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April 27, 2000 Immigration News Update
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Employer Alert: H-1B Cap Reached; INS Requires
New Form to Collect H-1B Information
INS also announced in March that a new Form
I-129W must be submitted with all H-1B petitions, including change
of employer and extension of status cases. The INS will use
this new form to collect information required by the 1998 H-1B law,
and to determine whether or not the petitioner is required to pay
the $500 "training fee." All petitions filed after March
30, 2000 must include this new form.
Employers are urged to consult with their
immigration attorney about the impact of these announcements on any
pending or future cases.
The House of Representatives, following the Senate's lead, took up in March the issue of increasing the H-1B cap. Representative Lamar Smith (R-TX), Chairman of the House Immigration Subcommittee, along with Representatives Tom Campbell (R-CA), Bob Goodlatte (R-VA), and Chris Cannon (R-UT), introduced H.R. 3814, the Technology Worker Relief Act of 2000. The employer community strongly denounced this measure, which included provisions that would increase the number of H-1B visas (by only 45,000 visas) for the current fiscal year alone, but tie this increase to the Department of Labor issuing final regulations implementing the 1998 H-1B law, thereby holding the additional visas hostage to bureaucracy. In addition, in order to apply for the additional visas, an employer must demonstrate that in the last year it has increased its overall employment of U.S. workers, its total payroll provisions in the United States, and its median salary levels. The increased employment and payroll provisions amount to a new no-layoff attestation on all employers and make no sense in the current business climate where many companies need to let go of unprofitable departments and projects, but may still need the particular expertise of an H-1B non-immigrant in a new project. Other provisions of the bill included permanent changes to the H-1B program, requiring that H-1B non-immigrants only work full-time (at least 35 hours per week) and eliminating experience equivalence to a degree for H-1B beneficiaries. Following the introduction of the Smith bill, a bi-partisan group of Representatives, led by David Dreier (R-CA) and Zoe Lofgren (D-CA), introduced H.R. 3983 on March 15. The Helping to Improve Technology Education and Achievement (or HI-TECH Act) has strong bi-partisan support from key Representatives, including Dick Armey (R-TX), the Majority Leader, Tom Davis (R-VA), the chairman of the Republican Congressional Campaign Committee, and Representative Patrick Kennedy (D-RI), chairman of the Democratic Congressional Campaign Committee. Minority Leader Richard Gephardt (D-MO) also has indicated his support for the measure. H.R. 3983 would:
The business community hailed this bill as a
balanced approach that would allow for a reasonable increase in the
cap while also emphasizing the continuing need to educate and train
U.S. workers for future high-tech positions. While some
proponents still are concerned about the impact of the increased
visa fees on non-profits, small businesses and state and local
governments that are increasingly using the H-1B program, H.R. 3983
offers the best chance to successfully move an H-1B bill through the
House. In fact, this measure continues to generate bipartisan
support as evidenced by growing a list of co-sponsors from both
sides of the aisle.
However, Chairman Smith is continuing to try to
exert his influence. He recently introduced a "new"
version of his H-1B bill, H.R. 4227, and scheduled a markup in the
Immigration Subcommittee directly after introduction. Still named
the Technology Worker Temporary Relief Act, the bill is very similar
to the earlier H.R. 3814. While this new bill would eliminate
the H-1B cap through FY 2002, it also would maintain most of the
same restrictive provisions on the use of these visas that were in
his earlier bill: tying additional visa numbers to the INS and
Department of Labor (DOL) issuing regulations from ACWIA; requiring
employers to attest that they have hired more U.S. workers and have
a higher total and average payroll than in the previous year;
eliminating part-time H-1Bs and work experience equivalencies; and
requiring employers to have gross assets of at least $250,000. H.R.
4227 also adds additional poison pills, including requiring DOL to
post on the Internet the name and personal data of all H-1B
recipients, setting a minimum pay of $40,000 for recipients, and
eliminating the use of B-1 visas in lieu of H-1Bs. The bill
also would mandate that the State Department count H-1Bs and certify
foreign degrees. Finally, H.R. 4227 would require that all H-1B
professionals in teaching positions demonstrate English language
proficiency.
In his opening statement at the subcommittee
markup, Representative Smith reiterated that "there is still no
objective, credible study that documents a shortage of American
high-tech workers," and called for increasing the skill levels
of family-based immigrants. Democratic members urged Chairman
Smith to address other important immigration issues this year,
including granting relief to Central Americans who were bypassed by
recent laws and individuals who were unfairly blocked by the
government from applying for the amnesty program in the
mid-eighties. Other members of the subcommittee urged that
agricultural worker issues be addressed as well. While
Representative Lofgren offered H.R. 3983 as a substitute for the
Chairman's bill, the amendment was withdrawn on a technicality, and
H.R. 4227 was passed by a voice vote, although many Democrats voted
against the bill.
Senate H-1B Bill Passes Committee, Heads to
Floor
During debate, the committee adopted two
amendments to the base bill: a Feinsten/Abraham provision that would
redirect H-1B fees to K-12 education and National Science
Foundation-run low-income college scholarship programs; and one
offered by Joseph Biden (D-DE) that would address the so-called
"digital divide" by providing funds to install computers
and hire computer trainers at Boys and Girls Clubs nationwide.
Both of these amendments, and the debate they generated, suggest the
importance of education and training of U.S. workers and the need to
retool our education system.
House and Senate Poised to Make Visa Waiver
Program Permanent
In addition to making the program permanent,
H.R. 3767 requires the Attorney General to develop an automated
system to track the entries and departures of visa waiver program
participants at airports and seaports. The bill also places
increased restrictions on the ability of the Attorney General to
parole inadmissible visa waiver applicants into the country, absent
"compelling reasons in the public interest or compelling health
considerations."
The Senate Judiciary Committee, by voice vote
on April 13, passed its version of the visa waiver bill, S. 2367.
That measure, sponsored by Senator Spencer Abraham (R-MI), Chairman
of the Immigration Subcommittee, does not contain the provisions of
the House bill relating to entry-exit tracking, parole restrictions,
or rescission of a country's visa waiver status. The Senate
bill is expected to go to the floor in late April or May.
Backlog Reduction Bills Proposed in Congress
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