New H-1B Law: July 29 to October 21

To see updates prior to July 29, 1998 on this issue, click on

 

https://www.shusterman.com/h1bflash3.html

 

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October 21: The President signed the Omnibus Appropriations Bill which contains the bill raising the H-1B Cap and the other immigration provisions enumerated in yesterday’s release (See below) within hours after the Senate approved the bill by a vote of 65 to 29.

 

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October 20 PM: The Omnibus Appropriations Bill (H.R. 4328) was passed by the House of Representatives this evening by a vote of 333 to 95. The bill contains a number of important immigration measures including (1) The raising of the H-1B cap from 65,000 to 115,000 annually, (2) Additional funding to reduce INS backlogs, (3) Amnesty for certain Haitians, and (4) A 30-month delay in section 110, the paper entry-exit system for the border.

The Senate is expected to approve the bill tomorrow, and the President must sign the bill before midnight tomorrow to keep the government running.

For details regarding the immigration provisions contained in H.R. 4328, see 1998 Legislation: It Was a Very Good Year for Immigrants.

 

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October 20 AM: Just two weeks before the General Elections, the Omnibus Appropriations Bill is expected to be passed by the House of Representatives today, and by the Senate tomorrow. The bill includes a variety of immigration measures including a bill to raise the H-1B cap from 65,000 to 115,000. The bill also provides for the future merger of the USIA into the Department of State.

 

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October 16: In a year of delayed votes in Congress, leaders announced this morning that the vote on the Omnibus Appropriations Bill which contains the immigration provisions listed in our release of October 15 (below) will not be voted upon by Congress until next week, probably on Tuesday, October 20.

 

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October 15: The following immigration items are included in the Omnibus Appropriations bill which is expected to be passed by Congress either tomorrow or Saturday: (1) A bill to increase H-1B’s to 115,000 annually on a temporary basis; (2) A 30-month delay in the implementation of Section 110 which would require paper entry and exit documents for all aliens crossing the Canadian and Mexican borders;(3) Increases in funding to shorten INS backlogs in naturalization and adjudications of applications and petitions; and (4) A bill to permit certain Haitians to adjust their status to permanent residence.

 

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October 13: The ‘American Competitiveness and Workforce Improvement Act of 1998’ (H.R. 3736) is expected to be included in the Omnibus Appropriations bill which Congress will vote on before the 105th Congress adjourns, probably before October 16.

 

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October 9: A prominent news wire service reported at 8:21pm EST that the bill which would have raised the H-1B cap to 115,000 had died in the Senate, stopped in its tracks by Senator Tom Harkin (D-IA) who does not think that there is a shortage of high-tech workers in the U.S. Sen. Harkin did say that he was willing to take another look at the issue next year.

However, as Mark Twain once said, “Reports of my death have been greatly exaggerated.” I have witnessed so-called dead immigration bills suddenly come back to life in 1986 and 1990. Harkin was only able to block a vote on H.R. 3736 because Senate rules require the unanimous consent of all Senators before the Senate can vote on a House bill before the House of Representatives does so. In all probability, the House will vote to pass the H-1B compromise bill next week, and the Senate will follow suit. However, in order to head off a possible filibuster in the Senate by Senator Harkin and some his like-minded colleagues, please read the following paragraphs:

What You Can Do: E-mail Senator Harkin at tom_harkin@harkin.senate.gov and explain to him that the H-1B category was unavailable to U.S. employers for almost five months last year, and that, this year, there are only enough visas left to last until Christmas. Therefore, U.S. employers may be unavailable to hire needed H-1B workers from December 1998 to October 1999. The computer industry is not the only industry which would benefit from the compromise bill. For example, many foreign-born physicians are working on H-1B visas in medically underserved areas across the U.S. including Iowa, Sen. Harkin’s state. The State of Iowa has even established its own program to sponsor foreign-trained physicians to come to Iowa and work in medically underserved areas on H-1B visas. Killing the H-1B compromise bill would effectively end this program. Ask Sen. Harkin to call (515) 242-6207 and speak with Roxanne Sparks at the Iowa Department of Public Health (Lucas State Office Bldg., 3rd Fl., Des Moines, IA 50319) about the value of this program to the citizens of Iowa.

Further, the compromise bill, for the first time, charges U.S. companies who employ H-1B workers $500 apiece which is earmarked to provide job training and scholarships for low income Americans. Senator Harkin is a strong advocate for American workers, and if he can be shown that the compromise bill is good for American workers and for the American people in general, he may relent and withdraw his opposition to the bill.

 

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October 7: The American Immigration Lawyers Association (AILA) has confirmed the following: The House has yet to take up the H-1B technical corrections legislation (which includes provisions that Senator Abraham and the White House had agreed upon but were not included in the House bill due to lack of time). The House technical corrections vote has been delayed because of the need to finalize language and make sure that the leaders on this legislation, several of whom are on the Judiciary Committee and thus are involved in the Starr investigation, are able to go to the floor to manage the House vote. Speaker Gingrich has just indicated that he anticipates a Wednesday night vote.

