Business Immigration News Update 
from True, Walsh & Miller 
June 12, 2000

1. H-1Bs Holding at March 10
2. House Moves Wrong H-1B Bill; Leadership Pressed to Correct Process
3. Senate H-1B Vote Held Up
4. Calls for "H-1B Plus" Come from Many Sources
5. Section 110 Deal Reached Between House, Senate and Industry
6. Healthcare Workers Sue INS
7. State Dept. Warns That DV-2000 Visas May Run Out
8. State Dept. Announces Dates, Changes for Next Diversity Visa Lottery
9. The Firm Speaks and Writes

1. H-1Bs Holding at March 10

The American Immigration Lawyers Association (AILA) reports that the INS is still citing petitions filed up to March 10, 2000 as its goal for the Service Centers to process H-1B cap cases. It believes that all Service Centers will reach that goal early in the week of June 12, at which time it expects to pause processing of cap cases. The meaning of that pause has not been stated.

In the meantime, the INS California Service Center (CSC) is continuing to devote resources to clear its backlog of non-cap cases. The CSC now states that it has processed such cases filed through April 10, and is working to reduce its backlog on on-cap H-1B cases to 45 days.

2. House Moves Wrong H-1B Bill; Leadership Pressed to Correct Process

Recent events in the House Judiciary Committee have demonstrated that H.R. 3983 (the Dreier/Lofgren bill) likely is the only H-1B measure that can pass the House this year. After three tries during three scheduled days of votes, the House Judiciary Committee in mid-May finally succeeded in voting on H.R. 4227, a bill sponsored by Representative Lamar Smith (R-TX).  In an 18-11, largely party-line vote, the Committee approved a substitute version of H.R. 4227, sponsored by Chairman Smith and Representative Sheila Jackson-Lee (D-TX). All Republican members voted for the bill, and all but two Democrats, Representatives Jackson-Lee (D-TX) and Rick Boucher (D-VA), opposed H.R. 4227.

The business community opposes H.R. 4227, even as amended, and strongly supports H.R. 3983 as the only bi-partisan bill that meets the needs of industry.  The amended H.R. 4227 makes only the following minor changes:

• Drops a requirement that H-1B recipients' names be posted on the Internet. However, the measure still would mandate that the company, salaries, positions, nationalities, and academic credentials of H-1B professionals be posted on the Internet.  Thus, people could still identify, and possibly retaliate against, specific individuals.
• Eliminates provisions that would have shifted verification of foreign educational degrees from the INS to the Department of State (DOS) and would have required DOS to count H-1B visas. 
• Eliminates a proposed requirement that employers must demonstrate to the Department of Labor (DOL) that they had hired more American workers and raised the average salaries of those workers over the previous year. The new version of H.R. 4227 still would require employers to show that they had raised the median salaries of American workers in the previous year. This provision would impose new paperwork burdens on businesses and may subject all payroll records to DOL scrutiny.
• Eliminates the requirement that DOL issue final regulations from the 1998 law before any new visas are issued.  The new version of H.R. 4227 states that DOL still must issue final regulations by September 1, 2000, although failure to do so would not impact H-1B visa availability.
• Inserts a new provision requiring national studies of recruitment and hiring of minorities and other under-represented groups in the high-technology industry, the training that H-1B employers undertake for their U.S. workforces, and the degree of compliance with the provisions of the 1998 H-1B law.

The rest of the measure remains as introduced, and would:

