BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AJR 12|
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THIRD READING
Bill No: AJR 12
Author: Eduardo Garcia (D), Brown (D), and Hernandez (D), et
al.
Amended: 6/29/15 in Assembly
Vote: 21
SENATE LABOR & IND. REL. COMMITTEE: 4-1, 7/13/15
AYES: Mendoza, Jackson, Leno, Mitchell
NOES: Stone
ASSEMBLY FLOOR: 49-20, 6/29/15 - See last page for vote
SUBJECT: H-1B Visa program: investigation of misuse
SOURCE: Coalition of California Utility Employees
DIGEST: This resolution urges the United States Department of
Labor and the Congress of the United States to investigate
alleged misuse of the H-1B Visa program.
ANALYSIS:
Existing law:
1)Establishes the H-1B Visa program which applies to employers
seeking to hire nonimmigrant aliens as workers in specialty
occupations or as fashion models of distinguished merit and
ability, as defined.
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2)Specifies that the program is for employers who cannot
otherwise obtain needed business skills and abilities from the
U.S. workforce by authorizing the temporary employment of
qualified individuals who are not otherwise authorized to work
in the United States.
3)Establishes certain standards in order to protect similarly
employed U.S. workers from being adversely affected by the
employment of the nonimmigrant workers, as well as to protect
the H-1B workers.
4)Requires employers to attest to the U.S. Department of Labor
that they will pay wages to the H-1B workers that are at least
equal to the actual wage paid by the employer to other workers
with similar experience and qualifications for the job in
question, or the prevailing wage for the occupation in the
area of intended employment - whichever is greater.
This resolution:
1)Makes the following legislative findings and declarations:
a) The H-1B Visa program allows businesses to temporarily
hire highly skilled foreign workers with specialized
knowledge where a qualified U.S. worker cannot be found.
b) The H-1B Visa program was never intended to be used as a
catalyst for laying off U.S. workers and replacing them
with H-1B workers.
c) The granting of H-1B visas should never result in the
creation of a virtual pipeline for outsourcing U.S.
workforce jobs.
d) California's average unemployment rate in January 2015
was 6.9 percent with Imperial County's unemployment rate
being 20.6 percent.
e) Some companies are misusing the federal H-1B Visa
program, including the documented misuse by one California
public utility to replace 400 California workers.
f) SB 477 (Steinberg, Chapter 711, Statutes of 2014) seeks
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to end the exploitation of foreign, temporary, nonimmigrant
workers brought to California under various federal work
visa programs.
g) Displaced American workers are being exploited through
the misapplication of the H-1B Visa program.
1)Makes the following resolutions:
a) That the Legislature respectfully urges the U.S.
Department of Labor and the Congress of the United States
to investigate this alleged misuse of the H-1B Visa
program.
b) That any company that has engaged in this improper
practice is urged to immediately cease the practice of
replacing California employees with foreign workers under
this, or any other, program.
Background
H-1B Visa Program: The H-1B program applies to employers seeking
to hire nonimmigrant aliens as workers in specialty occupations
or as fashion models of distinguished merit and ability. A
specialty occupation is one that requires the application of a
body of highly specialized knowledge and the attainment of at
least a bachelor's degree or its equivalent. The intent of the
H-1B provisions is to help employers who cannot otherwise obtain
needed business skills and abilities from the U.S. workforce by
authorizing the temporary employment of qualified individuals
who are not otherwise authorized to work in the United States.
Prospective employers must obtain a certification of a Labor
Condition Application from the U.S. Department of Labor. This
application includes certain attestations, a violation of which
can result in fines, bars on sponsoring nonimmigrant or
immigrant petitions, and other sanctions to the employer. The
application requires the employer to attest that it will comply
with the following labor requirements:
1)The employer will pay the beneficiary a wage which is no less
than the wage paid to similarly qualified workers or, if
greater, the prevailing wage for your position in the
geographic area in which you will be working.
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2)The employer will provide working conditions that will not
adversely affect other similarly employed workers. At the time
of the labor condition application there is no strike or
lockout at the employer place of business.
The duration of stay under an H-1B visa is three years,
extendable to six years. The current law limits to 65,000 the
number of foreign nationals who may be issued a visa or
otherwise provided H-1B status each fiscal year. Laws exempt up
to 20,000 foreign nationals holding a master's or higher degree
from U.S. universities from the cap on H-1B visas. In addition,
excluded from the ceiling are H-1B non-immigrants who work at
(but not necessarily for) universities, non-profit research
facilities associated with universities, and government research
facilities.
Allegations of Abuse of the H-1B Visa Program and Southern
California Edison (SCE): According to various news accounts,
recently SCE announced plans to lay off hundreds of employees.
SCE announced that it was laying off about 400 information
technology employees, with an additional 100 leaving
voluntarily. SCE said that it was outsourcing some tech-related
work to two Indian companies, Infosys in Bangalore and Tata
Consultancy Services in Mumbai, after looking at multiple firms.
According to SCE, about 70% of the work would be done by Tata
and Infosys will be completed offshore, but did not know whether
or not foreign workers would be brought to the U.S. to complete
the remaining 30% of the work. SCE said the layoffs are
necessary to stay competitive.