Following a House vote on the technical corrections, the Senate will take up H-1B legislation. Because these votes, in both the Senate and House, are being managed under procedures that reflect majority support, no time agreement is needed indicating when the vote will take place

 

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October 2: Congress has scheduled votes on the H-1B compromise bill (H.R. 3736) next Monday (October 5) and Tuesday (October 6). On Monday, the House of Representatives will vote on a technical amendments bill will would (1) prohibit employers from failing to pay full-time wages to an H-1B employee who has been placed in nonproductive status solely because the employee lacks a permit or license, or because of the decision of the employer; and (2) clarify various effective dates in the bill. The House is scheduled to vote on the technical amendments bill on Monday while the Senate is scheduled to take up both H.R. 3736 and the technical amendments bill on Tuesday.

 

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September 24: The House of Representatives today voted in support of H.R. 3736, compromise legislation that would increase the number of H-1B workers. The vote was 288-133.

President Clinton stated that the bill “institutes new reforms to ensure that employers do not replace U.S. workers with temporary foreign workers and requires employers to recruit U.S. workers.”

On the other side of the political aisle, Representative David Drier (R-CA) said that “the fundamental concept behind this bill is that skilled people create jobs, they don’t take up jobs.”

Even the labor unions which initially had opposed the legislation, did not oppose the compromise bill. Peggy Taylor, legislative director of the AFL-CIO stated, “There was a very bad piece of legislation and the administration, to (its) credit, stepped in to negotiate a better bill.”

Additional information will be posted as we examine the bill further. A few preliminary observations: (1) Per country quotas are not relaxed for Indian and Chinese H-1B workers seeking permanent residence; (2) This is no provision in the bill which would allow for extensions beyond six years for H-1B workers in the middle of the lengthy process of applying for permanent residence; and (3) The proposed 7,500 numerical cap for healthcare workers was eliminated from the compromise bill.

The following summary was prepared by the American Immigration Lawyers Association:

The compromise legislation is the product of an agreement that key GOP Congressional leaders stuck last night with the White House. The agreement addresses the concerns of business and non-profits (including universities) that need temporary foreign professionals to fill shortages or meet specific needs, and the concerns of the White House and others to provide enhanced protections to U.S. workers from alleged unfair labor practices. While increasing the number of H-1B visas, to generate support, it also includes worker protections and new funding for college scholarships and training for American workers.

While we are still in the process of analyzing the bill, here are some of the provisions we are aware of:

1. Increased Access to Skilled Personnel for U.S. Companies and Universities:H-1B temporary visas will be increased from the current cap of 65,000 annually to 115,000 visas in FY 99, 115,000 in FY 2000, and 107,500 in FY 2001. H-1B numbers go back to current law of 65,000 annually in FY 2002.
2. Training and Education for American Workers and Students: H.R. 3736 provides 10,000 scholarships a year for low-income students in math, engineering, and computer science through the National Science Foundation and training for many thousands of Americans through the Job Training Partnership Act. These scholarships and training programs are funded by a $500 fee per visa petition, and a $500 fee for the initial renewal of the visas. These fees are expected to raise approximately $75 million a year to fund the scholarships and training in the bill. The money is split 65% for training, 30% for scholarships, and 5% to be divided between administration and enforcement of H-1B visa program.
3. Layoff Protection for American Workers:H.R. 3736 provides three types of layoff protection for American workers. 1) A company that is H-1B dependent (see below) must attest that it will not layoff an American employee in the same job 90 days before or after the filing of a petition for an H-1B professional. 2) An H-1B dependent company acting as a contractor must attest that it similarly will not place an H-1B professional in another company to fill the same job held by a laid off American 90 days before or after the date of placement. 3) If a U.S. employer commits a willful violation and underpays an individual on an H- 1B visa and replaces an American worker, that employer will be hit with a three-year debarment from all employment immigration programs and be slapped with a $35,000 fine per violation. This third provision applies to all employers, regardless of their level of H-1B usage.
4. Recruitment Requirements on Dependent Employers:H-1B dependent companies must attest they recruit according to industry-wide standards. Moreover, they must attest that the H-1B nonimmigrant was as, or more, qualified than any American job applicant. An American not hired can file a complaint with an arbitration panel, which can fine employers found to violate this provision.
5. H-1B Dependent Companies:An employer is defined as H-1B dependent in the legislation and subject to the new recruitment and layoff attestations if its workforce consists of 15% or more H-1B visa holders. H.R. 3736 includes a provision to help smaller employers and start-ups by defining as “non-dependent” an employer with 25 employees that has no more than seven H-1Bs and an employer with 26 to 50 employees that has no more than twelve H-1Bs. Employers who are found to have committed willful violations in the prior five years will be subject to these new attestations.
6. Increased Enforcement & Penalties: H.R. 3736 increases by five-fold, to $5,000, fines for willful violators of the H-1B program, and doubles the debarment period for such violation from one to two years. It gives the Department of Labor authority to initiate “spot” investigations, without a complaint filed, on those companies found to have committed prior willful violations for a period of five years. DOL also will have the authority to investigate suspected willful and serious violations of H-1B visas if it receives specific and credible evidence of such violations and receives the personal sign-off of the Secretary of Labor.
7. Administration of H-1B Visas: H.R. 3736 requires employers to offer benefits and the opportunity to earn bonuses to H-1B employees who are similarly-employed to U.S. workers if such benefits or the opportunity to earn bonuses are available to the company’s U.S. employees. The bill provides for sanctions for violations of new whistleblower protections and contains provisions against unconscionable contracts. The division of labor between INS and DOL for processing the Labor Condition Applications (LCAs) will remain as in current law.

