RK ARCHIVE - Senator Durbin speaks passionately about abuses in the H-1b program

Mr. President, in the coming weeks the Senate will again consider legislation to reform our broken immigration system.

I think we all understand the challenge is substantial. If we want to solve the problem, we need a comprehensive approach that is tough but fair. We should improve border security by increasing manpower and deploying new technology. We should enforce the law against employers who are hiring millions of undocumented workers. And we need a realistic, honest approach to the 12 million undocumented immigrants who live and work in our country illegally.

Most importantly, we must ensure that immigration reform legislation protects the American economy and American workers as well.

I am concerned about the H -1B visa program as it is currently structured. I am afraid it is being abused by foreign companies to deprive qualified Americans of good jobs.

The H -1B visa program was designed to allow employers to attract and hire high-skilled foreign workers with specialized knowledge. H -1B visas are probably best known for their use in technology to import computer engineers and programmers.

I can't tell you how many leaders in industry, including one this afternoon, come into my office and say: We absolutely need H -1B visas. We can't find enough people with specialized education for our businesses. If you won't allow us to bring these workers in from overseas, we are going to be facing the possibility of taking our production facilities overseas where they live.

It is a compelling argument. I understand it on its face. But let me explain some of the problems with the current system and why Senator Grassley and I believe the system needs to be changed.

Supporters claim the goal of the H -1B program is to help the American economy by allowing U.S. companies to hire needed foreign workers. The reality is that H -1B visas are being used to facilitate the outsourcing of American jobs to other countries. It seems counterintuitive that a visa that allows people to come into the United States could lead to jobs being outsourced overseas, but when you hear my illustrations, you will understand the conclusion.

A recent expose in the International Herald Tribune disclosed that 8 of the top 10 H -1B visa applicants last year were outsourcing firms with major operations in one country--India. So in many cases it wasn't the American high tech company using the H -1B visa that was given this opportunity but, rather, a firm, more likely in India than any other country, that was given the authority to use H -1B visas to send workers into the United States. The Herald Tribune concluded:

As Indian outsourcing companies have become the leading consumers of the [H -1B ] visa, they have used to it further their primary mission, which is to gain the expertise necessary to take on critical tasks performed by companies in the United States and perform them in India at a fraction of the cost.

According to this report, the Indian Government has been lobbying hard for the United States Government to increase the number of H -1B visas. Kamal Nath, the Indian Commerce Minister, was very blunt when he said recently that the H -1B visa ?has become the outsourcing visa.? He concluded: ?If at one point you had X amount of outsourcing and now you have a much higher quantum of outsourcing, you need that many more visas.?

That is a very candid statement by this commerce minister in India. It should give us pause as we think about this program, what it was designed to do and what it is actually doing.

In other words, the Indian Government wants more H -1B visas so Indian companies can outsource more American jobs to India.

Let me be clear. India is a valuable American partner in commerce, diplomacy, and many other endeavors. Indians who have come to the United States have made immeasurable contributions to the benefit of our country in so many ways. I trust them as great friends. But some in India today understand that we have a weakness in our visa system and are using it for their own economic advantage.

It is not surprising the Indian Government is advocating on behalf of Indian companies. The American Government should advocate on behalf of American companies. I don't criticize the Indian Government for doing that. But we should expect the same from our Government for our workers. We need to stand up to make sure American workers don't lose their jobs to outsourcing because of H -1B visas.

H -1B supporters claim we need more H -1B visas to stop American jobs from being outsourced. That was the logic behind H -1B visas. It appears the opposite is true. Under the current system, more H -1B visas will mean more outsourcing.

Let me give an example. Indian outsourcing company Wipro was No. 2 on the list of top applicants for H -1B visas in the year 2006. Wipro has more than 4,000 employees in the United States, and approximately 2,500 of them are here on H -1B visas. It is pretty clear that when it comes to Wipro's American operation, the majority of the workers are here on H -1B visas. Every year Wipro brings 1,000 new temporary workers here from India, while they send another 1,000 U.S. trained workers back to India. This is essentially an outsourcing factory.

Here is what the Herald Tribune concluded: ?Rather than building a thriving community of experts and innovators in the United States, the Indian firms seek to funnel work--and expertise--away from the country.?

It is hard to believe, but it is perfectly legal to use the H -1B visa program for outsourcing. A foreign outsourcing company with a U.S. office can use H -1B visas to import workers from their home country, train the workers in the United States, and then outsource them back to their home country to populate businesses competing with the United States. They are not required to make any efforts to recruit American workers for these jobs. In fact, they can explicitly discriminate against American workers who apply for the same jobs by recruiting and hiring only workers from their home country.

Here is what the Labor Department says about the current law: ?H -1B workers may be hired even when a qualified U.S. worker wants the job, and a U.S. worker can be displaced from the job in favor of a foreign worker.?

Is that what we had in mind with H -1B visas? That certainly wasn't the way it was explained to me. In fact, under current law, only employers who employ H -1B visa holders as a large percentage of their U.S. workforce are required to attempt to recruit American workers before bringing in foreign workers.

