In the face of recent attacks, which have portrayed the H-1b visa as a blight on the highly skilled but, unable to find employment U.S. worker; Mark Roberts, CEO of TechServe Alliance pens a well thought out article which describes the need for access to talented workers, defends the proper use of the H-1b visa, and, implores those legitimate users of the H-1b visa to not let your voice go unheard. There is no question that there is some abuse of the H-1b visa program but, Congressional studies commissioned by none other than the H-1b hater in chief, Senator Grassley have proven that said abuse is negligible. The IT and engineering industry will be proponents of well thought out H-1b reforms that provide for protection for the US worker and wages, while at the same time providing timely access to talent that is consistent with the fast paced demands of U.S. employers competing in a global marketplace. For Congressional reforms to be meaningful, they will need to cut through the rhetoric of fear and hate and be led by those not so easily influenced by the 1 in 1000 but, by the 999.
The week started with a 60 minutes news segment and now a Bloomberg article. Many expect the increased and widespread negative publicity to accelerate the consideration of legislation to make sweeping changes to the H-1b visa. Senator Grassley wasted no time in jumping on the opportunity to push his proposed bill. However, as we have seen with healthcare, a campaign slogan does not always equate to legislation being passed.
The shootings of two H-1b engineers near Kansas this past week, resulting in the death of one of them has saddened and stirred fear among the Indian community. We offer our condolences to his family. Many are quick to link this shooting to the nationalistic and inflammatory rhetoric which has become commonplace since President Trump began his campaign and has continued since he took office. The White House was quick to deny any link. India’s Foreign Secretary, S. Jaishankar will be in the U.S. this coming week for an official visit and has pledged to discuss this incident.
Although much of the immigration related Trump campaign for Presidency focused on “building a wall” and other enforcement issues, he did make some far-reaching comments such as “the H-1b visa should be eliminated” only to back track on that position later. He has surrounded himself with some immigration advisers, most notably, Senator Sessions who are not only opponents of illegal immigration but, also widespread critics of legal immigration. We must keep in mind not to believe everything we hear but, as information comes out about President-elect Trump’s immigration team and his planned policies on legal immigration, we will share them here. We will also share articles of interest that discuss the impact on IT staffing in general. Today’s article comes from Staffing Talk.
The U.S. Department of Labor, Office of the Administrative Law Judges (OALJ), has determined that in certain circumstances, an employer can deduct H-1B visa fees from an employee’s final paycheck.
In this case, Matter of Woodmen of the World Life Insurance Society, October 26, 2016, the OALJ determined that Woodmen Life did not violate any DOL regulation by deducting $5800 from the employee’s final payment for reimbursement of H-1B attorney and filing fees pursuant to an agreement which was entered into voluntarily by the employee.
Although the DOL found that §655.731(c)(9), which speaks to “authorized deductions from an employee’s required wage and specifically prohibits an employer from seeking recoupment of H-1B attorney fees and expenses from the required wage, even if the employee consents” was not applicable to this case since the deduction for the attorney’s fees came from the benefits side of the equation and not from the employee’s required wage, the DOL’s stated that the regulation is “far too broad and not supported by the plain language of the regulation.” The DOL further clarified that “an H-1B employer is prohibited from imposing its business expenses on the H-1B worker – including attorney fees and other expenses associated with the filing of an LCA and H-1B petition – only to the extent that the assessment would reduce the H-1b worker’s pay below the required wage, i.e. the higher of the prevailing wage and the actual wage.”
The group of information technology workers know as Save Jobs USA, who claim that they were replaced by H-1B visa holders is now appealing a decision upholding a new U.S. Department of Homeland Security rule that would allow spouses of certain H-1B workers to apply for employment authorization, the H4 EAD rule.
On Wednesday, September 28, Save Jobs filed notice that it’s appealing to the D.C. Circuit, a day after U.S. District Judge Tanya S. Chutkan of the District of Columbia found that Save Jobs lacks standing to proceed with its case. Save Jobs has argued that there isn’t “statutory authorization” for DHS to allow an H-4 visa holder to work, but Judge Chutkan said that despite the group’s lack of standing in the case, the court would likely conclude that the DHS’ interpretation of its authority under the Immigration and Nationality Act is not unreasonable and that the H-4 rule is valid.
Save Jobs basis for their appeal is the Fifth Circuit’s holding regarding the blocking of the expansion of Deferred Action for Childhood Arrivals (DACA). The Court had ruled that immigration law specifically defines the categories of immigrants allowed to work in the U.S. and that an Immigration and Nationality Act provision didn’t give the DHS the power to grant work authorization. This interpretation has been rebutted by DHS, pointing out that the cases address different questions. There appears to be no immediate danger of losing the H4 EAD Rule and those working under this authorization should continue to do so without hesitation.
On August 1, 2016, a Dept. of Labor Judge ordered ME Global Inc. to pay a former engineer almost $183,000 in back wages. The Judge determined that the employer did not properly notify immigration officials when it fired the H-1B worker in 2008. As you probably know, immigration laws require employers to notify USCIS of the termination of H-1B employees.
Judge Almanza noted that the statute of limitations clock starts on the last date the employer failed to fulfill a condition of the labor condition application and therefore ME Global had “benched” their employee, placing an H-1B worker in a nonproductive status. This meant there was a continuing violation and the employee’s complaint to the wage and hour divisions was timely as long as it was filed within one year of when he left the U.S.
This holding is just another reminder that when an H-1B employee leaves your employment you must notify USCIS and withdraw the H-1B petition your company filed on their behalf.
On July 8, 2016, Bill Pascrell Jr., Democrat – New Jersey, introduced legislation Thursday designed to “overhaul” the H1-B and L-1 visa programs. H-1B and L-1 Visa Reform Act of 2016, or H.R. 5657. The bill is being introduced under the guise of protecting workers and cracking down on foreign outsourcing companies that “take high-skill jobs away from Americans.”
Two of the more concerning provisions of the bill include: Requiring employers to conduct a labor market test before hiring H-1B workers and prohibiting companies from hiring H-1B employees if they employ more than 50 people and if more than half of their workers are H-1B and L-1 visa holders!
The bill is co-sponsored by Rep. Dana Rohrabacher, R-Calif., who previously introduced a similar version of the measure in 2010. So, hopefully like last time this bill does not gain enough traction in Congress to move forward. Nonetheless, it is still worrisome to hear that these changes are be given any kind of consideration.
Computerworld reported on a discussion in the House on major changes to the H-1b visa and immigrant visas. No bill has been released yet and we are obviously a long way from any change but, at least people known for reasonable stances on business immigration are putting forth ideas. We will keep you updated as information becomes available.