Next Steps: H.R. 3736 next moves to the Senate where Senator Abraham (R-MI) has indicated he will swiftly move the bill to the floor for a vote. The chances are very good that the Senate will pass the bill which then will be sent to the President for his signature. With the compromise noted above, the White House has indicated he will sign the bill.

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H-1B Vote Scheduled for September 24th:

House Leadership has scheduled a floor vote on H-1B legislation for Thursday, September 24th. The vote was delayed from this Thursday to allow Senator Spencer Abraham and the White House time to determine whether they could reach agreement on this issue. Because there will be no scheduled votes until late next Wednesday, most Representatives will be in their home districts for the next few days. Please contact your Representatives when they are home urging their support for H.R. 3736, and opposition to the Watt Substitute and a motion to recommit. When you talk to your Representative, please stress the following:

1. H-1B workers are critical to the continued growth and success of both individual companies, the business sector generally, and higher education and other members of the nonprofit sector.
2. H-1B is a good deal for America! The arbitrarily set cap has had an adverse impact on companies and communities, and severely restricts America’s ability to compete in a global economy by preventing companies from hiring the “best and the brightest.”
3. H-1B professionals do not displace American workers. In fact, these workers generate American jobs. H-1B professionals are not exploited, with exploitation being virtually nonexistent. By law, an employer must pay the prevailing or actual wage (whichever is higher), provide normal working conditions, and may not displace U.S. workers during a strike or lockout.
4. Furthermore, according to a recent survey from the electronic engineer’s trade magazine, Electronic Engineers Times, the average salary of an engineer, whether U.S. citizen or not, was $71,000.
5. Finally, many H-1B professional possess skills that are in such high demand that they are highly mobile and often elect to switch to other jobs.

Because October 1st is approaching, opponents have alleged that there is no need to raise the H-1B cap this year because 65,000 additional slots soon will be available. However, INS sources have indicated that there are at least 38,000 outstanding petitions that will be carried over from this current fiscal year. Thus, if Congress does not act to raise the cap on H-1B admissions, the cap for the coming fiscal year could be reached before December 31st.

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September 17: Congress again postponed voting on the bill to raise the H-1B Cap until next week as representatives from Senator Abraham’s office continue to negotiate with the White House in an attempt to reach a compromise.

This gives proponents of H.R. 3736 more time to contact their Members of Congress to line up additional votes for the legislation. If you would like to contact your Congressman online, and need to find his or her name and e-mail address, see

 

http://congress.nw.dc.us/c-span/search.html

The following letter, which I posted on the online “H-1B Forum” run by the San Jose Mercury News, received a number of critical comments, and virtually no support, by U.S. computer professionals, including Dr. Norman Matloff. For those who support the expansion of the H-1B program, know that this is definitely an uphill fight:

I am an immigration attorney with over 20 years of experience. I think that it is important to examine the origin of the H-1B program before either commending or condemning it.

Prior to the Immigration Act of 1990, U.S. employers were free to hire an unlimited number of foreign-born professionals under the old “H-1” program. Since the inception of the H-1 program in 1952, the Immigration Service (INS) administered the program with no input from the Labor Department.

In 1990, a new law was enacted which limited the number of “H-1B” professionals who could enter the U.S. to 65,000 per fiscal year. Also, U.S. employers were required to pay H-1B workers at the prevailing (average) wage for similarly-situated professionals working in the same geographical area, and to obtain the approval of a Labor Condition Application (LCA) from the Labor Department before submitting an H-1B petition to the INS. Employers who violate the terms of the LCA are subject to fines, back wage awards and debarment from participating in the program. So far, however, the violation rate has been less than one percent.

Since the passage of the 1990 law, several occupational groups who Congress did not originally contemplate would be able to participate in the H-1B program were added. These groups include fashion models, registered nurses, and over 4,000 physicians per year. The 65,000 cap was not raised by Congress to cover either the inclusion of these additional occupations nor to accomodate the increased number of jobs in an expanding economy.

My law firm has assisted U.S. companies in obtaining several thousand H-1 and H-1B professional employees during the past 15 years. In addition to engineers and computer professionals, we have obtained H-1B visas for scientists, business and medical professionals, and persons in a wide variety of fields ranging from accountants to zoologists.

The idea behind the H-1B visa is not to restrict U.S. employers to hiring foreign-born workers only when there is a shortage in the U.S. labor market. Most persons immigrate to the U.S. because they are related to a U.S. citizen by marriage or by being the parent, brother or sister, or son or daughter of a citizen. Whether a family-based immigrant is a Ph.D. or a dishwasher is irrelevant to their ability to immigrate to the U.S. However, the H-1B program draws primarily from foreign-born students educated in the U.S., and increases the educational level of immigrants to the U.S.