• Set a minimum salary level of $40,000 for H-1B recipients. Observers have noted that many of the same Members of Congress who now endorse setting a $40,000 minimum wage for foreigners voted against a $1.25-an-hour hike in the minimum wage for Americans. This provision also seems to violate the United States' commitments under GATS (the General Agreement on Trade in Services).
• Eliminate companies' ability to bring in H-1B-qualified foreign professionals using other business visas.  Thus, international transferees, treaty traders and investors, and international exchange visitors who are in specialty occupations would be required to get H-1B status rather than L-1, E-1/2, or J-1 status.  The provision also would eliminate B-1 in lieu of H-1B.
• Eliminate a provision allowing employers to substitute work experience for the educational requirements needed to obtain an H-1B visa. While employers often consider work experience in lieu of education in their hiring decisions, under the Smith/Jackson-Lee substitute, they cannot do so when hiring H-1B professionals.
• Require any company applying for an H-1B visa to have minimum assets of $250,000 or file additional paperwork. This provision is not only anti-small business, but also would limit the ability of start up companies to use H-1Bs.
• Require H-1B recipients to work 35 hours a week. As noted by Representative Zoe Lofgren (D-CA), this requirement could conflict with the Family and Medical Leave Act and other federal labor laws as well as GATS.

The House Judiciary Committee also approved two minor amendments to H.R. 4227.  One, sponsored by Judiciary Committee Chairman Henry Hyde (R-IL), would eliminate teachers from the minimum salary levels for H-1B recipients.  The other, offered by Representative Jackson-Lee, offers a partial fee waiver for schools that sponsor H-1B applications. Committee Democrats, while supporting H.R. 3938, also used the markup and earlier Committee meetings to push for other immigration issues. Representatives Lofgren (D-CA), Conyers (D-MI), Frank (D-MA), Berman (D-CA), and Nadler (D-NY) tried unsuccessfully to link NACARA parity and a change in the registry date to the H-1B measure (See "H-1B Plus" below).

The employer community opposes the Smith/Jackson-Lee bill and is pressuring Representative David Dreier (R-CA), who is an original co-sponsor of H.R. 3983, to push for a vote on that bill. Representative Dreier, as Chairman of the House Rules Committee, oversees the committee that determines the rules by which bills are to be considered on the House floor.  However, despite business support for H.R. 3938, House Republican Leadership has been insisting that Representative Smith control the process.  With the issue now out of the Judiciary Committee, business organizations are urging Chairman Dreier and House leadership to move H.R. 3983. 

In contrast to those lengthy and confusing proceedings, the House Education and Workforce Committee approved by voice vote and with bi-partisan support H.R. 4420, introduced by Chairman William Goodling (R-PA).  This bill would reallocate the funds received from H-1B filings to various DOL education and training programs.  Specifically, H.R. 4420 would ensure that any programs funded by these fees are used to provide education and training in H-1B qualifying occupations, and would forgive loans to math, science and technical education teachers. Proponents of this measure argue that previously funded programs did not address the skilled worker shortages that are fueling the demand for additional H-1B visas.  Republican Members are hopeful that this measure will be attached to the final H-1B bill that goes to the floor for a vote, possibly in mid-June.

3. Senate H-1B Vote Held Up

When the Senate Judiciary Committee passed S. 2045, the Hatch/Abraham H-1B bill by a 18-2 vote at the beginning of March, H-1B advocates hoped that the Senate quickly would pass the bill.  However, the agreement to bring the needed bill to the floor has been held up by other pressing business, disagreements about proposed amendments, and individual Senators' demands on unrelated matters. Several Senators have indicated their intention to attach to the H-1B bill other immigration and non-immigration measures, including relief for Syrian Jews, relief for certain Central Americans disadvantaged by previous legislation, a change in the registry date, agricultural worker legislation, and campaign finance.  In addition, some Senators are trying to make the lack of an agreement a partisan issue with which to bait the other party.  Senate leadership on both sides of the aisle have expressed frustration with the situation.  Negotiations are ongoing, and while not yet concluded, are expected to lead to an agreement to proceed.

This ongoing wrangling only delays passage of this much-needed legislation. H-1B advocates need to make their voices heard by contacting their Senators and urging them to press their leadership to bring S. 2045 to a vote NOW.

4. Calls for "H-1B Plus" Come from Many Sources

Many Members of Congress and pro-immigration advocates have been urging Congress to broaden its immigration agenda beyond H-1B visas this session. This month, the White House weighed in on the issue.  In a May 11 letter to Congress, the Administration stated its support for including NACARA equity of relief and a registry date change in H-1B legislation.

