One of the critical moments in the debate over Gang of Eight amnesty legislation in the Judiciary Committee last week was a deal struck by Sen. Chuck Schumer (D-NY) and Sen. Orrin Hatch (R-UT) to “reform” the H-1B visa program in order to gain Hatch’s support for the bill.  Senator Hatch, who has authored several bills to expand the H-1B guest worker program, made it clear that these changes were necessary to gain his vote for the bill.

The Hatch-Schumer deal eliminates the few protections for American workers written into the bill, making it easier for employers to discriminate against skilled American workers. (Hatch-Schumer 2nd Degree) Specifically, the Hatch-Schumer Amendment:

  • Changes the formula that determines how many H-1B workers are admitted annually in order to admit H-1B workers at a faster pace.  Originally, S.744 increased the cap from 65,000 to a range of 110,000 – 180,000, with the specific number calculated through a formula based on the number of petitions filed during the previous year and certain unemployment rates.  The Hatch amendment changed the range of H-1B workers that may be admitted each year to a starting point of 115,000 – 180,000 plus an additional number determined by how quickly the cap is reached during the year and an increase contingent on certain unemployment data. If the base is 180,000 and is filled within 45 days, another 20,000 H-1B visas are issued, making the true maximum cap 200,000 H-1B visas per year.
  • Allows DHS to grant work authorization to spouses of H-1B workers regardless of whether the worker’s home country offers reciprocal treatment.  Originally, S.744 allowed DHS to grant work authorization to spouses only if the sending country permitted reciprocal treatment.
  • Eliminates the requirement placed on all H-1B employers in S.744 that they attest that they have not and will not displace U.S. workers beginning 90 days before to 90 days after the visa petition is filed.  Instead, the Hatch Amendment provides that only “H-1B skilled worker dependent employers” and “H-1B dependent employers” must attest that they have not displaced U.S. workers within 90 days before and after, or 180 days before and after, respectively.
  • Eliminates the requirement placed on all H-1B employers in S.744 that they attest they have offered the job to any U.S. workers who applies and is equally or better qualified.  Instead, the Hatch Amendment provides that only H-1B dependent employers must satisfy this requirement.
  • Allows non H-1B dependent employers to outsource their H-1B workers for a $500 fee per worker.  It also allows certain H-1B dependent employers that are universities, nonprofit research organizations, or health care businesses to outsource their H-1B workers for a $500 fee per worker.

At the same time, the Senate Judiciary Committee rejected four amendments to the Hatch-Schumer deal offered by Ranking Member Chuck Grassley (R-IA). Senator Grassley’s amendments would have restored protections eliminated by the Hatch-Schumer amendment for American workers in several ways. First, the committee rejected an amendment that would require all employers to make a good faith effort to recruit U.S. workers and offer jobs to equally or better qualified U.S. workers. (Grassley 2nd Degree #1) Second, the committee voted down a provision to prevent employers from displacing U.S. workers, particularly women, when hiring H-1B workers. (Grassley 2nd Degree #2) Next, the committee voted against an amendment that would have eliminated the granting of unlimited green cards to foreign graduates with advanced STEM degrees if fewer Americans obtain advanced STEM degrees than when the bill is enacted. (Grassley 2nd Degree #3) Finally, the committee denied an amendment that would require all employers to pay Level 2 (mean) wages for H-1B workers. (Grassley 2nd Degree #4)

While the Hatch-Schumer deal may have won over the Utah Republican’s vote, it has drawn the ire of labor unions, casting doubt on whether they will continue supporting the amnesty bill. “[L]et’s be clear: Senator Orrin Hatch’s H-1B amendments are unambiguous attacks on American workers,” charged AFL-CIO President Richard Trumka. (AFL-CIO Press Release, May 21, 2013) “Hatch’s amendments change the bill so that high tech companies could functionally bring in H-1B visa holders without first making the jobs available to American workers. Hatch’s amendments would mean that American corporations could fire American workers in order to bring in H-1B visa holders at lower wages.” (Id.) “If the hard work of America’s tech workers is ever to pay off, we need to craft policy that benefits the people who actually write code, rather than just rewarding industry honchos who write checks to politicians,” Trumka continued. (Id.) We expect better, we deserve better, and if necessary, on the floor of the U.S. Senate, we will get better,” he concluded. (Id.)