White House H-1B plan puts U.S. workers in front

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By:  Patrick Thibodeau

A top White House adviser Sunday outlined two key principles underlying the administration’s approach to H-1B reform. It wants a system requiring employers to first consider U.S. workers for a job before hiring visa-holding workers, and it intends to distribute H-1B visas under a “merit-based” system.

Stephen Miller, senior policy adviser for President Donald Trump, said the administration will seek an immigration program where “American workers are given jobs first.”

In a television interview Sunday on Meet the Press, Miller also said that Trump “has made clear” his interest in creating “a merit-based system where individuals coming into the country bring the kinds of benefits economically that will grow our economy and help lift up wages for everybody.” (You can find the transcript here).

Miller is no Johnny-come-lately to the H-1B visa issue. Before joining Trump’s presidential campaign, Miller worked as a top aide of former Sen. Jeff Sessions (R-Ala.), who was confirmed last week as attorney general.

Sessions made the impact of the H-1B visa on IT workers a priority issue for the Senate’s immigration subcommittee, which he chaired. Sessions read Computerworld‘s story about the Southern California Edison layoffs into the Congressional Record, and Miller also spoke with affected IT workers at Edison as well as at Disney to gather first-person accounts. Hearings were later held, including one that featured testimony from a displaced Disney IT worker.

As a candidate, Trump produced a detailed H-1B plan in his immigration platform that reflected the ideas voiced in the immigration subcommittee hearings.

A recent White House leak of a draft executive order on the work visa aspects of immigration sketched the White House direction. But Miller, in his comments Sunday, was the first administration official to articulate goals, which are similar to some of the efforts in Congress.

In terms of job preference, Miller said that U.S. citizens and permanent residents “ought to have the ability to make the first application for that job.” That is similar to what Senators Chuck Grassley (R-Iowa) and Dick Durbin (D-Ill) are seeking in legislation that “requires companies to post job openings and make good faith efforts to hire qualified American workers before seeking H-1B visas.”

Any hiring preference requirement for U.S. workers, however, will likely have its problems.

Foreign workers who want to work permanently in the U.S. must now certify “that there are not sufficient U.S. workers able, willing, qualified and available to accept the job opportunity in the area of intended employment and that employment of the foreign worker will not adversely affect the wages and working conditions of similarly employed U.S. workers,” according to U.S. government rules.

But this preference requirement sometimes prompts sponsoring employers to post job ads with very specific requirements that all but assure that the foreign worker is the person who is ultimately hired. Critics have long called these “fake” job ads.

Merit-based H-1B distribution may be include giving preference wages in a visa distribution, as well as giving visa preference to graduates of U.S. universities, and especially to advanced degree holders.

The administration faces challenges in H-1B reform. Any executive order that seeks to change the H-1B system will likely face a court hurdles from industry, which will challenge the administration’s ability to change the visa without legislation.