I am proud that our country is a nation of immigrants. I am especially proud of the H-1B engineers and computer scientists who go on to start their own companies and create jobs for hundreds of thousands of jobs for U.S. workers; of medical and biotech researchers who have helped develop products which have saved many thousands of lives; and of H-1B physicians who deliver primary care in medically underserved areas of the U.S.

Carl Shusterman

 

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September 16: Tomorrow, Congress (or at least the House of Representatives) is set to vote on the compromise bill (H.R. 3736) to raise the H-1B cap.

What can you do to insure passage? Call the Congressional Switchboard at (202) 224-3121 and tell your Member of Congress why he or she should support the compromise. See below, at September 10, why it is essential that H.R. 3736 be enacted into law.

 

 

The view from Congress:

Joe McMonigle, an aide to Michigan Republican Spencer Abraham, Chair of the Senate Subcommittee on Immigraton: “I think the White House recognizes the urgency of this bill and we are seeing more interest in compromise than we have before…My guess is that they’re going to do what they have to do to avoid vetoing this bill.”

The view from the White House:

Jake Siewert, a staffer for the National Economic Council: “We’ve said all along that we’re willing to raise the cap, to help high-tech continue to be the engine for economic growth that it has been…We’ve been in discussions with Senator Abraham’s office because we want to back a bill, and we’re hopeful that we get a bill that answers industry’s needs.”

 

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September 11:

The following is a letter regarding the legislation to raise the cap on H-1B visas which is currently pending in Congress. It is reprinted from today’s edition of the Los Angeles Times:

Pat Buchanan, in “GOP’s Foreign Labor Stance is Suicide” (Column Right, Sept. 6) is wrong again, dead wrong. The fact that foreign-born scientists, artists and athletes keep coming to the U.S. is what makes America the greatest country in the world.

During the Reagan years, there was no quota for temporary visas and U.S. employers were free to compete for international talent. Among the new influx of students taking computer studies as their majors at MIT, Caltech, Stanford and other top universities, many thousands were born in Asia, Europe, Canada and other countries. Commanding salaries of $60,000 to over $100,000, they are not “computer braceros”.

Americans are tired of big government, Pat. Next you’ll want the feds to tell the Chicago Cubs to send Sammy Sosa, that “baseball bracero”, back to the Dominican Republic to free up a job for a U.S.-born outfielder.

CARL SHUSTERMAN

Los Angeles

 

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September 10: H-1B Update: September 15th is National H-1B Call-In Day!

As far as the H-1B legislation is concerned, this is do-or-die time. Please heed the advice of the American Immigration Lawyers Association and take the following action immediately: It is important that you call your Representatives urging them to support H.R. 3736 (the compromise H-1B bill), oppose the Watt Substitute, and oppose a motion to recommit (which would kill the bill by sending it back to committee). The Congressional switchboard number is 202-224-3121. You also can e-mail your message to Congress. According to House Leadership, H.R.3736 should be brought to the floor the week of September 14th. It is now “crunch time” and we need your help to ensure that this legislation passes the House by a wide margin. We need a strong vote in the House of Representatives to send a signal of broad support to Congress and, more importantly, to the White House, which has threatened a veto.

When you call, please stress the following:

I. H-1B workers are critical to the continued growth and success of both individual companies as well as the business and nonprofit sectors. H.R.3736 is a good deal for America.

The arbitrarily set cap has had an adverse impact on companies and communities, and severely restricts America’s ability to compete in a global economy by preventing companies from hiring the “best and the brightest.” Cite specific examples of the continued adverse impact the cap will have if it is not raised.

This legislation must be passed NOW! The problem will only get worse. INS sources indicate that as many as 38,000 applications already may be approved or are pending for FY 1999. Thus, the cap for FY 99 could be reached as early as December 1998.

Support H.R.3736 and oppose the Watt substitute and a motion to recommit. Votes for the Watt substitute and/or a motion to recommit are votes against the H-1B program.

The September 15 National Call-In Day offers us the opportunity to join with advocates nationwide in support of H.R. 3736. This is our chance to persuade Representatives to support H.R. 3736. H.R.3736 increases the cap on H-1B professionals and, to generate bipartisan support, includes worker protections and new funding for college scholarships and training for American workers. It is the only H-1B bill Congress will debate this session, and thus demands support.

Opposition to this compromise bill has coalesced around the “Watt Substitute,” named after Representative Mel Watt (D-NC). The Watt Substitute is more restrictive than the H.R.3736 compromise. Not only are the attestations in the substitute unworkable, but the Watt substitute would: increase the visa numbers for only two years; limit the period of stay of new H-1B professionals to four years; and take increased H-1B visas from the H-2B category. It is imperative that you contact your Representatives on National Call-In Day, Tuesday, September 15. The Congressional Switchboard number is 202-224-3121. Urge your Representatives to support H.R.3736, and oppose the Watt Substitute and any motion to recommit.

What to do about your own screwed-up H-1B petition? Before you do anything, read INS’s latest thoughts on this matter.

 

 

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August 17: The INS issued a memorandum today which answered a number of questions about persons who submitted H-1B petitions while they were in legal status.

