• Proposed Legislation to Increase Scrutiny of the H-1B and L-1 Process
  • June 8, 2009 | Authors: Gregory P. Adams; Douglas Halpert
  • Law Firm: Dinsmore & Shohl LLP - Cincinnati Office
  • Senators Grassley (R-IA) and Durbin (D-IL) introduced the H-1B and L-1 Visa Reform Act (S. 887) in the current session of Congress.  This legislative proposal is targeted at closing perceived loopholes in the H-1B and L-1 visa categories. 

    Sen. Durbin’s press release claims that:

    "The H-1B visa program should complement the U.S. workforce, not replace it . . . Congress created the H-1B visa program so an employer could hire a foreign guest-worker when a qualified American worker could not be found. However, the H-1B visa program is plagued with fraud and abuse and is now a vehicle for outsourcing that deprives qualified American workers of their jobs. Our bill will put a stop to the outsourcing of American jobs and discrimination against American workers."

    Among the features of this legislation, the law would

    • require all employers who want to hire an H-1B worker to first make a good-faith attempt to recruit a qualified American worker. Employers would be prohibited from using H-1B visa holders to displace qualified American workers; and
    • prohibit the practice of advertising “H-1B only” ads and prohibit employers from hiring additional H-1B and L-1 professionals if more than 50% of their employees are H-1B and L-1 visa holders.

    The bill would give the government more authority to conduct employer investigations and streamline the investigative process and would include

    • permitting the Department of Labor (DOL) to initiate investigations without a complaint;
    • authorizing the DOL to review H-1B applications for fraud;
    • allowing the DOL to conduct random audits of any company that uses the H-1B program; and
    • requiring the DOL to conduct annual audits of companies that employ large numbers of H-1B workers.

    As for reforming the L-1 transferee visa category, the bill would establish for the first time a process to investigate, audit and penalize L-1 visa abuses.

    This bill has been referred to the Senate Committee on the Judiciary.  It is not clear at this time whether this bill will gain traction or will serve as a bargaining chip in possible comprehensive immigration reform.  In the recent past, stand-alone immigration legislation has failed to gain much support in Congress.  In fact, Senators Durbin and Grassley introduced a similar bill in the last Congress.