In addition, some of the foreign workers hired by SCE are in the
U.S. because of the H-1B visa. The visa program is a way to
encourage foreign workers with specific expertise, mostly in
science, technology, engineering, and mathematics related
fields, to work in the U.S. in areas where there is a shortage
of U.S. workers. In March 2015, the U.S. Senate Judiciary
Committee held a hearing on "Immigration Reforms Needed to
Protect Skilled American Workers." The hearing focused on
problems with the H-1B and other visa programs. The hearing
noted that the visas are used to bring high-skilled workers into
the U.S. so that companies can continue to attract world-class
talent and continue to lead on the global stage. However, the
hearing highlighted troubling stories of abuses that have caused
the displacement of American workers, and noted that these visa
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programs are to be used to complement the U.S. workforce, not
displace it.
In June, the U.S. Department of Labor announced it has opened an
investigation of two foreign outsourcing companies - Infosys and
Tata Consultancy Services - who imported H-1B guest workers to
replace hundreds of American workers at SCE.
Other Recent Criticisms of the H-1B Program: A June 3, 2015
article in the New York Times titled "Pink Slips at Disney. But
First, Training Foreign Replacements," raised similar concerns
about allegations involving the misuse of H-1B Visa program in
technology jobs at Disney, SCE, Fossil, and Northeast Utilities,
among others. The article stated:
"But the layoffs at Disney and at other companies, including
the Southern California Edison power utility, are raising new
questions about how businesses and outsourcing companies are
using the temporary visas, known as H-1B, to place immigrants
in technology jobs in the United States. These visas are at
the center of a fierce debate in Congress over whether they
complement American workers or displace them.
According to federal guidelines, the visas are intended for
foreigners with advanced science or computer skills to fill
discrete positions when American workers with those skills
cannot be found. Their use, the guidelines say, should not
"adversely affect the wages and working conditions" of
Americans. Because of legal loopholes, however, in practice,
companies do not have to recruit American workers first or
guarantee that Americans will not be displaced.
Too often, critics say, the visas are being used to bring in
immigrants to do the work of Americans for less money, with
laid-off American workers having to train their replacements.
?H-1B immigrants work for less than American tech workers,
Professor Hira said at a hearing in March of the Senate
Judiciary Committee, because of weaknesses in wage
regulations. The savings have been 25 percent to 49 percent in
recent cases, he told lawmakers."
Prior/Related Legislation
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AB 853 (Hernandez, 2015) requires an electrical or gas
corporation to use direct employees for any work associated with
the design, engineering, and operation of its nuclear,
electrical, and gas infrastructure, including all computer and
information systems, to the extent feasible.
SB 477 (Steinberg, Chapter 711, Statutes of 2014) was aimed at
ending the exploitation of foreign, temporary, nonimmigrant
workers brought to California under various federal work visa
programs by requiring foreign labor contractors to register with
the Labor Commissioner, as well as follow additional contractual
and bonding requirements, as specified.
FISCAL EFFECT: Appropriation: No Fiscal
Com.:NoLocal: No
SUPPORT: (Verified7/13/15)
Coalition of California Utility Employees (source)
California State Association of Electrical Workers
California State Pipe Trades Council
International Union of Elevator Constructors
Western States Council of Sheet Metal Workers
OPPOSITION: (Verified7/13/15)
California Chamber of Commerce
California Manufacturers and Technology Association
ARGUMENTS IN SUPPORT: According to the author, the H-1B visa
law was crafted to prevent displacement of U.S. workers and
adverse treatment of the H-1B visa worker. Unfortunately, recent
media reports have described violations of both provisions of
the law. According to proponents, it appears that most top
recipients of the visas have been outsourcing or consulting with
firms based in India and are using the visas to bring in
immigrants to do the work of Americans for less money, with
laid-off American workers having to train their replacements.
Proponents and the author argue that the H-1B visa program was
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never intended as a vehicle to replace skilled workers in the
U.S. Because of the various accounts of alleged misuse of the
H-1B Visa Program, the author and sponsor of this resolution
believe it is necessary to urge the U.S. Department of Labor and
the Congress of the United States to investigate.
ARGUMENTS IN OPPOSITION: The California Chamber of Commerce
and the California Manufacturers and Technology Association
oppose this resolution arguing that it abuses the resolution
process by making accusatory statements implicating a company
rather than condemning a particular practice. Unlike most Joint
Resolutions which urge or encourage certain practices within a
specific industry, this resolution sites "one California public
utility," therefore, unfairly targeting one company. They argue
that the language of the resolution sets a bad precedence to
single out a specific person, company, organization, or entity,
rather than focus on general policies that impact multiple
entities.
ASSEMBLY FLOOR: 49-20, 6/29/15
AYES: Alejo, Baker, Bloom, Bonilla, Bonta, Brown, Burke,
Calderon, Campos, Chau, Chiu, Chu, Cooley, Cooper, Daly, Dodd,
Eggman, Frazier, Cristina Garcia, Eduardo Garcia, Gatto,
Gipson, Gomez, Gonzalez, Gordon, Gray, Roger Hernández,
Holden, Irwin, Jones-Sawyer, Levine, Lopez, McCarty, Medina,
Mullin, Nazarian, Quirk, Rendon, Ridley-Thomas, Rodriguez,
Salas, Santiago, Mark Stone, Thurmond, Ting, Weber, Williams,
Wood, Atkins
NOES: Travis Allen, Bigelow, Brough, Chang, Chávez, Beth
Gaines, Gallagher, Grove, Harper, Kim, Lackey, Mathis, Mayes,
Obernolte, Olsen, Patterson, Steinorth, Wagner, Waldron, Wilk
NO VOTE RECORDED: Achadjian, Dababneh, Dahle, Hadley, Jones,
Linder, Low, Maienschein, Melendez, O'Donnell, Perea
Prepared by:Alma Perez / L. & I.R. / (916) 651-1556
3/22/16 9:42:26
**** END ****
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