 

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August 7: The House leadership just pulled H.R. 3736, the compromise H-1B bill, from consideration on the House floor. Given that the House is recessing tonight, H.R. 3736 will not be considered until Congress reconvenes after Labor Day. House Leadership pulled the bill because, given delays due to needing to deal with appropriations bills, time simply had run out.

Please redouble your efforts over the recess. We urge you to meet with your members of Congress and urge them to vote for H.R. 3736.

 

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what exactly does the White House want in the H-1B bill?

August 1: Several days after Republican lawmakers reached a compromise on the details of the legislation to raise the H-1B cap, the White House released a two-page list of “concerns” about the bill. Chief among these concerns are the following points:

 

1. The Republican compromise would allow the H-1B cap to rise to 115,000 in fiscal years 2001 and 2002. The White House wants the cap to be returned to 65,000 after fiscal year 2000.
2. The White House wants employers hiring H-1B workers to pay a substantial fee to be used to train U.S. workers. This fee would be several hundred or even $1,000 per worker.
3. While the Republican compromise would allow arbitration panels to decide whether an employer violated an attestation, the White House wants enforcement activity to be in the hands of the Department of Labor.
4. Finally, the White House would expand the definition of who is an “H-1B dependent” employer, one who is subject to both the “no-layoff” and “recruitment” attestations. The Republican compromise defines “H-1B dependent” employers as companies with over 50 employees where 15% or more of the workers are in H-1B status and companies of 50 workers or less where at least 50% of the employees are in H-1B status. The White House would modify the definition of “H-1B dependent” employer to include any employer with more than 50 employees, 10% or more of which are in H-1B status, or any employer with 50 employees or less, at least 20% of whom are in H-1B status.

Reacting to the latest White House proposals, Senator Spencer Abraham, Chairman of the Senate Immigration Subcommittee responded through a spokesman that “while they (the White House) have delayed passage, they haven’t prevented passage.

A White House spokesman commented that “there’s no reason why we can’t fix (the bill) and reach a reasonable compromise. We’re willing to negotiate and get this done.”

Despite the Senate’s adjournment, current plans call for the House of Representatives to vote on an H-1B cap bill on Tuesday, August 4th.

 

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The H-1B Bill continues its long, strange trip…

July 31: Earlier today, the Senate adjourned for its August recess without passing a bill to expand the number of H-1B visas. This happened because, on Thursday, Senate Minority Leader Tom Daschle (D-SD) blocked consideration of the bill because the White House refuses to sign such legislation without additional worker protections.

“Unfortunately, this Republican agreement fails to provide adequate training and protections for U.S. workers,” said White House spokesman Jake Siewert. “In its current form, the president would have no choice but to veto it. We are working on proposed revisions to the Republicans’bill and would like to address the skills shortage before Congress leaves on recess.”

In the Senate, Senator Edward Kennedy (D-MA), announced plans to block debate on the bill.

Not to be outdone, Rep. Elton Gallegly (R-CA) sought to block the compromise bill in the House.

All of this comes as a severe disappointment, especially since the Republican Congressional Leadership had agreed on an H-1B compromise bill just a few days ago.

The question now is, will Congress and the White House be able to agree on compromise legislation in September, or is the H-1B bill about to become a victim of election year politics?

The bottom line seems to be: “How many people want to vote for 190,000 new foreign workers two months before an election?” said a key Republican staff member.

However, the situation remains fluid. Prohibiting the computer industry from hiring needed workers, the government threatens to kill (or maim) the goose that lays the golden eggs: a thriving economy with low unemployment and almost no inflaton. We will continue to report on attempts to reach a compromise.

 

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Summary of the Final Draft Compromise H-1B Bill (7-30-98)

 

Section 1: Short Title; Table of Contents

Section 101:

(a) Increases cap on H-1Bs as follows: 85,000 for FY 98,
and 95,000 in FY99, 105,000 in FY2000, and 115,000 for
FY 2001 and 2002.  Returns to 65,000 after FY2002.

(b) Total number of non-physician health care workers
(as described in INA 212(a)(5)(C)), who can get H-1Bs
is limited to 7,500 for FY99 through FY2002.  (Sub-cap
included in overall numbers from subsection (a)).

(c) Effective dates:  Subsection (a) effective FY98,
    subsection (b) effective FY99.

No Spillover in to FY 99 for applications filed this
fiscal year but not adjudicated.

Section 102:

(a) Attestations on H-1B dependent employers

* Attestations are required only on H-1B dependent employers
(defined in subsection (b)) not willful violators.

* No attestations are required if a required employer is
petitioning for an H-1B nonimmigrant who holds a master’s
or higher degree (or its equivalent) in a field related
to the intended employment or receives wages (including
cash bonuses and similar compensation) at an annual rate
of at least $60,000 ("exempt H-1B nonimmigrant").

* Attestations only required on LCAs filed after final
regulations issued and between 10/1/98 and 10/1/2002.

