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Beltway Confidential

In immigration bill, the job protection that never happened

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The Congressional Budget Office analysis of the Senate Gang of Eight immigration reform bill predicts it will increase unemployment between now and 2020, and reduce some wages for the first decade it is in effect. It’s the kind of legislation one might expect at least some Democrats to oppose pretty vigorously, but Majority Leader Harry Reid and Gang of Eight chief Charles Schumer have been able to maintain an Obamacare-style party-line discipline on the bill’s behalf. When the final vote is taken, it is possible Senate Democrats will support the Gang of Eight proposal unanimously.

That doesn’t mean some Democrats didn’t try to reduce the bill’s negative effects on employment and wages. It’s just that nearly all of their attempts were stifled by Schumer and Reid.

One of those thwarted efforts was a rare measure that managed to unite some of the Republicans most critical of the bill with Democrats worried about its economic effects. Senate Amendment 1311 was sponsored by Democrats Sherrod Brown and Joe Manchin, along with Republicans Charles Grassley and Jeff Sessions. That’s not a group that gets together very much.

And yet the four lawmakers joined to offer an amendment that, in the words of a Brown press release, “would require that employers first offer a vacant position to an equally or better qualified American worker before seeking an H-1B [guest worker] visa holder.” The measure “would protect American workers,” Brown, who traveled across Ohio seeking voter opinion on immigration reform, continued, “by forcing businesses to play by the rules.” It seemed a reasonable idea, yet Schumer and Reid made sure it never saw the light of day.

The amendment was very short — just 42 words in a bill that stretched beyond 1,000 pages. But it sought to close a loophole in the bill by which the Gang of Eight allowed thousands of employers to hire foreign guest workers without first offering jobs to qualified Americans, if qualified Americans are available.

The provision is complicated and impossible for the casual reader to understand without cross-referencing the Immigration and Nationality Act, or INA, which is the broad law that covers virtually every aspect of immigration in the United States. (The overall Gang of Eight bill is an amendment to the INA.) But it’s worth struggling through the legalese to understand what the amendment sponsors were trying to do and what Schumer and Reid were trying to stop. Here, first, is what the relevant portion of the Gang of Eight bill says:

(2) RECRUITMENT.—Section 212(n)(1)(G) (8 U.S.C. 1182(n)(1)(G)) is amended to read as follows:

(G) An employer, prior to filing the application…

(iii) if the employer is an H–1B skilled worker dependent employer, has offered the job to any United States worker who applies and is equally or better qualified for the job for which the nonimmigrant or nonimmigrants is or are sought.

What does that mean? “Section 212(n)(1)(G)” refers to a part of the INA that requires American employers, in situations where both American workers and foreign skilled (H-1B) visa holders — guest workers — are available, to offer a job to American workers first. The Gang of Eight includes that requirement from the INA but adds the phrase “if the employer is an H-1B skilled worker dependent employer.”

Those words have a legal meaning. The INA defines an “H-1B skilled worker dependent employer” as a company that employs a large number of foreign skilled workers. And the INA is very specific about the numbers. For a small company, one that has 25 or fewer full-time employees in the United States, being H-1B dependent means employing more than seven skilled foreign guest workers. For a company with 26 to 50 employees, it means employing more than 12 H-1B workers. And for a company with at least 51 full-time employees, it means employing at least 15 percent foreign skilled guest workers.

The Gang bill would require that those employers who hire the most foreign guest workers consider Americans first. But it would exempt companies that are not “dependent” on skilled foreign guest workers. That’s a lot of employers, and for them having guest workers can be a real advantage. “The guest workers are just that — guests — and they tend to accept slightly less pay, work more hours, are less likely to ask for a promotion or a raise,” notes one Senate aide.

So Brown and Grassley, along with Sessions and Manchin, sought to close the loophole that allowed companies that were not “dependent” on skilled guest workers to hire a foreign worker before offering a job to an American. Their amendment was very brief. It simply said to strike the following paragraph from the bill:

(iii) if the employer is an H–1B skilled worker dependent employer, has offered the job to any United States worker who applies and is equally or better qualified for the job for which the nonimmigrant or nonimmigrants is or are sought.

and replace it with this:

(iii) has offered the job to any United States worker who applies and is equally or better qualified for the job for which the nonimmigrant or nonimmigrants is or are sought.

What’s the difference? Notice the only thing Brown/Grassley/Sessions/Manchin proposed to do was eliminate the phrase “if the employer is an H–1B skilled worker dependent employer.” That would have meant a lot. If that simple amendment had been accepted and incorporated into the Gang of Eight bill, all companies, not just those that are “dependent” on skilled foreign guest workers, would have been required to offer jobs to Americans first. That could have meant a lot more jobs for Americans.

Schumer and Reid killed it, never allowing it to receive a vote. Instead, they sought to pacify liberal Democrats by allowing a stimulus-style youth jobs program amendment offered by Democratic Sen. Bernie Sanders into the bill instead. Americans who apply for jobs at companies that hire foreign guest workers but are not “dependent” on them are out of luck. That is the way immigration reform works in the Gang of Eight’s world.

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Byron York

Chief Political Correspondent
The Washington Examiner