The Gang of Eight's version of the H-1B program — an expansive, permissive one — prevailed in Tuesday's mark-up before the full Senate Judiciary Committee. For the webcast of the session, see here.
Although at the end of that part of the session dealing with the H-1B and L-1 visas there was an actual tie vote (9-9) — with a tie in Congress going not to the runner but to the status quo — the rest of the votes were heavily against various attempts to enhance the rights of American workers.
Big business (and the Gang of Eight's position) often prevailed by votes as lopsided as 15-2.
Sens. Chuck Grassley (R-Iowa) and Jeff Sessions (R-Ala.) carried the ball for American workers, but were routinely outvoted by the committee's Democratic majority, usually aided by some to many of the GOP senators present, notably Jeff Flake (R-Ariz.) and Lindsay Graham (R-S.C.), both of whom are members of the Gang of Eight.
Among the lost causes were these:
- An attempt by Sen. Grassley to make all H-1B employers, not just those who are H-1B dependent (i.e. those having more than 15 percent of their employees in that category), assure the government that they had made "good faith" efforts to hire American workers. That would give the government "too much power" to interpret, said Sen. Chuck Schumer (D-N.Y.).
- An effort by the Iowa senator to close a loophole in the definition of an H-1B dependent employer that would permit employers to not count toward the 15 percent any worker in H-1B status for whom the employer had started a green card application.
- Another amendment by Sen. Grassley that the government conduct a 1 percent audit of all H-1B employers to check on the integrity of the program.
On the other hand, the effort by the new bomb-thrower in the Senate, Ted Cruz (R-Texas), to expand the upper limit of H-1B applications to 325,000 (as opposed to the current 65,000 plus 20,000; and to the Gang of Eight's long-term number of 180,000) was also voted down.
The general theme, sometimes specifically articulated, was that anything that threatened to blow up the agreement among the Gang of Eight (four Democrats and four Republicans) was something to be avoided, whether to protect the interests of American workers, or, in the case of Sen. Cruz's proposal, American industry.
Three amendments, non-threatening to S. 744, were passed by the committee, all by unanimous voice votes.
One by Sen. Orrin Hatch (R-Utah), a devoted supporter of the high-tech industry, called for some H-1B fees to be used to support more STEM (science, technology, engineering, and math) education for U.S. citizens. Another by Sen. Sheldon Whitehouse (D-R.I.) would create a complaint center in the Labor Department for U.S. workers displaced by foreign workers. It would have no power but to listen — a really feeble gesture.
The third, offered by Sen. Grassley, would expand slightly the advertising demands on H-1B-using employers; they would have to indicate the title of the job they were seeking to fill, the job's location, and the name and location of the employer. S.744 would require at least some effort on the part of H-1B employers to seek U.S. workers, but the requirement is so mild in the Gang of Eight's version that these simple rules were not part of it.
No one argued with Sen. Grassley on that one.
Something that did not happen was of some interest. None of the senators offered any amendments that would ease the proposed bill's efforts to cut back on the operations of so-called placement or out-sourcing companies, who dominate the use of H-1B visas.
My contacts in industry suggest that their (belated) efforts to shape the bill will be concentrated in the House. There were a number of disparaging comments on the outsourcing companies by senators on both sides of the aisle, and nothing favorable was mentioned.
For background on this internal battle, between the big IT companies (e.g., IBM, Microsoft) and the largely Indian-owned placement agencies see this blog.
The one proposed amendment that created a tie vote related to an issue much broader than that of the nonimmigrant worker programs. This was the question of whether all would-be nonimmigrants, at least those between 15 and 79, would have to undergo a face-to-face interview with a U.S. official before getting a visa. This was regarded by many as an important security measure, but the State Department often offers waivers to this rule, a pattern that many of the senators dislike. Sen. Diane Feinstein (D-Calif.) was one of the nine who voted with Sen. Grassley on this one. In Congress a tie vote kills the measure.
See here for the list of proposed amendments to S.744, organized by the Senate committee member sponsoring them, the full texts thereof, and, when acted upon, their fates. It is a long list.