* Required employers must attest that they have not
"displaced" -- defined in subsection

(b) - and will not displace any U.S. worker employed
by them (does not include contract labor) within the
period of 90 days before and 90 days after the filing
of a visa petition based on that LCA. Required employers
must also attest that they will not place the H-1B
nonimmigrant with another employer (where there are
"indicia" of an employment relationship between the
nonimmigrant and the other employer) unless the petitioning
employer has inquired and has no knowledge of the fact
that the other employer has displaced or will displace a
U.S. worker within the 90 days before and 90 days after
filing the visa petition.

* New notice to H-1B dependent employers on LCA informing
them that if they place a nonimmigrant at another employer’s
worksite and the other employer displaces a U.S. worker
during the period described in the attestation, they are
still liable and may be subject to penalties.

* Required employers must also attest that they have taken
good-faith steps to recruit in the United States using
industry-wide standards and offering prevailing wages and
that they have offered the position to any U.S. worker who
applies and is equally or better qualified than the H-1B
Nonimmigrant.  However, employers are not prohibited from
using selection standards normal or customary to the type
of job involved.  Recruitment attestation is not required
if the H-1B nonimmigrant would otherwise qualify as an EB-1
nonimmigrant (extraordinary ability, outstanding professor
or researcher, or multinational manager or executive).

(b) H-1B dependent employer and other definitions

* An employer is "H-1B dependent" if they at least 51
full-time equivalent employees in the United States and
at least 15% non-exempt H-1B nonimmigrants. Employers
with 50 or less employers are exempt.

* "Exempt H-1B nonimmigrant" is as described above.

* When computing the number of full-time equivalent
employees, exempt H-1B nonimmigrants are not counted.

* Any group treated as a single employer under
Sections 414(b), (c), (m), or (o) of the Internal
Revenue Code is treated as a single employer for
purposes of determining dependency.

* "Displace" for purposes of the layoff attestation
is defined as the laying off a U.S. worker from a job
that is essentially the equivalent of the job for which
the H-1B nonimmigrant is sought.  A job is not
"essentially equivalent" unless it has essentially the
same responsibilities, was held by a U.S. worker with
substantially equivalent qualifications and experience,
and is located in the same area of intended employment.

* "Lay off" is defined as a worker’s loss of employment
other than through discharge for inadequate performance,
violation of workplace rules, cause, voluntary departure or
retirement, or the expiration of a grant or contract
(other than a temporary employment contract entered into
in order to evade the layoff attestation).  It does not
include any situation in which the worker is offered
similar employment with the same employer (or in the
case of third-party placement, with the other employer),
at equivalent or higher compensation and benefits,
regardless of whether such offer is accepted.

* U.S. worker means a citizen or national of the United
States, a lawful permanent resident, a lawful refugee,
or a lawful asylee.

(c) Electronic Posting.

Where there is no bargaining representative, the LCA
notice may be posted through electronic notification
to employees in the occupational classification in
which H-1B nonimmigrants are sought.

(d) Effective Dates -- The amendments in subsections
(a) and (c) are effective on or after the date final
regulations are issued to carry out the amendments
(not earlier than 10/1/98).  Subsection (b) is
effective on the date of enactment.

(e) Regulatory Comments -- The Secretary of Labor and
the Attorney General may shorten the required period
of public comment to not less than 30 days on proposed
regulations.

Section 103:

(a) Enforcement and Penalties:

* $1,000 fine and not less than 1 year debarment for failure
to meet the no strike or lockout or layoff attestations (if
required), a substantial failure to meet the working conditions,
posting or recruitment attestations, or misrepresentation of a
material fact in an application.

* $5,000 fine and not less than 1 year debarment for any
willful failure to meet any attestation condition, or willful
misrepresentation of a material fact, or violation of the
whistleblower clause.

* $25,000 fine and no less than 2 year debarment for willful
failure or misrepresentation of a material fact in the course
of which an employer displaced a U.S. worker within the 90
days before and 90 days after the filing of a visa petition
based on the application.

* Whistleblower protection: An employer may not intimidate,
threaten, restrain coerce, blacklist, discharge or otherwise
discriminate against an employee (including a former employee
or applicant for employment) because such individual has
disclosed information to the employer or anyone else regarding
a potential violation, or for cooperating in an investigation
or proceeding.  The Attorney General and Secretary of Labor
will devise a process by which H-1B nonimmigrants who file
complaints may be allowed to remain and work in the U.S. for
another employer for the remainder of their authorized admission
period.

(b) Arbitration for Disputes Involving the Qualification of U.S. Workers

* The INS will establish a process for the receipt and review
of complaints regarding an employer’s failure to offer a job
opportunity to a qualified U.S. worker (if required to so
attest) or misrepresentation of material facts with regard
to such condition.  Complaints may be filed by an aggrieved
individual who has applied for the position.  Complaints
must be filed within 12 months of the date of the failure
or misrepresentation.

* The INS will determine from the complaint whether there is
reasonable cause to believe that a violation occurred.  If
so, the Attorney General will initiate a binding arbitration
proceeding with an arbitrator from the roster of the Federal
Mediation and Conciliation Service, with proceedings under
the rules of that Service.  The INS will pay the fees for
the proceedings.

* The arbitrator cannot find a failure or misrepresentation
unless the complainant demonstrates such failure by clear
and convincing evidence.

* The INS Commissioner may review and reverse or modify the
findings of the arbitrator.

