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Congress Increases H-1B Visa Numbers (Oct. 2000)
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Congress Increases H-1B Visa Numbers, Provides Relief from INS Delays By Stanley Mailman and Stephen Yale-Loehr* On October 17 President Clinton signed legislation, S. 2045, that raises the numerical cap on new H-1B workers and eases the hardships that they and their employers face as a result of delays in the immigration processing system. At the same time, the President signed a companion bill, H.R. 5362, which doubles the surcharge on petitioning H-1B employers to $1000. The proceeds of the surcharge, paid on top of the usual filing fee, are used to boost U.S. education and training in the sciences, mathematics, and technology, in an effort to reduce U.S. dependence on foreign professional workers. The President applauded the increase in funds that H.R. 5362 will make available, but expressed concern that some of S. 2045’s provisions could result in deliberate or inadvertent violations of current prevailing-wage requirements. He is directing the Immigration and Naturalization Service (INS) "to closely monitor the impact of these provisions to determine whether the next Congress should revisit these changes made to the H-1B program." This article discusses the new H-1B provisions and the measures taken to deal with immigration delays. Organizations that lean heavily on personnel trained in computer programming, engineering, and the sciences, particularly universities and high-tech companies, have been clamoring for an increase in the number of temporary workers permitted to enter in H-1B status. According to them, there is such a shortage of U.S. workers able to work with computers in technical and financial services occupations that the jobs will go to subcontractors in India and Pakistan if they can’t be filled by H-1B workers. The H-1B classification is available to persons qualified for a "specialty occupation," that is, one using a body of highly specialized knowledge which ordinarily requires a university program in the specialty, at least at the baccalaureate level, or its equivalent. See Immigration and Nationality Act (INA) § 214(i), 8 U.S.C. § 1184(i). Since the Immigration Act of 1990, H-1B employers also have to file a labor condition application (LCA) with the Department of Labor. See INA § 212(n), 8 U.S.C. § 1182(n). In that LCA, an employer attests among other things that it will pay the foreign worker at least the prevailing wage in the area, and not less than it pays its other employees who are similarly qualified; and that it will not impose less favorable working conditions. Another innovation introduced in 1990 was an annual cap of 65,000 on new H-1B workers, which was later raised. Until 1990 there was no limit on the number of persons who could come in any nonimmigrant (temporary) classification. And, in another legislative first, the 1990 Act imposed a firm limit on the length of time a worker could continuously hold H-1B status – six years. All of these changes, together with continuing delays in the processing of immigration applications, figure in the pressures that S. 2045 seeks to relieve. Start with the initial numerical cap, which first signaled an upcoming squeeze in early September 1997, when it prevented petition approvals almost a month before the end of that fiscal year. Pushed by a warming economy and a shortage of U.S. workers with math and science skills, U.S. industry, led by computer and information-services companies, began pressing Congress harder to raise the numerical cap. Before Congress did so, however, the existing allotment of 65,000 ran out even earlier during the next fiscal year – in June 1998. In late 1998 Congress increased the numerical cap for H-1B workers according to the following schedule: 115,000 for fiscal years 1999 and 2000, 107,500 for FY 2001, and 65,000 thereafter. See INA § 214(g), 8 U.S.C. § 1184(g), as amended by Pub. L. No. 105-277, tit. iv, § 411(a), 111 Stat. 2681. U.S. employers continued to file H-1B petitions in record numbers, exhausting the allocations for 1999 and 2000 about halfway through each fiscal year. As passed by Congress, section 102 of S. 2045 raises the annual cap to 195,000 for fiscal years 2001 through 2003. It also increases the allocation for FY 1999 to cover any H-1Bs actually approved for that period (even by miscalculation, as the Immigration and Naturalization Service (INS) figured last year). And for FY 2000, it raises the limit to include all petitions filed before September 1, 2000, thereby removing from the FY 2001 count over five months’ worth of petitions filed after the FY 2000 allocation was exhausted. Section 103 goes further, eliminating from the count H-1Bs coming to work for institutions of higher education, nonprofit research organizations, and government research organizations, although they will be added back if they change jobs to a non-exempt employer in the year that switch occurs. Moreover, the provision explicitly adopts the Service’s administrative practice of counting only one petition when more than one employer files for the same worker, either in turn or when the employee takes on several jobs. This section also exempts H-1B nonimmigrants who were counted toward a cap in the