A bill that would drastically reshape the H-1B visa program and effectively end the Option Practical Training (OPT) program, both of which employers use to hire foreign national employees in skilled positions, has been introduced in the Senate. Presidential candidate Senator Ted Cruz (R-Texas) and Senator Jeff Sessions (R-Alabama), Chairman of the Senate’s Subcommittee on Immigration and the National Interest, co-sponsored the American Jobs First Act.

The H-1B program allows employers to hire foreign national employees in specialty occupations that require completion of at least a Bachelor’s degree. The OPT program allows employers to hire foreign nationals in positions related to the foreign nationals’ Bachelor’s level (or higher) field of study, giving the students-turned-employees an opportunity to have hands-on training in that field.

Arguing that employers’ current use of the H-1B program strays from the original intent of the program, Senator Cruz stated this bill would ensure employers cannot use the program to replace qualified and willing U.S. workers with what he calls “cheaper foreign labor.” Accordingly, the bill would establish a minimum wage for H-1B workers and require H-1B employers seeking H-1B visas to commit to paying the foreign workers the higher of:

  • what a U.S. worker who did identical or similar work earned two years prior to the hire of the foreign worker, or
  • $110,000 annually.

In addition to an H-1B minimum wage, the bill would establish a “cooling off” period which would prevent an employer from hiring an H-1B visa-based foreign worker within two years of layoffs, employee strike, an employer lockout, furloughs, or other involuntary terminations, excluding for-cause separations. This period is intended as a disincentive for H-1B employers to replace U.S. workers with foreign national employees.

The bill also would eliminate the continued use of the OPT program. Senator Cruz and other detractors of the OPT program as argue this is not a legitimate opportunity for student training. Instead, in their opinion, it is an opportunity for employers to hire foreign workers more cheaply costs than qualified and willing U.S. workers, thus displacing or leading to the non-hire of such U.S. workers. The bill would also seek to ensure that no similar programs resulting in the displacement or non-hire of U.S. workers could be created.

While the bill, as drafted, may not pass the Senate or both chambers of Congress or become law, its introduction by a presidential candidate and sponsorship by a subcommittee chairman spotlights these popular employment visa programs as we move towards a presidential election year. It is clear that employment-based immigration issues likely will stay in the national view as politicians debate the current use and future reshaping of these visa programs.