DETAILS OF THE H-1B COMPROMISE (7-27-98)
Republican leadership met late last week and agreed on the outlines of an H-1B deal. Because they are continuing to meet to work out many still unresolved issues, the situation remains fluid. The deal, as we understand it at this time, is as follows: 1. Dependent/Nondependent Employers: Dependent employers have 15% or more H-1B employees. Dependent employers would have to comply with both the recruitment and layoff attestations. (For purposes of determining dependency, H-1B employees with masters degrees or have total compensation of $60,000 are not counted.) The small business (50 employees or less) dependency percentage is 50% or higher. 2. Numbers: Transition plus four years. Transition year (remainder of FY 98) of 20,000 additional visas with no new requirements. If unused in FY 98, these numbers will spill over into the next fiscal year. Next four fiscal years, either 107,500 for each of then next four fiscal years, or 95,000, 105,000, 115,000, and 115,000. (7,500 health care workers included within those caps.) 3. The Gallegly amendment in the Smith bill (which would have limited to four years the length of stay of those with new visas issued after the first 65,000) has been dropped. 4. Recruitment attestation: DOL would not enforce hiring. Rather, a complaint will go to an arbitration panel. There will be no investigation of complaint, but some kind of discovery (yet to be worked out). Complaint process itself also needs to be worked out. DOL will enforce recruitment standards. 5. Layoff Attestation: In same geographic area (not work site, but metropolitan area). Essentially equivalent jobs. Employers must attest within 90 days before filing the application and within 90 days thereafter. For joint attestations, H-1B dependents must attest that they have inquired of the employer company, and have no knowledge that an employee of the company has been laid off to hire its H- 1B employee. H-1B dependent would be considered to have violated the layoff attestation if it turns out that a prohibited layoff had taken place. 6. Other details to follow on: per-country limit relief; prevailing wage survey safe harbor; LCAs going to INS; Hathaway fix; NSF studies; electronic posting; whistleblower protection; education and training program. House Majority Leader Dick Armey (R-TX) has indicated that the compromise may go to the House floor this week. However, with Congress not meeting for either two or four days this week due to the deaths of two Capitol Police, it is unclear when the bill would go to the House floor. While final provisions of the bill are being worked out, it remains important to contact your Representatives to urge them to support the bill. The Congressional switchboard number is 202-224-3121. Since the White House is not yet supporting the compromise, it is essential that the Administration be contacted. White House officials to be contacted are: Gene Sperling, Director, National Economic Council (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). We will keep you posted.
H-1B COMPROMISE REACHED !
July 24: Today, the Republican leadership emerged from the closed door meeting that we alerted you to in our July 22 release. They announced that they had reached a compromise to raise the H-1B cap, and that Congress would vote on the compromise legislation before adjourning for their August recess.
While the details have yet to be worked out, here are the numbers that were agreed upon:
|FY1998 85,000||FY1999 95,000||FY2000 105,000||FY2001 115,000||FY2002 115,000|
What happened to the burdensome “no-layoff” and the “recruitment attestations”?
They will be required only from employers where 15% or more of their workers are on H-1B visas, the so-called “job shops” which supply programmer/analysts and therapists to other employers. Currently, only six employers in the U.S. would be forced to met the attestation requirements.
What are lawmakers and industry representatives saying about the compromise?
One of the heroes of the compromise, Senator Spencer Abraham (R-MI), exclaimed: “This is a big victory for those who care about the critical high-tech sector of our economy…There is probably no more important legislation that Congress will pass this year to create jobs and continue the enormous growth of the high-tech and computer industries.”
Rep. Lamar Smith (R-TX), who was forced to back down on his plan to make every employer in America who hired an H-1B worker sign the attestations, placed the best spin possible on the compromise: “This agreement is good for business, good for workers, good for America. It targets likely abusers of the system with stiff penalties.”
See Rep. Smith’s press release “Smith Announces H-1B Agreement” at http://www.house.gov/lamarsmith/pr-072498.htm
Jennifer Eisen, the feisty advocate for Intel, called the compromise “livable for the business community…, a good middle ground.”
Perhaps the best comment on the compromise came from T.J. Rodgers, the President and CEO of Cypress Semiconductor in San Jose: “What it means is (that) we can get the workers we need to create more jobs… Every engineer I hire creates five jobs. This will create jobs in America; that is the bottom line.”
