Employers could use selection standards normal or customary to the type of job involved to show their good faith recruitment. The compromise would create a new arbitration system administered by the INS to resolve complaints regarding an employer's alleged failure to offer the job to a qualified U.S. worker. An employer found to have committed a willful violation could be subject to random DOL investigations for up to five years. The compromise bill also provides whistleblower protection for individuals who disclose information about a potential violation or who cooperate in an investigation. The bill would forbid employers from requiring an H-1B nonimmigrant from reimbursing or otherwise compensating the employer for this fee.
Businesses voice several concerns about the compromise bill.
They complain that the new attestation requirements, limited though they are to H-1B dependent employers, are too onerous. For example, they worry that the strict liability feature of third-party placements would penalize many innocent employers who temporarily place their employees elsewhere for an assignment. They also complain that the training fee amounts to a tax, and will not guarantee that U.S. workers actually will eventually fill shortage positions. The no-layoff attestation could pose problems for some industries whose work or research is by nature temporary. For example, motion picture companies temporarily hire digital animators, computer programmers and others to create special effects.