Senator Grassley and I have taken a look at this system. We both reject the notion that what is wrong with the H -1B program is that we need more visas. We have to look at the system that generates these visas and the way they are used. The legislation we have introduced would overhaul the H -1B program, protecting American workers first, and stopping H -1Bs from being exploited as outsourcing visas.

Here are the highlights. First and foremost, we would require all employers who want to hire an H -1B worker to attempt to hire an American worker first. Employers would also be prohibited from using H -1B visas to displace American workers. You can't fire an American and turn around and appeal to our Government for an H -1B visa to bring someone in from overseas to replace that worker.

This is an important principle. We have to make it clear that companies doing business in the United States have to give first priority to American workers.

Our bill would require that before an employer may hire an H -1B worker, the employer must first advertise the job opening to American workers for 30 days on the Department of Labor Web site.

Some companies that abuse the H -1B visa program are so brazen, they say ?no Americans need apply? in their job advertisements. Hundreds of such ads have been posted on line. They say things such as ?H -1B visa holders only? or ?we require candidates for H -1B from India.?

Is that what we have in mind, to create this perverse discrimination against American workers? That isn't the way it was explained to me. Our H -1B reform bill would prohibit this blatant discriminatory practice.

There is another serious problem with the H -1B visa program. Federal oversight is virtually nonexistent. Under current law there are many roadblocks to effective Government enforcement. For example, the Department of Labor does not have the authority to open an investigation of an employer suspected of abusing the H -1B program unless the Department receives a formal complaint, even if the employer's application is clearly fraudulent. Even if there is a complaint, the Labor Secretary--and this is something that is almost unique in our law--must personally authorize the opening of an investigation.

These restrictions in the law are aggravated by lax Government enforcement. According to the Department of Homeland Security's own Inspector General, Homeland Security has violated the law by approving thousands of H -1B applications in excess of the annual cap of 65,000. The Government Accountability Office found that the Labor Department approves over 99.5 percent of H -1B petitions it receives, including those that on their face clearly violate the law.

There is virtually no Government oversight of potential abuse in this system. The Labor Department's inspector general has concluded that the H -1B program is ?highly susceptible to fraud.? Remember, this program was designed to help the American economy, to help create jobs and prosperity in our country. Our Government is not even watching it closely to make sure that fraud isn't being perpetrated.

The bill Senator Grassley and I are proposing would give the Government more authority to conduct employer investigations and streamline the investigative process. Currently, the Labor Department is only authorized to review applications for ?completeness and obvious inaccuracies.? Our bill would give the Labor Department more authority to review employers? H -1B applications for ?clear indicators of fraud or misrepresentation of material fact.?

Our bill would authorize the Labor Department to conduct random audits of any company that uses the H -1B program and require the Department of Labor to conduct annual audits of companies that employ large numbers of H -1B workers. We would also increase the penalties for companies that violate H -1B visa rules and authorize the hiring of 200 additional Government investigators to oversee and enforce the H -1B program.

Last month, the government began accepting H -1B visa petitions for Fiscal Year 2008. In the first 24 hours, the government received 150,000 petitions for 65,000 slots, supposedly for the whole year. Based on last year's statistics, it is likely that the top petitioners for visas were companies from India. They understand the system. They understand how to make this profitable. But this is not the way it has been described to most Members of Congress. It certainly isn't consistent with our intent.

There is another program I wish to mention, the L-1 visa. The L-1 visa allows companies to transfer certain employees from foreign facilities to the United States for up to 7 years.

Experts have concluded that some employers use the L-1 program to evade restrictions on the H -1B program, because the L-1 program doesn't have an annual cap and doesn't include even minimal protections for American workers. As a result, efforts to reform the H -1B program are unlikely to succeed if the L-1 program is not overhauled at the same time.

We would establish for the first time whistleblower protections for those who call attention to employer abuses of L-1 programs, and for the first time we would authorize the Government to investigate and audit L-1 employers suspected of violating the law.

Before we are persuaded to increase the number of H -1B visas, we have to reform the program to protect American workers first and to stop H -1Bs from being used as outsourcing visas that send jobs and business away from America. That is what our bill would do, and that is what Senator Grassley and I will be pushing for as the Senate considers comprehensive immigration reform legislation.

Comments

Seems like we need some serious reform. (loboforestal - 5/15/2007 10:05:12 PM)

A simple, citizenship track, quota capped lottery with extra points for merit, skill and other factors should be the basic immigration policy. We don't need special interests fighting over who gets special preference in importing non-immigrant guest workers. While we don't technically "need" more labor supply, America may benefit by having good folks come over and help build our country. They should be citizens. While computer workers and nurses have special H visas which benefit companies in the computer and health industries, other professions such as police, lawyers, doctors, soldiers, salesmen aren't targeted. It seems shortsighted to shortcircuit the supply and demand incentives for American business and labor with subsidies. Wealthy companies such as Microsoft and IBM can afford to hire and train new college graduates, mid-career changers and new citizens. We don't need a large, complicated, employer sponsored guest worker program. Adam Smith may move some jobs over seas; but there is no reason for George Bush and Nancy Pelosi to go out of their way to provide special legislation to assist this.