In his letter to Chairman Henry Hyde (R-IL) of the House Judiciary Committee and other congressional leaders, Gene Sperling, Director of the National Economic Council and Assistant to the President for Economic Policy, wrote: "As we consider allowing more foreign temporary workers into this country to meet the needs of our high tech industry, it is critical that we take this opportunity to correct two long-standing injustices currently affecting many immigrants already in our country. The Nicaraguan Adjustment and Central American Relief Act (NACARA) should be amended to provide equitable treatment for other Central American immigrants, and the Date of Registry should be changed to offer long-term immigrants with longstanding ties to this country the opportunity to apply for legal resident status."

Republican House Leadership responded that the proposal could complicate efforts to increase the H-1B cap by raising a partisan issue on what has become bi-partisan legislation. Representative Lamar Smith denounced the move, alleging that the Administration had "turned its back on American workers and pandered to illegal aliens."
Support for the inclusive proposal has come from different organizations.  Less than a week after the Administration later, on May 16, a new left-right coalition announced its support at a Capitol Hill press conference organized by Jack Kemp, former Republican vice presidential nominee and co-director of Empower America, and Henry Cisneros, the President of Univision and former Secretary of the U.S. Department of Housing and Urban Development in the Clinton Administration.  More recently, the National Restaurant Association, noting that its members are experiencing problems both in hiring enough personnel and ensuring the legal status of the employees they do hire, sent a letter to Senator Henry Reid (D-NV) endorsing his bill that would change the registry date to allow eligible individuals present in the US since before 1986 an opportunity to obtain permanent residence. The National Restaurant Association is a member of the Essential Worker Immigration Coalition (EWIC), a group of employers and associations interested in reforms to the immigration system for the "essential workers" of our economy, i.e., unskilled and lesser skilled workers in all sectors of the economy. These initiatives have raised these issues' profiles both in Congress and nationwide and have helped push them to the top of the agenda for the upcoming elections.

5. Section 110 Deal Reached Between House, Senate and Industry

Following months of negotiations between industry representatives, the Administration and Members of Congress, Representative Lamar Smith (R-TX) and Senator Spencer Abraham (R-MI) announced an agreement to amend Section 110 of the Illegal Immigration and Immigrant Responsibility Act of 1996 (IIRIRA) to no longer require an automated entry-exit system at all ports of entry to the United States.  Instead, the INS would create an integrated database of all entry and exit data that currently is collected.  Then Representative Smith and Senator Abraham quickly introduced the "Immigration and Naturalization Service Data Management Improvement Act" concurrently in the House and Senate that reflects this agreement.  Both the House and Senate have approved the bill (H.R. 4489), which awaits the President's signature.

This measure expressly prohibits INS from using the legislation to introduce new entry or exit documentary requirements on any visitors to the country.  Instead, it would phase in implementation of the new searchable database system at land borders, seaports, and airports. The measure also would create a new task force of government agencies and private sector interests to evaluate the need and costs of any additional measures.

All parties hailed the agreement as a victory. Senator Abraham stated, "The agreement strikes the right balance in enhancing our security and immigration enforcement needs while ensuring that we preserve the jobs and other economic benefitsŠ." Representative Smith also praised the agreement.  Passage of this legislation represents a victory for the Americans for Better Borders (ABB) coalition, which was formed three years ago to eliminate the entry-exit control requirements of Section 110.  Business leaders, trade, travel, tourism and legal organizations and representatives of the Canadian and Mexican governments worked to achieve this victory.

6. Healthcare Workers Sue INS

The American Immigration Law Foundation (AILF) filed suit this month in federal court against the INS, seeking regulations to allow thousands of healthcare workers to become permanent residents.

A 1996 law required all healthcare workers applying for green cards to obtain certification form U.S. credentialing organizations.  Following passage of the law, INS stopped processing all pending healthcare cases pending issuance of regulations regarding the certifications.  The INS failed to issue regulations until 1998, following a prior lawsuit by AILF on behalf of nurses and occupational therapists.  However, those regulations only addressed those occupations in the lawsuit, leaving foreign Speech/Language Pathologists, Medical Technologists, Medical Technicians, and Physical Therapists and other healthcare workers out in the cold, and in legal limbo.