What is the White House’s position on the compromise?
According to Gene Sperling, assistant to President Clinton for economic policy, “There has clearly been some progress in our direction, but it is unclear at this point whether things have improved enough to support it. We need to see the details.”
If the White House does agree to the final compromise, a large share of the credit belongs to Rep. Zoe Lofgren (D-CA) who has personally taken on the task of educating the President’s staff on the reality facing the information technology sector and the economy in general unless an H-1B bill is signed into law.
Finally, what about issues like the elimination of the per-country quotas and H-1B extensions in excess of six-years for those on the waiting list for permanent residence?
These are among the “details” that have yet to be worked out, and it is up to you, Dear Readers, to write to your members of Congress immediately regarding these issues.
July 22: The following article was inspired by a letter written by Rep. Lamar Smith to the Wall Street Journal which appeared today. I spoke with a reporter from another publication today, and was informed that the Republican leadership including Senate Majority Leader Trent Lott, Speaker of the House Newt Gingrich, Senator Abraham, Rep. Smith, and others are going to have a big Pow-Wow sometime this week, lock themselves in a room, and no one will be allowed to leave until a compromise on the H-1B bill is reached.
Mr. Smith Goes to Washington…
And Private Enterprise is the Loser
The issue is simple: Who should decide who U.S. employers hire, the Department of Labor or the employers themselves? A no-brainer? Well, listen to this.
U.S. immigration laws currently permit U.S. employers to hire 65,000 foreign-born professionals on temporary visas each year. Until 1991, there was no numerical cap at all. Under present law, each hire must be pre-approved by the Labor Department to insure that each worker will receive the prevailing wage and by the Immigration Service to certify that the job is for a professional one and that the new hire possesses the appropriate educational credentials.
Early this May, the 65,000 cap was reached. The computer industry which estimates that there are 350,000 job vacancies in their field called on Congress to request that the quota be increased. The Senate held hearings on the problem and acted quickly both to increase the quota, and to provide millions of additional dollars in scholarships to American students wishing to study computers and other related sciences. The bill passed by a 78 to 20 margin, with liberals like Barbara Boxer (D-CA) joining conservatives like Jesse Helms (R-NC) in supporting its passage.
In the House of Representatives, the Chairman of the Subcommittee on Immigration and Claims, Representative Lamar Smith (R-TX) also introduced a bill to increase the quota. However, Rep. Smith imposed a new requirement on U.S. employers. His bill requires that they attest to the government that they have not laid off any U.S. workers in similar occupations and that they first attempted to recruit U.S. workers. U.S. employers, particularly those in the information technology sector, vigorously oppose Smith’s proposals as governmental meddling in their hiring decisions. Smith responds that the government should take care of U.S. workers first, and describes the administrative burden on employers as “checking two additional boxes of the visa application”. Who is correct?
A look at the history of employer attestations is instructive. The concept of the attestation is not new. An immigration law enacted by a very different Congress in 1989 required U.S. health care facilities which hired foreign-born nurses on temporary visas to submit attestations to the Labor Department. The sponsors of the law, Senator Kennedy (D-MA) and Congressman Morrison (D-CT) promised, like Rep. Smith does today, that the burdens on employers would be minimal. Although the law seemed relatively innocuous, once the Labor Department issued regulations implementing the law, Bambi suddenly turned into Godzilla.
Senators Kennedy and Rep. Morrison wrote letters to the Labor Department criticizing them for using the law as a device to expand their authority over the industry in ways never intended by Congress. Morrison described the regulations as a “nightmare”.
Although the Labor Department toned down their regulations somewhat, the amount of paperwork required to support the Labor Department’s requirements was nothing short of monumental. Our law firm prepared dozens of such attestations. Each was over 100 pages in length. Hospitals were required to disclose sensitive information, and all the information included in the attestations was open to public inspection.
“Aggrieved parties” were permitted to file complaints, anonymously if they wished, to the Labor Department against any employer who allegedly violated their attestation. There were no penalties against those who filed frivolous complaints. In fact, if the Labor Department, after an investigation, found a complaint to be unfounded, the so-called aggrieved party could then renew their complaint before an administrative law judge.
