June 05, 2020
A bipartisan bill would amend wage requirements for H-1B workers, prohibit the replacement of American workers with H-1B workers, and for the first time set wage requirements on L-1 visa workers, among several other requirements.
The H-1B and L-1 Visa Reform Act (S. 3770) would require employers to pay H-1B workers the highest wage from three categories:
Employers seeking to hire H-1B workers would be required to publish job postings available to U.S. workers on a website established by the Department of Labor for at least 30 days before filing a labor condition application (an initial step in the H-1B application process). Additionally, all H-1B employers would be required to prove that they have tried to recruit American workers for jobs offered to H-1B workers.
Companies petitioning for H-1B workers would be required to provide a copy of any earlier H-1B workers’ W-2 forms to DOL to prove that they paid the earlier H-1B workers the appropriate wage.
The law would expressly prohibit the replacement of American workers with H-1B workers. Moreover, the period of time during which an employer who hires H-1B workers may not lay off or displace their current American workers would double from 90 to 180 days.
The outsourcing or leasing of H-1B workers to other employers would be generally prohibited, with an avenue for employers to seek a waiver from the outsourcing prohibition, provided the employer can show that no U.S. workers will be replaced as a result and that the worker will not be a de facto employee of the employer with which the worker will be placed.
The bill also grants DOL significantly greater authority to investigate and enforce alleged H-1B infractions.
Fines increased: Administrative fines per violation would increase from $1,000 to $5,000 and from $5,000 to $25,000 for willful misrepresentation. Additionally, the maximum fine for a willful failure or misrepresentation resulting in the displacement of a U.S. worker would increase from $35,000 to $150,000.
For the first time, minimum wage levels for L visa workers (identical to the bill’s requirement for H-1B workers) would be set.
Looking ahead: If it can gather steam, it would likely be signed by President Trump, who is drafting an executive order placing further restrictions on H-1B workers.