* A Federal Appeals Court may only review the review of the
Commissioner and not the underlying arbitrator’s findings.

* The Commissioner may impose a penalty of $1,000 per
violation (or $5,000 per violation for willful violations)
and at least a 1 year debarment.

(c) Liability of Petitioning Employer in Case of Placement with Another Employer.

As stated above, if an H-1B dependent employer places an H-1B
nonimmigrant with another employer and the other employer
displaces a U.S. worker within the relevant time period, the
petitioning employer may be fined $1,000 per violation,
regardless of whether or not the petitioning employer had
knowledge of the action or made the required inquiries.  A
debarment penalty may also be assessed if the petitioning
employer knew or had reason to know of the displacement at
the time the H-1B nonimmigrant was placed with the other
employer or if the petitioning employer had been previously
subject to sanctions based on placement with the same other
employer.

(d) Spot Investigations.

An employer who is found to have committed a willful violation
may be subject to random DOL investigations for a period of up
to 5 years from the date of such finding.

Section 104: Fee for Education and Training

This section imposes a fee of $250 for each approved H-1B
petition filed between 10/1/98 and 10/1/2002 to fund
education and training programs including Higher Education
Grants, scholarships for mathematics, computer science and
engineering, and training under the Job Training Partnership
Act.  The fee is to be collected by the Attorney General and
placed in a newly created Treasury Account for these purposes.
Employers may not require an alien to reimburse or otherwise
compensate the employer for this fee or they are subject to
a $1,000 fine per violation.  Fee is

Section 105: LCA to be received by INS

The LCA will be filed with the Attorney General at the same time
as the H-1B petition is filed.  The AG will be responsible for
reviewing the application for completeness, and forwarding
the application to the Labor Department.  This section will
take effect not later than 30 days after the date that final
regulations are published, which must be no later than March 1, 1999.

Section 106: Hathaway Prevailing Wage Fix; Athletic Prevailing Wages

This section specifies that for institutions of higher education,
related or affiliated nonprofit entities or nonprofit or
governmental research organizations, the prevailing wage (for both
LCAs and Permanent Labor Certifications) shall only take into
account employees at such institutions and organizations in
the area of employment.  The prevailing wage for professional
athletes in professional sports leagues is that set fort in
the league regulations.  Both changes are effective as of the
date of enactment.

Section 107: INS Counting of H-1B and H-2B numbers and Reports to Congress

INS is required to maintain accurate counts of the numbers of H-1B
and H-2B nonimmigrants who are issued visas or otherwise provided
status, including revising petition forms, and shall make quarterly
reports to Congress on the numbers.  In addition, an annual report
to Congress must include the countries of origin, occupations
educational levels, and compensation of H-1Bs in the last year.
Also requires a sub-count of number of petitions filed by higher
educational institutes, affiliated nonprofits, and nonprofit and
governmental research organizations.

Section 108: Report on Age Discrimination in the Information Technology Field

Instruct the Congressional Research Division of the Library of Congress
to contract with an appropriate entity to conduct a study on the age
discrimination in the information technology field.  Report is due to
the House and Senate Judiciary Committees by 10/1/2000.

Section 109: Report on High Tech Labor Market Needs

Requires National Science Foundation to conduct a study
to assess labor market needs for workers with high
technology skills during the next 10 years.  Report
is due to House and Senate Judiciary Committees by
10/1/2000.  Study shall be conducted in a manner that
assures participation of individuals representing
a variety of points of view.

Section 201: Special Immigrant Status for Certain NATO Civilian Employees

Provides for special immigrant status for NATO civilian
employees with long-term service in the United States and allows
for nonimmigrant status for the parents of children who qualify
as special immigrants under this section.

Section 301: Academic Honoraria

Allows payment of honoraria and associated incidental expenses to
B-1 or B-2 visitors for "usual academic activity" lasting not
longer than 9 days at a single academic institution, if
offered by an institution of higher education or affiliated
nonprofit entity or a nonprofit or governmental research
organization.  Foreign nationals cannot accept honoraria
from more than five institutions or organizations within
a six-month period.  This provision is effective on the
date of enactment.

Note: The bill does not contain any relief for immigrants subject to per-country limits.

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 The American Immigration Lawyers Association has prepared the following excellent update on the progress the negotiations on the legislation to raise the numerical cap on H-1B visas:

Update on H-1B Negotiations (7-29-98)

We have obtained some new details on the proposed H-1B compromise. While we continue to work with Congressional staff to advocate for our positions and to draft the best possible language for compromise provisions, the situation remains fluid. Key changes from our last update are as follows:

1.Dependent/Nondependent Employers: In determining dependency, H-1B workers with master’s degrees or equivalent or IRS reportable wages of $60,000 per year, are not counted. H-1B dependent employers filing petitions for individuals who meet those criteria would not be required to make the recruitment or layoff attestations for that petition. Companies or groups of companies treated as a single employer under Section 414(b), (c), (m), or (o) of the Internal Revenue Code are considered a single employer for computing dependency.

2. Numbers: Transition year (remainder of FY 98) of 20,000 includes a provision allowing petitions filed before October 1, 1998 to be counted under the FY98 cap, regardless of when adjudicated.