How did the law work once a complaint was filed? My law firm was retained by two hospitals who had received letters from the Labor Department that they were under investigation for attestation violations. The same nurse had filed complaints against both hospitals. Over the next few months, I did my best to cooperate with a Labor Department investigator who asked for hundreds of pages of company documents, names, addresses and phone numbers of nurses who were currently employed by the facilities as well as those who were formerly employed by the facility.
After many months and several requests for additional information, the Labor Department issued letters finding both hospitals fully in compliance with the terms of their attestations. End of story? Not quite. The complaining nurse then requested an administrative hearing against one of the hospitals in order to renew his complaint. Since the nurse was acting as his own attorney, the judge bent over backwards to allow him to try to state a cause of action, granting him extensions, and scheduling settlement conferences.
I met with the nurse at the request of the judge, and found his claims to be totally frivolous. The nurse was very insistent that he was entitled to a large sum of money, but was not able to state how the hospital had violated its attestation beyond complaining that “oriental” nurses were given promotions that he felt he was entitled to. None of the nurses that he complained about were on temporary visas. Some were U.S. citizens. None of this seemed to matter to the nurse.
Despite the fact that the hospital had done nothing wrong, their legal department eventually became exasperated by the demands of the complaining nurse and the slowness of the process. They took over the negotiations and agreed to pay the complaining nurse a tidy sum if he agreed to drop his complaint. The nurse, money in hand, did so immediately. Case closed. When the nurse attestation law expired in 1995, Congress decided not to renew it.
Memories are short. Now, Rep. Smith (with the blessings of the White House) proposes to impose an attestation law not just on the health care industry but on all U.S. employers who sponsor foreign-born professional workers for temporary visas. When Mr. Smith was first elected to Congress, the prevailing philosophy of his party was that government should interfere with private enterprise as little as possible. However, now that Rep. Smith has spent over a decade inside the Beltway, and has been granted the Chairmanship of a Subcommittee, he sees the world with new eyes: to him, government is no longer the problem, but the solution. What is so wrong about letting the Labor Department second-guess U.S. employers on their hiring decisions?
After all, as Rep. Smith states, “There is nothing to worry about for companies who are doing nothing wrong”.
LEGISLATORS TRY AGAIN FOR COMPROMISE
AS CLOCK TICKS AWAY
July 22: The clock is ticking… With Congress set to adjourn by Labor Day, members of Congress from the Silicon Valley are desperately trying to arrange a compromise between two very different H-1B bills, one (S. 1723) which passed the Senate by an overwhelming bipartisan vote in May, and the other which is still languishing in the House (H.R. 3736).
The two bills are as different as night and day. The computer industry would rather go back to vacuum tubes than support the controversial attestation provisions of H.R. 3736 which would allow any disgruntled worker to file an anonymous complaint with the Labor Department, thus initiating a process which could cost the affected company many thousands of dollars. But nosecounters say that Rep. Lamar Smith, the author of H.R. 3736, has a majority of House members behind his bill if the issue should come to a vote.
Rep. Tom Campbell (R-CA), who supports the attestations, is asking lobbyists from Hewlett-Packard, Intel and Sun Microsystems to negotiate with Rep. Smith. Such a meeting promises to be as cordial as a chat between Mr. Netanyahu and Mr. Arafat.
Meanwhile, Rep. Zoe Lofgren (D-CA) is trying to get the White House to soften it’s recently announced threat to veto any H-1B bill which does not contain both a “layoff” and a “recruitment” attestation. Can anyone possibly believe that the President would go back on his word ;-)
Stay tuned. Film at eleven.
WHITE HOUSE THREATENS TO VETO H-1B BILL UNLESS ITS CONTAINS “NO LAY-OFF” AND “RECRUITMENT” ATTESTATIONS
THE WHITE HOUSE
Office of the Press Secretary
For Immediate Release
July 16, 1998
STATEMENT BY THE PRESS SECRETARY
Congressional Consideration of Legislation
to Increase the Number of H-1B Visas
The Clinton Administration supports sound and balanced legislative efforts to address shortages of skilled workers within certain sectors of our economy. We believe that the most important way to widen the availability of skilled workers must be to improve the skills of U.S. workers and ensure that employers seek U.S. workers first. While it may be necessary in the short term to increase the number of visas for temporary foreign workers, this must only be done in conjunction with additional efforts to increase the skill level of U.S. workers and meaningful reforms to the H-1B program. We look forward to working with the Congress to achieve a reasonable, balanced bill that both protects U.S. workers and respects the good-faith business judgments of employers.