prior six years unless they are authorized for a full six years to come. This overrules an INS practice of counting petitions filed for formerly approved H-1Bs if they are outside the United States at the time of filing, even though they have not exceeded their six-year stay, simply because it failed to develop a methodology to exclude them. Stricken from section 103 (although retained in its title) is a provision that would have excluded from the count those who have graduate degrees. In a late addition to the new law, section 114 exempts from the H-1B cap some physicians who have taken graduate medical training in exchange-visitor (J-1) status. Under INA § 212(e), 8 U.S.C. § 1182(e), they must ordinarily live and work in their home-country for two years before they are eligible for H-1B status or permanent residence. One of the few waivers of the two-year bar involves a commitment to work in a medically underserved area of the United States while in H-1B status. Under section 114, the H-1B numerical cap does not apply to these physicians. Several sections address the problems of H-1Bs and some other nonimmigrants who, because of quota shortages or administrative delays in processing their papers, are delayed in qualifying for permanent residence. (Under the law, no more than seven percent of the annual immigrant visa allocation may be used by the natives of any single country, and no more than two percent for any dependent area. See INA § 202, 8 U.S.C. § 1152.) Limited to a specified stay, these workers might otherwise have to leave the country, vacating a job that their employers are hard put to fill. For example, per-country limitations currently cause a backlog in some of the employment-based (EB) immigrant visa preferences for natives of China and India, countries that currently supply many H-1B workers. Under section 104, an applicant for permanent residence in any one of the employment preferences who would be stymied by the per-country limits can draw on any unused numbers available within the total employment-based allocation. A companion provision gives another benefit to those for whom a visa petition is filed in one of the first three EB preferences but whose application for adjustment of status is delayed by the per-country limits. Those limits can block the availability of an immigrant visa number needed both at the time an adjustment application is filed and when it is ripe for approval. In either event, it would seem, this provision allows the Service to extend the H-1B status until the adjustment application is decided, even though that additional period would take the individual past the six-year limit on H-1B stays. (The title of this provision, "One-time Protection under the Per Country Ceiling," seems mistaken: it is at odds with its text and its stated object – to extend temporary status "until the alien’s application for adjustment of status has been processed and a decision made thereon."). S. 2045 also addresses delays in adjudication by increasing the portability of H-1B status. Section 105 authorizes the worker to switch jobs as soon as the new employer files an H-1B petition, assuming the petition is not frivolous and the worker is still in valid status. Effective on enactment, section 105 covers petitions filed earlier, so that H-1B workers awaiting action on a new employer’s petition can start work right away. It would also seem to cover those who started a new job before petition approval and before S. 2045 was signed. Query whether it will accommodate a motion to reopen in the case of an H-1B nonimmigrant for whom a continuation of H-1B status to work for a new employer was already denied, although the petition was approved, because she started the job prematurely. (Ordinarily, that worker would have to leave the United States and seek readmission in H-1B status upon obtaining a visa.) Section 106 is another provision that is supposed to ameliorate delays by H-1B nonimmigrants in gaining residence. It exempts them from the six-year ceiling on H-1B stays if their EB petition or adjustment application based on an EB preference has been filed, and the petition or labor certification (if one is needed) has been pending for a year or more. In either case they are entitled to one-year extensions until a final decision is made on their application for lawful permanent residence. It is clear from this that the beneficiary of an EB petition pending for one year should get the H-1B extension despite the six-year cap. Does it also intend to benefit the H-1B nonimmigrant for whom an application for labor certification has been pending that long? It is hard to understand what the drafters had in mind in suggesting that a petition could even be filed without the labor certification, if one were needed, or that an EB adjustment application could be filed without approval of the underlying EB petition. It is unlikely that Congress only intended to benefit someone who filed an adjustment application on the basis of an approved visa petition, but who now seeks to rely for the adjustment on another petition by the same employer for a different preference, or on a petition by a different employer, and in either case the second petition or its underlying labor certification has languished a year or more without decision. As that possibility