April 27, 2000 Immigration News Update
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Business
Immigration News Update
from True, Walsh & Miller
April 27, 2000
Employer Alert: H-1B Cap Reached; INS Requires
New Form to Collect H-1B Information
Congressional News: House Begins H-1B Roller
Coaster Ride
Senate H-1B Bill Passes Committee, Heads to
Floor
House and Senate Poised to Make Visa Waiver
Program Permanent
Backlog Reduction Bills Proposed in Congress
Immigration Advocates Urge Broader Agenda This
Congress
INS Audit Confirms Overissuance of H-1B Visas
Last Year
State Department Imposes New J Visa Fees
Employer Alert: H-1B Cap Reached; INS Requires
New Form to Collect H-1B Information
The INS announced in the Federal Register on
March 21 that it had enough approved H-1B petitions and cap-subject
cases filed at the four Service Centers to reach the FY 2000 limit
of 115,000 new H-1B approvals. According to the notice, the
INS no longer will accept petitions asking for a date before October
1, 2000. However, due to pending legislation, the INS has
agreed that petitioners who state "October 1, 2000 or
earlier" on the petition form will be eligible for any new
visas made available this year. The INS also has stated that
it will extend the nonimmigrant status of F-1 and J-1 students with
pending H-1B change of status petitions. However, their work
authorization will expire with their current practical training
permission.
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.
Congressional News: House Begins H-1B Roller
Coaster Ride
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:
-
Increase the limit on
H-1B visas to 200,000 for FYs 2001, 2002 and 2003, and "set
aside" 10,000 visas for employees of higher educational
institutions, and government and non-profit research institutions,
and 60,000 visas for individuals who hold masters or higher degrees
(or their equivalent).
Deal with the problems
resulting from the per-country limits in business immigration by
allowing unused visas to spill over to over-subscribed countries.
Allow "carryover
visas" from FY 99 that were counted against the FY 2000 cap to
go back to FY 99, thereby freeing additional visas for this year.
Allow extension of
H-1B status for those hitting the six-year limit due to INS and
Department of Labor (DOL) delays in processing immigrant visa cases
or the per country limit.
Recapture
employment-based immigrant visas that were "lost" in the
last two fiscal years because of INS delays in processing
Allow companies that
must document U.S. recruiting to use Internet recruiting
exclusively; mandate that INS and DOL institute Web-based case
tracking systems within one year, and institute a Technology
Advisory Council for those agencies to look at developing web-based
case filing systems.
Require employers to
file annually with DOL copies of the W-2 forms for their H-1B
employees.
Increase the
"training" fee to $1000 for initial H-1B petitions-the fee
remains $500 for extensions and change of employers.
The bill also
redirects the H-1B fees to student loan forgiveness for math and
science teachers, "Upward Bound" projects in science and
mathematics education, low-income college scholarships, and regional
skills training alliances.
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.
Following the markup, employer groups announced
that H.R. 4227 does not respond to the need for educated
professionals because it makes any additional numbers virtually
inaccessible, and reiterated their support of H.R. 3983. Since
Representative Dreier (who is Chairman of the House Rules Committee
-- which functions as the arbiter for how and which bills get to the
floor for a vote) is the original sponsor of H.R. 3983,
employer advocates are hopeful that his bill will be the vehicle
that ultimately passes the House. However, advocacy is needed
to ensure this happens. Business immigration advocates should
urge their Representatives to co-sponsor H.R. 3983 and pressure
House leadership to move that bill to the floor as soon as possible.
Senate H-1B Bill Passes Committee, Heads to
Floor
The Senate Judiciary Committee on March 9
marked-up and passed (by a 16-2 vote) S. 2045, the American
Competitiveness in the 21st Century Act. S. 2045 is sponsored
by Judiciary Committee Chairman Orrin Hatch (R-UT) and Senator
Spencer Abraham (R-MI), among others. The two Senators voting
against the bill were Edward Kennedy (D-MA) and Russ Feingold
(D-WI). The bill may come to the Senate floor soon.
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.
The committee also defeated (by a 10-8 vote) a
substitute amendment offered by Senator Kennedy. The
substitute, which the Senator may introduce as a stand-alone bill,
would:
-
Increase the H-1B cap
to only 145,000 for the next three fiscal years, while providing an
exemption from the cap for advanced degree holders. Additionally,
the bill would require at least 45,000 visas in FY 2000, 50,000 in
FY 2001, and 55,000 in FY 2002 go to advanced degree holders.
-
Increase the so-called
"training" fee for H-1B petitions introduced by the
American Competitiveness and Workforce Improvement Act of 1998 (ACWIA).
The fee would be on a sliding scale, with employers of 150 or less
paying $1000, employers of 150-500 employees paying $2000, and the
largest employers paying $3000. The substitute also would require
smaller H-1B dependent employers (with at least 51 employees and 15%
H-1Bs) to pay $3000. The fees would be directed primarily to
new, short-term training programs under the Department of Labor.
-
Extend the no-layoff
attestation required of dependent employers under ACWIA to six
months before and after the filing of an H-1B visa petition and
require employers to "make efforts to continually train and
update the existing skills of incumbent employees and to promote
such employees where possible."
-
Require the Department
of Labor to conduct "an ongoing survey of the level of
compliance by employers" with the provisions of the H-1B
program. This "survey" would be conducted on a
random sample of petitioning employers.
Business advocates should continue to contact
their Senators and urge their support for S. 2045 when it comes to
the floor for a vote.
House and Senate Poised to Make Visa Waiver
Program Permanent
On April 11, the House passed H.R. 3767, the
Visa Waiver Permanent Program Act, introduced in early March by
Representatives Smith and Sheila Jackson-Lee (D-TX). H.R.
3767, which travel and tourism groups strongly support, makes
permanent the Visa Waiver Pilot Program enacted in 1986. The
Visa Waiver Program allows nationals of designated countries to
apply to enter the United States as temporary visitors for business
or pleasure for up to 90 days without first obtaining a visa from a
consular office. Under this program, which Congress several
times has routinely extended, the Attorney General designates
countries to participate based on their reciprocal treatment to U.S.
citizens, low denial rate at consulates for visitors visas, and low
"overstay" rate in the United States for their nationals.
The Visa Waiver Program hosts about 17 million visitors each year,
according to the INS.
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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