much in terms of
reforming H-1B and L-1 visas.

Of course we would have been happy to have even a few incremental improvements
but the problem is that nobody in the Senate felt that way.
The bill languished with no co-sponsors until it died on the vine like an
unpicked tomato. Durbin and Grassley got way too much credit for being
champions of American high tech workers. Every tech and programmer association
but this newsletter was falling over these two politicians like they were the
second coming of Samuel Gompers.

Expect similar feelings of euphoria if the bill is reintroduced, and don't be
surprised when the results are the same.

About the only substantial improvement their previous bill would have
accomplished is to make it slightly tougher for companies to cheat the
prevailing wage regulations. It did nothing in terms of decreasing the numbers
of H-1B or L-1 visas, so market forces such as labor arbitrage are allowed to
force prevailing salaries lower. Both Durbin and Grassley said they supported
raising the H-1B cap after they introduced the bill because, according to
them, Americans will be protected from harm once their bill becomes law. Yeah,
right!

One of the things many people liked about having the D/G bill in the Senate is
that they could accost their senator in town hall meetings in order to ask
them why they haven't signed onto the bill. It provided lots of entertainment
watching those senators dance around the question.
Entertainment value might be one reason to help to get this bill reintroduced.
It also had media value, since Durbin and Grassley were able to get on shows
like Lou Dobbs to talk about H-1B.

Predictably the open border crowd is trying to accuse Durbin and Grassley of
exploiting protectionist paranoia over jobs. Gee, why would anybody be
paranoid about the continuing loss of high paying jobs? In addition to errors
in fact, Politico treats us to the ridiculous idea that H-1Bs create jobs for
Americans. Ever since Stuart Anderson made that stupid NFLP study the press
just can't stop using it.

Such measures are "protectionist and self-defeating," Goldman Sachs
Chairman and Chief Executive Officer Lloyd C. Blankfein said
recently, because the highly skilled foreign workers help create new
jobs that are especially needed during this recession.

The cheap labor and open border advocates claim that Comprehensive Immigration
Reform would silence the restrictionists. Actually CIR will incite hysteria
and anger since it will undoubtedly contain a massive guest worker increase,
but those types of facts are of course ignored by the corporatists and
leftists at Politico:

the vacuum created by Washington s failure to enact comprehensive
immigration reforms has given immigration restrictionists room to
sharply question whether foreign workers have better job security.

Politico lefties aren't being realistic because there is nothing to stop
Durbin and Grassley from amending CIR with their reform bill. They offered it
last time as an amendment (it was voted down) and they will probably do it
again.

There is a fax email you can send your Senators in support of the D/G bill if
it is ever reintroduced to the Senate. The fax is sponsored by the
Californians For Population Stabilization and you can send it by going
here:

http://capwiz.com/caps/issues/alert/?alertid=13193381

The opening paragraph of the capwiz introduction contains the same factual
error that is in the Politico article. Fortunately the text of the fax email
doesn't repeat the error.

Bipartisan legislation from Senators Dick Durbin (D-IL) and Chuck
Grassley (R-IA) would require companies to prove that the hiring
of an H-1B foreign worker does not displace an American worker.

Unless Durbin and Grassley toughen the bill up, there is nothing that would
enforce an American first policy like what is described by capwiz. In 2007
here is what Grassley said about his own bill:

The Durbin-Grassley bill would require all employers seeking to
hire an H-1B visa holder to pledge that they have made a
good-faith effort to hire American workers first and that the
H-1B visa holder will not displace an American worker

Grassley must have said that with a big smile on his face, because anybody
that's been in office that long understands that "good faith" means nothing in
the world of law.

The H-1B law already requires employers to make a good-faith effort to hire
Americans, so D/G merely repeats what's already in the law. It's totally
redundant. Vague terms like "good faith" are used by immigration lawyers to
mean anything they want it to mean, which usually translates to something like
"how never to hire an American while being faithful to the gods of
profitability".

To come even close to requiring an American first policy, the bill must
contain a "labor market test". If you send that fax, you may want to mention
that you want a labor market test to insure Americans are considered first.
Unfortunately using H-2B and EB green cards for examples is sort of like
skating on thin ice. Both of those visas require a labor market test but they
are so riddled with loopholes the employers only have to pretend to consider
Americans first. But hey, it's better than nothing!

Of course the most important goal of this fax would be to get your Senator to
sign as a co-sponsor even if the bill is mostly useless. It's better than
nothing, which is what we got now.

On second thought -- it might be a good strategy to tell your Senator that the
D/G bill is far too weak to help American workers. Demand something much
tougher. If they believe it's weak enough they might co-sponsor it just to get
you off their backs. Reverse psychology works!

The archive has many newsletters about the old Durbin/Grassley bill. Read
these first:

2007-04-09 H-1B Reform Is In The Air (Can you smell it).htm
2007-04-05 hoopla over DurbinGrassley bill to reform H-1BL-1.htm
2007-04-03 Dubin's bill on H-1BL-1.htm

Go to Norm Matloff's archive. He was more optimistic about the value of the
bill so you get a different point of view.

http://heather.cs.ucdavis.edu/h1b.html

+++++++++++++++++++++++++++++++++++++++++++++++++++

http://www.politico.com/news/stories/0409/21424.html

'Americans first' gaining traction
By: Gebe Martinez
April 20, 2009 04:19 AM EST

Tapping into voters anger over growing job losses, a Senate Democratic leader
and an Iowa Republican are ready to reignite debate on a bill that would
tighten the rules for companies that hire highly educated, "specialty
occupation" foreign workers.

