A bill that would drastically reshape the H-1B visa program and effectively end the Option Practical Training (OPT) program, both of which employers use to hire foreign national employees in skilled positions, has been introduced in the Senate.

Presidential candidate Senator Ted Cruz (R-Texas) and Senator Jeff Sessions (R-Alabama), Chairman of the Senate’s Subcommittee on Immigration and the National Interest, co-sponsored the American Jobs First Act to do away with program

The H-1B program allows employers to hire foreign national employees in specialty occupations that require completion of at least a Bachelor’s degree. The OPT program allows employers to hire foreign nationals in positions related to the foreign nationals’ Bachelor’s level (or higher) field of study, giving the students-turned-employees an opportunity to have hands-on training in that field.

Arguing that employers’ current use of the H-1B program strays from the original intent of the program, Senator Cruz stated this bill would ensure employers cannot use the program to replace qualified and willing U.S. workers with what he calls “cheaper foreign labor.” Accordingly, the bill would establish a minimum wage for H-1B workers and require employers seeking H-1B visas to commit to paying the foreign workers the higher of:

  • what a U.S. worker who did identical or similar work earned two years prior to the hire of the foreign worker, or
  • $110,000 annually.

In addition to an H-1B minimum wage, the bill would establish a “cooling off” period which would prevent an employer from hiring an H-1B visa-based foreign worker within two years of layoffs, an employee strike, an employer lockout, furloughs, or other involuntary terminations, excluding for-cause separations. This period is intended as a disincentive for H-1B employers to replace U.S. workers with foreign national employees.

The bill also would eliminate the continued use of the OPT program. Senator Cruz and other detractors argue the OPT program does not offer a legitimate opportunity for student training. Instead, in their opinion, it affords employers an opportunity to hire foreign workers more cheaply than qualified and willing U.S. workers, thus displacing or leading to the non-hire of such U.S. workers. The bill would also seek to ensure that no similar programs resulting in the displacement or non-hire of U.S. workers could be created.

While the bill, as drafted, may not pass or become law, its introduction by a presidential candidate and sponsorship by a subcommittee chairman put a popular employment visa program “in play” as we approach a presidential election year. It is clear that employment-based immigration issues likely will stay in the national spotlight as politicians debate the current use and future reshaping of these visa programs.

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Photo of Forrest G. Read IV Forrest G. Read IV

Forrest Read is a Principal in the Raleigh, North Carolina, office of Jackson Lewis P.C. He has extensive experience in both business immigration law and employment law and has particular focus in legal issues in graduate medical education (GME).

Mr. Read’s immigration practice…

Forrest Read is a Principal in the Raleigh, North Carolina, office of Jackson Lewis P.C. He has extensive experience in both business immigration law and employment law and has particular focus in legal issues in graduate medical education (GME).

Mr. Read’s immigration practice focuses on assisting employers in obtaining employment-based nonimmigrant visas (e.g., H-1B, L, O, TN) for foreign national employees and work-related immigrant (green card) visas, including PERM Labor Certifications, and advising employers on compliance with U.S. immigration laws and regulations. He has broad experience in advising large, mid-size and small employers on their various immigration needs and developing strategies to help them navigate through complex immigration issues. He also has particular experience in counseling employers in the health care industry and addressing immigration-related issues that arise for their broad range of health care professional employees (including advising on and obtaining employment authorization for medical residents and fellows and obtaining J-1 visa waivers for foreign national physicians completing their medical training in the United States). His immigration practice also includes defending employers in connection with Department of Labor H-1B and H-2B investigations.

Mr. Read’s employment law experience includes representing management, particularly academic medical centers in the GME context, in a wide array of workplace disputes and litigation before federal and state courts and administrative agencies, including matters related to discrimination, retaliation, harassment, disability, family and medical leave, various wage and hour issues, contracts, and intentional torts. He advises academic medical centers on the interplay between applicable academic law and employment law and the ramifications of what are divergent legal requirements and standards. Mr. Read also provides counsel with respect to the legal impact of competency standards for residents and trainees in GME, including situations involving discipline, remediation, and dismissal. He provides advice and guidance in the peer review process, including provision of verification and assessment of training in response to third party inquiries.

As a member of the Firm’s Corporate Diversity Counseling group, Mr. Read also has experience in providing assessments and making recommendations to corporate and institutional clients with respect to diversity and inclusion policies and initiatives, conducting related internal investigations, and shaping, developing and enforcing effective policies and initiatives to ensure consistency with client values and in furtherance of business goals and objectives.