Business Groups Warn H-1B Outsourcing Reform Is Imminent

The long-awaited reform of the H-1B outsourcing program that was promised by Donald Trump in 2016 has been sent to the White House for approval, according to a chorus of concerned corporate immigration lawyers.

The news was praised by advocates for U.S. professionals but slammed by the immigration lawyers who guide foreign workers into hundreds of thousands of jobs that would otherwise go to young and old American graduates.

Kevin Lynn, founder of U.S. Tech Workers, said:

I am cautiously optimistic that real H-1B reform is in the works, but we have seen in the past, the best intentions can be ground down by strong lobbying effort. Americans are waking up to the cost of outscoring and offshoring, especially when many furloughed Americans are not going to be rehired … This won’t go well for anyone lobbying against a reform regulation.

“The new rule may score points with the President’s political base, but it flunks Economics 101,” countered Steve Yale-Loehr, an immigration lawyer at Cornell Law School. “It will also be immediately challenged in court,” said Yale-Loehr, who declined to talk to Breitbart news.
Business groups — including the U.S. Chamber of Commerce — strongly oppose curbs on the H-1B and related visa worker programs.

The programs provide CEOs with a large workforce of compliant foreign workers who can not easily change jobs or launch rival companies. The foreign workforce also boosts stock prices by suppressing U.S. salaries, partly because many of the foreign workers work long hours at low wages for the chance of winning green cards.

“The Department of Homeland Security has submitted to the Office of Management and Budget (OMB) a long-planned regulation to toughen H-1B eligibility criteria and impose new obligations on H-1B employers,” said a September 4 statement from the major immigration firm, Fragomen, Del Rey, Bernsen & Loewy, LLP. The statement continued:

DHS plans to issue the regulation as an interim final rule with immediate or near-immediate impact. This means that employers and other members of the public would not have an opportunity to provide public feedback before the rule takes effect.

Though the contents of the regulation will remain confidential until released for publication, the rule is expected to revise the definition of an H-1B specialty occupation to “increase focus on obtaining the best and brightest foreign nationals.”

The Fragomen statement says that the Fortune 500’s Indian-dominated outsourcing sector will be covered by the rule:

It is also expected to change the definitions of H-1B employment and the employer-employee relationship, with a likely focus on restriction of offsite placement of H-1B workers.  This could lead to a requirement that H-1B employers and end clients jointly obtain labor condition applications (LCAs) for H-1B workers at client sites. A joint LCA requirement could create de facto joint employer liability for compliance with obligations concerning H-1B wages and working conditions.

The lawyers’ description matches the requirements set by President Donald Trump, who issued an Executive Order on June 22, temporarily barring H-1B workers and ordering a regulatory rewrite. A June 22 statement from the White House said:

• At President Trump’s direction, the Trump Administration is taking action to reform our H-1B immigration program.
• Under these reforms, the H-1B program will prioritize those workers who are offered the highest wage, ensuring that the highest-skilled applicants are admitted.
• The Trump Administration will also close loopholes that have allowed employers in the United States to replace American workers with low-cost foreign labor.
• These reforms will help protect the wages of American workers and ensure that foreign labor entering our country is high skilled and does not undercut the United States labor market.

These goals largely implement a campaign pledge n March 2016, when Trump promised: “I will end forever the use of the H-1B as a cheap labor program, and institute an absolute requirement to hire American workers first for every visa and immigration program. No exceptions.”

An agency document estimates a resident population of 600,000 H-1Bs workers. Most are from India, and most hope to get green cards after several or even many years of compliant labor. Alongside the H-1B workers, the federal government also provides work permits to at least 100,000 H-4 spouses of H-1B workers, plus roughly 400,000 “Practical Training” white-collar workers, plus roughly 50,000 L-1 workers.

Many of the legal foreign workers hold jobs as gig-workers in the Fortune 500 subcontracting sector, alongside a mixture of illegal white-collar migrants, such as people who overstay their visas and people who take jobs while legally visiting on B-1/B-2 visas.

This cheap labor “Green Card Economy” effectively excludes millions of U.S. graduates from many starter jobs in the Fortune 500, partly because CEOs can pay foreign workers with the promise of green cards, while they have to pay American graduates with cash.

But business advocates and reformers say Trump’s pro-business deputies may quietly undermine the regulation by basing it on weak legal claims and foundations:

Many polls show that the Americans want to like immigrants — but they also put a higher priority on getting fellow Americans into good jobs. “A wise president would ride those populist sentiments to ride into the White House again,” said Lynn.

Employees “need to reach out to their elected reps and demand …that the regulation match the intension, and the intension is what pres Trump ran on in 2016,”

“If the regulations match the campaign promise of 2016, we’ll have to celebrate,” said Lynn. “If they don’t, then the country needs to take action and make their opinions heard.”