The "American first" proposal by Senate Majority Whip Dick Durbin (D-Ill.) and
Sen. Chuck Grassley (R-Iowa) would require companies to prove an American
worker was not displaced by the hiring of an H-1B temporary worker. The bill
also includes L-1 visas for foreigners transferring from their home offices to
U.S. facilities.

Increased oversight of H-1B visas " issued to college-educated foreigners only
when qualified Americans cannot be found " was squeezed into the economic
stimulus plan signed into law in February by President Barack Obama.

The provision, co-sponsored by Grassley and Sen. Bernie Sanders (I-Vt.),
requires any bank or company receiving federal bailout funds to look for
Americans first when hiring.

"When [Americans] lose their jobs, they should not be cast aside because
lower-cost foreign workers are available," Sanders said recently in a letter
to the Manchester Journal newspaper.

Opponents argue the small H-1B program already has labor and wage protections
for American workers and is being needlessly attacked. The stimulus bill s
provision was aimed at the banking industry, which holds less than 1 percent
of the H-1Bs.

Such measures are "protectionist and self-defeating," Goldman Sachs Chairman
and Chief Executive Officer Lloyd C. Blankfein said recently, because the
highly skilled foreign workers help create new jobs that are especially needed
during this recession.

The Durbin-Grassley bill made little progress when it was offered two years
ago, but the "American first" sentiment has gained traction as unemployment
rises and attention is paid to the outsourcing of American jobs.

Also, the vacuum created by Washington s failure to enact comprehensive
immigration reforms has given immigration restrictionists room to sharply
question whether foreign workers have better job security.

In a sign that companies are not abusing the system, the visa application
period that began April 1 showed a major decrease in new H-1B requests, in
line with the economic downturn.

It has taken weeks to reach the 65,000 annual cap for new H-1Bs. (Another
20,000 visas are issued to advanced degree holders.) By contrast, the cap was
reached in the first and second days of the 2009 and 2009 filing periods "
unusually early " according to the U.S. Citizenship and Immigration Services.

Microsoft Corp., which currently has 1,038 H-1B visa employees " the fifth
largest number " reduced its petitions. The company wants to hold onto its
current visa workers to avoid losing them to a foreign competitor, an official
said.

Still, reports of fraud are up.

In February, federal authorities arrested 11 people in seven states in a visa
and mail fraud probe. Foreign workers were allegedly hired for technology jobs
in Iowa that were not federally certified; some were not paid, while others
got Iowa s prevailing wage but were sent to other states with higher wage
scales.

Suspected fraud and reduced demand for H-1Bs prompted Texas Rep. Lamar Smith,
the House Judiciary Committee s senior Republican, to withdraw his plan to
raise the visa cap from 65,000 to 195,000, which had been the limit from 2001
to 2003.

Political pressure to hire Americans and lay off foreigners led Wells Fargo &
Co., a major recipient of the bailout money, to review its current and future
needs for visas.

Others are pushing back.

Goldman Sachs has about 200 H-1B employees, Blankfein said at a recent meeting
of the Council of Institutional Investors. "But we have 2,000 employees who
are working overseas and pay U.S. taxes. Do we want to invite other countries
to take punitive measures against us?"

Microsoft also held its ground in January when Grassley suggested in a letter
that H-1B workers be laid off before qualified Americans, as the company cuts
2,000 to 3,000 jobs over an 18-month period.

Microsoft General Counsel Bradford Smith responded that the company complies
with civil rights law and does not base its compensation decisions in the U.S.
on an employee s citizenship.

The small visa programs have little to do with the central issues of the
broader immigration debate, such as how to handle the 11 million illegal
immigrants now in the U.S., said Simon Rosenberg, president of NDN, a
progressive group seeking a broad immigration package.

But they have become the stray dogs in this political fight. "It s
irresponsible the way some members of Congress are going after this,"
Rosenberg said.

Gebe Martinez is a longtime journalist in Washington and a frequent lecturer
and commentator on the policy and politics of Capitol Hill.

+++++++++++++++++++++++++++++++++++++++++++++++++++

http://www.fairus.org/site/News2?page=NewsArticle&id=20361&security=1601&news_iv_ctrl=1721

FAIR Legislative Update - April 20, 2009

Grassley-Durbin Poised to Introduce Bill to Protect American Workers, Curb H-
1B Abuses When Congress returns to session this week, it is expected that
Senator Chuck Grassley (R-IA) and Senator Dick Durbin (D-IL) will introduce
legislation to reform the H-1B "specialty occupation" visa and the L-1
"intercompany" visa program. Under this bill, its supporters state that
employers would have to make a good faith effort to hire an American before
they hire an H-1B visa holder. In addition, the bill will include the
following: (1) provisions to ensure that job openings are better publicized,
thereby improving the chances that employers will hire American workers; (2)
new limits to curb the current practice of "leasing" or "outsourcing" of H-1B
workers to circumvent protections for American workers; (3) improvements in
how the Department of Labor (DOL) and the Department of Homeland Security
(DHS) investigate fraud and an increase in fines for any violations; and (4)
provisions that will improve information sharing between DOL and DHS.

Senator Grassley made the following statement in relation to this
legislation: "With the unemployment rate at more than 8 percent, companies
should first be looking at home for qualified American workers when filling
positions. It's well past time that reforms be made in the H-1B and L visa
program to root out fraud and abuse and ensure that American workers are given
every consideration in today's market. Our legislation will return the visa
programs back to their original intent, and reduce a company's ability to hire
foreign workers to replace qualified Americans."

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