Immigration Reform: Americans First?

Senator Dick Durbin is weighing a proposal that would require companies to try to hire Americans before bringing in temporary foreign workers

by Peter Elstrom

A battle is brewing in Congress over how to treat high-skilled foreign workers who want to come to the U.S. for jobs. Last week, Representatives Luis Gutiérrez (D-Ill.) and Jeff Flake (R-Ariz.) introduced a plan for immigration reform that includes a sharp increase in the number of visas available to skilled workers coming to the U.S. on a temporary basis. It's similar to a proposal that had been expected from Senators Edward Kennedy (D-Mass.) and John McCain (R-Ariz.), although the McCain-Kennedy legislation appears to be stalled at the moment.

But BusinessWeek has learned that Senator Dick Durbin (D-Ill.), is formulating an alternative proposal that could impose much tighter standards on such workers, in an effort to address concerns that some employers have abused the program. One key point Durbin is considering is whether companies that want to bring workers into the country on a temporary work visa should be required to try to hire American workers before considering non-U.S. laborers.

Bogged Down

Such a requirement would be controversial with companies but popular among employees. "I think it's important that someone of Durbin's stature is considering something like this," says Marcus Courtney, president of the Washington Alliance of Technology Workers, a union-backed group.

Durbin has not signed off on the final version of the bill, and it could change before it is made public. One Durbin staffer said the legislation is expected to be introduced later this week. Another said Durbin is still negotiating with other politicians and "the draft legislation is a work in progress."

Durbin's effort could complicate the outlook for immigration reform. McCain and Kennedy had been expected to introduce a joint proposal for comprehensive reform, addressing problems with the millions of undocumented workers in the U.S. as well as highly skilled foreign workers. But that initiative has bogged down over the controversial issue of whether to give illegal immigrants an opportunity to become citizens. If the proposals for high-skilled workers become contentious too, that could force Congress to handle immigration reform in two stages, one for low-skilled and another for high-skilled workers. Or it could doom immigration reform altogether (see BusinessWeek.com, 2/27/07, "Fresh Ideas for the Immigration Debate").

Strong Teeth

Durbin is considering the tougher standards for companies that want to bring temporary foreign workers into the country under the H-1B visa program. According to a summary of Durbin's draft proposal, before they could use such visas, companies would have to give a written pledge, or "attestation," that they made a good-faith effort to hire American workers first and that they were not displacing any American workers by bringing in non-U.S. employees.

That would mark a substantial change. Today, companies can hire workers on the H-1B program simply by paying the prevailing wage in a certain job. The U.S. Customs & Immigration Service has said that there's an assumption companies will hire Americans first if there's no financial advantage to hiring foreign workers. But there's no requirement that they try to do so (see BusinessWeek.com, 2/8/07, "Work Visas May Work Against the U.S."). A Durbin spokesman said no one in the office, including the Senator, was prepared to comment on details in the proposal because they are not yet finalized.

Durbin's plan may also make it much harder for companies to hire foreign workers under the H-1B program at lower wages than current workers. One of the most common criticisms of the visa program is that companies use it to hire foreign workers at lower wages than they would pay Americans.