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Closing an H-1B Loophole, Protecting American Jobs

WASHINGTON—This op ed by Congressman Doug Collins (R-Ga.) and Congressman Derek Kilmer (D-Wash.) first appeared in Morning Consult on May 2, 2017 and considers the need to protect American workers from the misuse of H-1B visas.

From Washington state to Georgia, a powerful American narrative unites workers—whether you sit at a desk or have a station on a shop floor. It’s the idea that, with hard work and dedication to your craft, you can carve your own piece of the American Dream.

What if, however, you are performing well at work only to be told to train someone from another country to take your job? That doesn’t strike anyone as right. But it’s a scenario we’ve seen play out as outsourcing firms abuse a federal visa program.

Congress established the H-1B visa program to allow U.S. employers to bring foreign individuals into the country temporarily as skilled workers when no Americans can be found to fill certain specialized positions, often in technology and science. The program is exceptionally popular, with companies reaching the 2018 visa cap of 85,000 workers less than a week after the application period opened.

A few firms, however, have fallen into the cult of creative outsourcing, using loopholes to replace domestic employees with cheaper foreign workers. The result has been a loss of jobs for Americans.

Spotting exploitations of this provision is straightforward, since lawmakers designed the H-1B visa to operate within well-defined parameters: Highly educated and skilled temporary workers must earn at or above the market rate for their positions (so as not to incentivize employers to seek cheaper labor abroad); working conditions for visa holders must not negatively impact the environment of American workers; employers seeking to hire H-1B eligible workers must advertise those job openings in their workplace; and firms that rely on H-1B workers must not lay off employees within the 90 days before or after filling positions with H-1B visa holders.

To be clear, we do not object to the use of foreign workers to strengthen American operations. What deserves attention, though, is a disturbing abuse of the program.

When engineers, accountants and technology managers invest decades in a U.S. firm only to learn that their employer has hired a foreign outsourcing operation to replace them with H-1B workers, that firm has colored outside the legal lines. When the same firm instructs its employees to train—from A to Z—the same temporary workers who are displacing them or to forfeit their severance, it strips those American workers of both salary and dignity. Yet organizations home to dedicated and capable citizens—some immigrants themselves—have worked with outsourcing firms that engage in this practice and send jobs to other countries.

Firms that engage in this unscrupulous practice are reducing the resourcefulness of American professionals to how-to manuals that they then export to their off-shore operations. The men and women who find themselves replaced not with fellow industry experts but with untrained temporary workers often find that training their replacements is tedious and humiliating.

While we hail from opposite corners of the country, we are similarly bewildered that some companies are wielding their employees’ expertise against them and capitalizing on their work ethic in order to equip their replacements. While these companies claim that their actions are technically legal, we believe they have trespassed on the letter and the spirit of the law.

As a result, we are taking bipartisan action to ensure that none of our skilled professionals are forced to aid and abet in dismantling their own careers. The Keeping American Jobs Act embraces the reality that America’s unparalleled economic opportunity isn’t sustainable unless we prioritize the dignity of our workers.

There’s no doubt that America can and should promote its domestic economy while maximizing the opportunities that globalization affords, but this includes developing our talent rather than disparaging it. Recent manipulations of the H-1B provisions of immigration law represent a particularly grim chapter in the outsourcing playbook, and we are working across the aisle to bring that chapter to an end.

Derek Kilmer represents Washington’s 6th District and serves as vice ranking member on the House Appropriations Committee along with being the New Democrat Coalition’s vice-chair for policy. Doug Collins represents Georgia’s 9th District and serves as vice chair of the House Republican Conference.

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