Two California Representatives – Republican Darrell Issa and Democrat Scott Peters – have reintroduced the ‘Protect and Grow American Jobs Act’ in the US House of Representatives. The bill has been introduced before with little success.
There seems to be some confusion in the press as to what the bill would actually do if it became law: it doesn’t impact how the “Required Wage” is determined and wouldn’t impact most of the existing rules for most employers.
The current H-1B program has certain attestation requirements for all employers:
That they pay a “Required Wage” (the higher of Prevailing Wage: a government survey wage for that job at that level in the area of intended employment/an acceptable alternative wage survey OR Actual Wage: what the employer is actually paying similarly situated employees whichever is higher),
That the employer provide notice to other workers at the work site of the intent to hire an H-1B for a given position at a given rate (either directly through a posting or if applicable through a collective bargaining representative),
That there is no strike or lockout in effect, and
That employment of the foreign worker will not adversely affect U.S. workers.
On top of these “normal” attestation requirements, there are additional requirements that apply only to “H-1B Dependent Employers” (those with H-1Bs as a high proportion of their workforce) or “Willful Violators” (employers who have been found to violate H-1B rules in the past). These include an actual obligation to actively recruit US workers before hiring an H-1B (as opposed to just notifying of the intent to hire an H-1B), an obligation to offer a US worker who is equally or better qualified than the proposed H-1B hire the job, and an obligation to attest that US workers won’t be displaced even indirectly.
This Bill only applies to these additional requirements for “H-1B Dependent Employers” and “Willful Violators.” These employers don’t need to count “H-1B Exempt Employees” in determining whether they are “H-1B Dependent Employers,” and they don’t need to provide the additional attestations/recruitment efforts for “H-1B Exempt Employees.”
This Bill actually changes the definition of “H-1B Exempt Employees” to “Employees making $100,000 or more” from “Either Employees making $60,000 or more OR who have Master’s degrees.” This definition doesn’t refer to employees who are exempt from the H-1B cap or even employees exempt from the usual four attestations, but to employees exempt from being counted against the proportion of H-1B employees for cap dependency purposes, and exempt from having the additional attestations for “H-1B Dependent Employers” or “Willful Violators” apply.
So, the proposed bill would really ONLY impact “H-1B Dependent Employers” or “Willful Violators,” and would do that by making fewer workers exempt from being counted for H-1B Dependency and from requiring the additional recruitment efforts/attestations.
Remember that for this to actually become effective as law, it needs to be passed by both Houses of Congress (the House of Representatives and the Senate) AND signed into law by the President. The mere introduction of a bill into the House of Representatives or Senate does not make it law; this is only a proposal at this point.