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A 'Poison Pill' In The Immigration Bill?

That big immigration bill working its way through the Senate would let in lots more highly skilled workers on temporary visas. But there's a catch.

The bill says all employers who want to hire workers on these H-1B visas:

... would be required to advertise on an Internet website maintained by the Department of Labor and offer the job to any U.S. worker who applies and is equally or better qualified than the immigrants ... sought...

This language could be a "poison pill" for companies that want to hire workers on these visas, according to Ted Rutheizer, an immigration attorney with a big firm that works with companies who want to hire skilled foreign workers.

Under the provision, an American who applied for a job that went to a foreign worker on an H-1B visa could complain to the Department of Labor. The department could come back years later and audit the hiring process. Depending on the auditors' findings, the company could be fined and barred from the visa process for a few years.

"Employers may well decide they are not prepared to sift through hundreds or even thousands of resumes and then have to document the deficiencies of each US applicant to hire an H-1B professional, no matter how talented," Rutheizer told me. "How about preferring someone who is more articulate and expresses more original ideas? Are those reasons that the government will accept? I doubt it very much."

Sen. Dick Durbin is one of the co-sponsors of the bill. A staffer in his office told me the job-posting requirement is supposed to force companies that want to hire guest workers to prove they can't find a suitable candidate who is a U.S. citizen giving the job to a foreign worker. This is already the standard for companies with a significant percentage of workers on H-1Bs. Durbin's staffer says they've heard from "countless" tech workers who said they didn't know a position was available until "after it had been filled by a foreign worker."

Immigration, of course, is always a politically controversial subject. Big tech companies have been lobbying hard for more guest workers; yet one recent analysis found that there are plenty of skilled workers already here.

But the economic picture is pretty clear. As our own Adam Davidson wrote recently in the Times Magazine

There are many ways to debate immigration, but when it comes to economics, there isn't much of a debate at all. Nearly all economists, of all political persuasions, agree that immigrants — those here legally or not — benefit the overall economy. "That is not controversial," Heidi Shierholz, an economist at the Economic Policy Institute, told me. Shierholz also said that "there is a consensus that, on average, the incomes of families in this country are increased by a small, but clearly positive amount, because of immigration."

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