3. Recruitment Attestation: H-1B dependent employers would have to attest to two things: (1) they have taken good faith steps to recruit in the United States using procedures meeting industry-wide standards and offering at least the prevailing wage; and (2) they offered the position to any U.S. worker who applied who was equally or better qualified for an essentially equivalent job in the area of employment. Complaints regarding the second attestation would be administered by the Attorney General and referred to binding arbitration of a panel chosen by the employer and the U.S. worker complainant. Recruitment attestation would not be required of H-1B dependent employers when the H-1B worker would otherwise qualify under the EB-1 preference categories.

4. Layoff Attestation: H-1B dependent employers would have to attest that they have not “displaced” and will not “displace” any U.S. workers (including those employed under contract), nor has taken or will take any action (including changing a job title) to evade the condition. “Displace” means to lay off a U.S. worker from an essentially equivalent job in the same geographic area (not work site, but metropolitan area) in which the nonimmigrant is sought. However, in contract situations, it is not considered a layoff if the U.S. worker is offered similar employment with either the contracting company or the original employer at equivalent or higher compensation and benefits. Several key issues still are being actively discussed. We are working with our allies to achieve the best possible fixes.

1. Recruitment: The issue of DOL oversight of the first part of the recruitment attestation is still being negotiated. It may be subjected to arbitration along with the hiring portion. Details of the language regarding the recruitment requirements also are still being worked out. We are working to limit DOL oversight.

2. Layoff Liability: Non H-1B dependent contractors could be subject to penalties if the company they contract to “displaces” U.S. workers, regardless of whether or not they had substantive knowledge of the action. We are working to limit this strict liability.

3. Per-country limit relief: Negotiations to date have not agreed to a blanket elimination of per-country limits (as in the Senate bill). They are discussing granting a “grandfathered” H-1B extension through adjustment of status filing for those awaiting visas who have petitions on file as of the date of enactment. We are working to retain as much of this relief as possible.

4. Exemptions: The White House has begun to seek the elimination of exemptions for H-1Bs with Masters or the $60,000 wage rate. We are working to maintain these exemptions.

Other Issues: Also tentatively included in the compromise are: (1) a provision providing a prevailing wage survey safe harbor (SESA’s must accept or reject independent surveys within 45 days, or become safe harbor); LCA will be filed with INS; (2) a Hathaway fix; (3) several GAO studies; (4) electronic posting of LCAs; (5) whistleblower protection (similar to that in current regulation, but allowing for work authorization for H-1Bs who file complaints); and (6) the effective dates of these provisions.

Timing of Senate/House Action

At this time, it is unclear how a compromise bill will move through Congress, given that the House and Senate both will be conducting little business much of this week (due to the killings in the Capital). We are working to help move a bill through the Senate before they recess this weekend and through the House before they recess next week. It is important that you weigh in immediately with House and Senate leadership on the need to move H-1B legislation before the August recess with the following message:

We welcome Congressional Leadership’s assistance in workingout a compromise package on the H-1B legislation. However,some provisions of the proposed compromise give overbroadauthority to the Department of Labor. We encourage yourcontinued involvement in the negotiations to produce awell-balanced, pro-business bill. It also is imperativethat a final bill be sent to the President before theHouses recess in August.

 

 

Please make Congressional calls about the compromise to:

* Speaker of the House, Newt Gingrich (R-GA) — Phone: 202-225-4501

* House Majority Leader, Richard Armey (R-TX) — Phone: 202-225-4000

* House Majority Whip, Tom Delay (R-TX) — Phone: 202-225-0197

* Rep. Conference Chairman, John Boehner (R-OH) — Phone: 202-225-5107

* Majority Leader, Trent Lott (R-MS) — Phone: 202-224-3135

* Assistant Majority Leader, Don Nickles (R-OK) — Phone: 202-224-2708

We will let you know when the bill goes to the House and Senate

floors as soon as we know. It is important that you call your

Senators and Representatives (via the Capitol Switchboard at

202-224-3121) urging them to support the H-1B compromise bill.

White House Action Needed

Our Congressional allies have indicated to us that in order

to pass a bill the White House will not veto, there needs

to be a fee assessed on each approved H-1B petition to fund

education and training programs operated by states and the

Department of Labor, under the Job Training Partnership Act.

The amount of this fee is still being discussed, but sources

indicate that a fee as high as $1000 is being mentioned because

it would generate $100 million targeted for an education and

training program. While we are working with our allies to

limit the fee amount, it is important that you call White House

officials to register your concern with such a high fee: White

House officials to be contacted are: Gene Sperling, Director,

National Economic Councils (Phone: 202-456-2620 and

Fax: 202-456-2878) and David Beyer, Chief Domestic

Policy Advisor, Office of the Vice President (Phone: 202-456-2326

and Fax: 202-456-6231). Please relay the following message:

 

An excessive fee of $1,000 will discourage usage of
the H-1B program, thereby limiting the amount of funds
generated for education and training as well as the numbers
of H-1B professionals who help generate American jobs and
contribute to American competitiveness. Support a reasonable
fee.

 

 

Skype Consultations Available!

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