aims at such a narrow target, it is more likely that Congress simply failed to articulate its intention more clearly and should do a technical amendment. Although much of S. 2045 relates to H-1B nonimmigrants, section 106(c) more generally addresses a major hardship to employment-based applicants for permanent residence when an administrative agency unduly delays decision on the application for their labor certification or adjustment. If their adjustment application has been pending for at least 180 days, their EB petition remains valid with respect to a new job, if they change employers or jobs, as long as the new job is in the "same or a similar occupational classification." Under the same circumstances, this subsection preserves the validity of a labor certification. In short, bureaucratic delays will no longer hold these employees indefinitely hostage to their old job. Note that these provisions do not apply to first-preference individuals who qualify on the basis of their "extraordinary ability" and do not need a labor certification. They can file on their own, as their petitions are not job specific. Even if an employer has filed their petition, a change of job does not affect the petition as long as the new activity will continue to benefit the United States. See letter from Edward Skerrett, Chief Immigrant Branch, INS Adjudications, to lawyer William Z. Reich, File No. HQ 204 24-C (Aug. 10, 1995) (in context of EB second-preference national-interest waiver but applicable also to extraordinary ability petitions), discussed and reproduced at 72 Interpreter Releases 1274, 1281 (Sept. 18, 1995). Nor does the provision affect the fourth EB preference, mainly relating to religious occupations, or the fifth EB preference, relating to immigrant investors. S. 2045 also pursues the root causes of Service delays. It aims to cut the current backlogs in processing applications for immigration status within one year, and to prevent them from recurring. For the future, it states the sense of Congress that the Service should act on permanent residence ("green card") applications within 180 days, and on petitions relating to H, L, O, and P nonimmigrants within thirty days. Congress accepts that we may have to spend more money to reduce delay, but it directs the Service to estimate how much it will cost, and to submit detailed reports on where it is now and what specific steps it must take to achieve the goals set by Congress. Still, prompt attention to applications for immigration benefits may be more than the INS can achieve when its culture has so long been shaped by its border-control mission. In raising the H-1B cap in 1998, Congress determined to reduce our future dependence on foreign workers by using part of the funds, coming from the new surcharge, for science and math scholarships and training programs. S. 2045 reallocates those funds, increases scholarships for math, engineering, and computer science degrees, and provides money for Department of Labor demonstration projects and training programs, and for National Science Foundation educational grants. By doubling the surcharge, H.R. 5362 will yield even more money for these purposes. But if Diane Ravitch (see Left Back (Simon & Schuster 2000)) and other education experts are right, it will take more than a quick infusion of money and programs to do the job. According to them, many of our grade schools have failed to provide youngsters with a core education that exposes them to good literature, gives them reading skills at an early age, and teaches them how to do basic math. And the curricula of U.S. public high schools have so long assumed that most students are incapable of doing rigorous academic study that it will be some time before we are able to field an array of professional workers equal to the mammoth needs of our industrial and scientific communities. As the shortage of suitably trained personnel is likely to continue for some time, U.S. companies, universities, and research institutions are grateful for the extra H-1B numbers that S. 2045 provides. And they are also pleased with the provisions that ease the effects of processing delays for employment-based immigrants. But bar associations and human rights groups are disappointed with Congress’s failure so far to include provisions sought by the President that would permit longtime residents to regularize their immigration status in the United States.
bio info: * Stanley Mailman (smailman@compuserve.com) and Stephen Yale-Loehr (syl@millermayer.com) are co-authors of Immigration Law and Procedure, published by Matthew Bender and Co. Inc. (http://www.bender.com). They also write a regular column for the New York Law Journal (http://www.nylj.com). Mr. Mailman is counsel to Satterlee Stephens Burke & Burke in New York City. Mr. Yale-Loehr practices immigration law at Miller Mayer (http://www.millermayer.com/) in Ithaca, New York, and teaches immigration law at Cornell Law School. This article originally appeared in the October 23, 2000 issue of the New York Law Journal. Copyright © 2000 the New York Law Publishing Company. The authors thank the Journal for permission to reprint this article. For further information on these or any other immigration issues, please contact Miller Mayer, LLP.
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