The current lawsuit seeks to force the INS to issue the regulations that will allow these cases to be decided.  Employers or employees seeking more information should contact us.

7. State Dept. Warns That DV-2000 Visas May Run Out

The State Department has warned that individuals registered for the diversity visa (DV) lottery for this year (2000) who wish to obtain an immigrant visa will need to act quickly to obtain their visas before the fiscal year ends on September 30, 2000. This is because 5,000 fewer DV numbers will be available for DV-2000 than previous programs. The Nicaraguan and Central American Relief Act (NACARA), passed by Congress in 1997, stipulates that, 5,000 of the 55,000 annually-allocated diversity visas be made available for use under the NACARA program. The annual reduction of the limit to 50,000 will begin with DV-2000 and will continue in future DV programs. As a result, DV numbers for fiscal year 2000 could be exhausted before the end of the fiscal year.

Very heavy demand for diversity visa numbers, particularly at Immigration and Naturalization Service offices in the United States, might cause allocations of available numbers to reach the annual limit before the end of the fiscal year. Any DV-2000 registrants processing their case through a U.S. embassy or consulate overseas who have not returned their initial set of application forms to the National Visa Center should do so immediately. The State Department encourages DV-2000 registrants who have received their immigrant visa appointment notice to ensure that their paperwork is in order and medical examinations are completed by the time of their final visa interview. If during the final interview, applicants are instructed to supply additional documentation, they should return with it prior to the end of the month or risk not receiving one of the limited remaining available visas.

For general information about the diversity visa lottery, go to the following article on our web site: http://www.millermayer.com/resources/general7cont.htm.

8. State Dept. Announces Dates, Changes for Next Diversity Visa Lottery

The State Department has announced that the mail-in period for the next Diversity Visa lottery (DV-2002) will be held between noon on October 2, 2000 and noon on November 1, 2000. There are several important changes for DV-2002. Most importantly, the mailing address for submitting DV applications will change. Effective with DV-2002, Diversity Visa operations will move to the Kentucky Consular Center in Williamsburg, Kentucky. Entries for DV-2002 should not be sent to the National Visa Center in Portsmouth, New Hampshire. Entries for DV-2002 sent to the National Visa Center address will not be accepted and will be disqualified.

Those who choose to enter the DV-2002 lottery should obtain a copy of the latest instructions and follow them carefully. Complete instructions for entry into the DV-2002 lottery will be made available in early August 2000. At that time, written instructions will be posted in the "Visa Bulletin" on the Internet at travel.state.gov or via the Consular Affairs' automated fax at (202) 647-3000. Calls to the automated fax service must be made from a fax machine using the receiver or voice option of the caller's fax equipment. Recorded information will be available in August 2000 by calling (202) 331-7199. Individuals who are overseas may contact the nearest U.S. embassy or consulate for updated instructions on DV-2002.

For general information about the diversity visa lottery, go to the following article on our web site: http://www.millermayer.com/resources/general7cont.htm.

9. The Firm Speaks and Writes

Hilary Fraser has written two new useful articles: one about B-1 business visas; the other about the pros and cons of adjustment of status v. consular processing for people getting green cards.  Both articles are linked from the front page of our web site: http://www.millermayer.com/

Steve Yale-Loehr has written a new article on the legal, ethical and practical issues surrounding undocumented students at U.S. colleges and universities.  It is on our web site at http://www.millermayer.com/resources/general42cont.htm

Steve will speak on investor visas at the annual conference of the American Immigration Lawyers Association (AILA) in Chicago June 15-18. Steve currently co-chairs the AILA investors committee.  He will also moderate a panel on the immigration aspects of corporate reorganizations at the AILA conference.

Please note that all of the firm's immigration lawyers will be at the AILA conference June 15-18.  We will check our voice mail, however, while we are out of town.