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| FREE NEWSLETTER | |
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APRIL 2, 1998: The Senate Judiciary Committee passed S. 1723 by a vote of 12 to 6. The following changes were made to S.1723 prior to the vote:
1. Instead of a permanent increase in the H-1B cap, the increased cap will sunset in five years.
2. Instead of doubling the number of H-1Bs granted from October 1, 1997 to March 31, 1998, the H-1B cap for fiscal year 1998 will be 95,000.
3. In fiscal years 1999 through 2002, health care professionals (with the exception of physicians) will be placed in a new H-1C category with a yearly cap of 10,000. The H-1B cap will be 85,000 plus up to 20,000 H-2B visas (if this many H-2B visas remain unused in the previous year).
4. Any employer who uses an H-1B worker to replace a laid-off U.S. worker will be barred from filing any employment-based petitions (immigrant as well as nonimmigrant) with the INS for two years, and may be fined up to $25,000 per violation.
5. The Wage and Hour Division of the Labor Department is authorized to initiate investigations against employers, even in the absence of a complaint being filed with the government.
Senator Kennedy had proposed alternate legislation which would have limited the increase in the H-1B cap to 90,000 until 2001, required layoff and recruitment attestations, and limited the maximum duration of H-1B status to three years. Kennedy's bill was defeated by a 10 to 8 party line vote. Senator Feinstein then introduced an amendment to S. 1723 to limit H-1B status to three years. Her amendment was also defeated by a 10 to 8 party line vote.
Congress went into recess from April 3 to April 19. A vote on S. 1723 is expected to take place in the Senate shortly after the recess. The House version of the bill, introduced by Representative Dryer and supported by House Immigration Subcommittee Chairman Smith is also expected to be voted on before the end of April.
MARCH 6, 1998: Senator Spencer Abraham, the Chairman of the Senate Immigration Subcommittee, introduced the American Competitiveness Act (S.1723). S.1723's primary objective is to increase the numerical cap of H-1B visas before all numbers are used by May or June of 1998. However, S. 1723 would amend existing law in a number of other significant ways. This article attempts to explain some of the highlights of S. 1723:
In fiscal year 1998, the usage of H-1B numbers is expected to reach approximately 45,000 by March 31, 1998 and the 65,000 cap may be reached as early as May or June.
According to testimony presented to the Senate Judiciary Subcommittee on Immigration on February 25, 1998, the inability to hire H-1B professionals would wreck havoc on the Information Technology industry.
Accordingly, S. 1723 would increase the H-1B numerical cap for FY1998 by adjusting the cap to double the number of H-1B granted during the first six months of the FY. This is expected to allow U.S. employers to hire approximately 90,000 H-1B professional employees during FY1998.
In addition, S. 1723 would permit, in future years, U.S. employers to utilize unused numbers from the temporary H-2B skilled workers category. The H-2B program has a numerical cap of 66,000 annually. However, in practice, less than 20,000 of these numbers are used each year.
Finally, S. 1723 would remove professional health care workers (other than physicians) from the H-1B category beginning on October 1, 1998 and place them in a new "H-1C" category. This category would be subject to a numerical cap of 10,000 annually, far below what industry experts estimate to be the current H-1B usage by health care workers. S. 1723 does not define "health care worker", but potentially the category could include registered nurses (whose H-1A category was allowed to sunset in 1995), dentists, dietitians, medical technologists, occupational therapists, pharmacists, physical therapists, physician assistants and, potentially, a wide variety of other occupations.
In addition, the bill would allocate up to $10 million annually for each of the next five years for training U.S. workers who wish to seek employment in the information technology industry.
Finally, S. 1723 would authorize the Labor Department to establish (or improve) a job bank on the Internet to match U.S. workers with jobs in high technology industries.
Although the government promised that the LCA process would not unduly burden employers, and that the Labor Department would adjudicate LCAs within seven days, by 1998, the Labor Department was routinely taking 30 to 40 days to stamp an approval on an LCA and return the form to the employer. This substantially diminished the usefulness of the H-1B program since the INS refuses to accept H-1B petitions unaccompanied by approved LCAs.
S. 1723 would break through this logjam by allowing employers to submit LCAs directly to the INS together with their H-1B petitions. The INS would forward certified copies of the LCAs to the Wage and Hour Division of the Labor Department for enforcement purposes. The INS would be required to decide H-1B petitions within 30 days.
Penalties would occur only where an LCA violation was "willful". Civil monetary penalties would be raised from $1,000 to $5,000 per violation. Employers with violations would be subject to random inspections by the Labor Department. LCA posting requirements would be modified.
S. 1723 would, for the first time, define the term "prevailing wage", a definition which would apply both to H-1B and H-1C petitions and to petitions for permanent residence.
Finally, S. 1723 would effectively overrule the decision of the Board of Alien Labor Certification Appeals in Matter of Hathaway Children's Services m 91-INA-388, (February 4, 1994). Hathaway ruled that the nature of the employer was not a relevant factor in determining whether workers were similarly employed for purposes of wage determinations. As a result, small non-profit employers and research laboratories were barred from petitioning for H-1B workers unless their pay rates matched those of large, for-profit employers.
S. 1723 provides that if the number of permanent resident visas under any of the five employment-based categories exceeds the demand for visas in that category during a calendar quarter, during the remainder of the calendar quarter the extra visas shall be allocated without regard to the per-country limitations. As a practical matter, this section will decrease or may eliminate the backlogs in the first, second, and third employment-based categories for persons born in the PRC and India.
Furthermore, if any backlogs remain in any of the first three employment-based categories, persons may extend their H-1B or H-1C status beyond the current six-year maximum duration until they are qualified to apply for adjustment of status.
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