If Congress sends the President a bill that increases the cap on H-1B visas but does not contain (1) a significant training component and (2) meaningful reform to the H-1B program that ensures that employers recruit U.S. workers before applying for an H-1B worker and not lay off a U.S. worker in order to hire an H-1B worker, the President’s senior advisors will recommend that he veto the bill.
REPRESENTATIVE SMITH DEFENDS “NO LAY-OFF” AND “RECRUITMENT” ATTESTATIONS
JULY 16: On the same day that the White House threatened to veto any bill raising the H-1B cap which does not contain both the “no lay-off” and the “recruitment” attestations (i.e., S.1723), Rep. Lamar Smith, who is usually an arch-rival of the Administration on immigration policy, held a press conference and issued his own press release defending the two attestations which are contained in his H-1B bill (H.R. 3736), and championing the rights of Americans to hold jobs in the information technology industry.
See Rep. Smith’s press release and the text of his statement at his Washington, D.C. press conference at
The real issue regarding the hiring of computer professionals seems to be one of age rather than place of birth. U.S. employers prefer to hire younger information technology workers in order to preserve their competitive advantage. This trend will not easily be stemmed by restricting their access to foreign-born workers.
Can a Compromise Be Brokered?
JUNE 23: As Alice in Wonderland once observed: Things keep getting “curiouser and curiouser”. Despite the intense displeasure of the high tech sector, Congress can’t seem to agree on a bill to increase the H-1B cap.
On one side, the Senate, on May 18, passed S. 1723, a bill which would raise the cap, provide scholarships to needy Americans, effectively abolish country quotas for employment-based permanent residence, and allow extensions of H-1B status in excess of six years. The Senate bill was passed by a bipartisan coalition on a vote of 78 to 20.
Unlike the Senate, the House of Representatives has not even voted on a bill to increase the H-1B cap. The bill (H.R. 3736) which was passed by the House Judiciary Committee on May 20 would increase the cap, but would force U.S. employers to undergo “no layoff” and “recruitment” attestations of the type that doomed the ability of hospitals to hire registered nurses on temporary visas a few years ago.
The prime sponsor of the Senate bill is Senator Spencer Abraham (R-MI), the man who stood up to the former Chairman of the Senate Immigration Subcommittee, Alan Simpson, when he tried, in 1996, to cut legal immigration to the U.S. by 30%. The chief opponent of the Senate bill is Senate Edward Kennedy (D-MA) who sponsored attestation provisions which were roundly defeated by his colleagues.
The restrictive House bill is the brainchild of Representative Lamar Smith (R-TX). Curious, since one of Smith’s primary obsessions is to increase the level of education of immigrants to the U.S. Even curiouser is that Smith, the prime congressional critic of the Administration’s immigration policies, is aligned with President Clinton and Senator Kennedy on the attestation issue. The President has even threatened to veto any bill without the attestations contained in the House bill.
Between these warring factions is House Republican Majority Leader Dick Armey (R-TX), a strong conservative who is unabashedly pro-immigrant. Armey is trying to broker a compromise between Abraham and Smith. Although this may prove considerably more difficult to achieve than a comprehensive Israeli-Iraqi peace treaty, Armey recently remarked, “I’m anxious to get it done as soon as possible.”
The debate inside the Beltway has gotten “curiouser and curiouser” and boils done to whether there is really a shortage of high tech workers. Smith questions how there can be a shortage when Intel and Texas Instruments have recently announced layoffs. The companies counter that they are not laying off computer programmers and engineers.
What seems to have forgotten is that while the debate over high tech workers rages, there are no visas available for physicians approved by the Federal Government to work in medically underserved areas, for desparately needed physical and occupational therapists, for scientists and researchers, and for a wide variety of other occupations.
Text of S. 1723 and H.R. 3736
MAY 21: It is now possible to read online both the full text of S. 1723, the H-1B Cap Bill passed by the Senate, and the accompanying committee report.
The report on the bill is also available at Senate Judiciary Committee Report on S. 1723. The full text of the bill as passed by the Senate on May 18, 1998 may be viewed by clicking above, clicking again on “Full Text Bill” and one more time on
“3. American Competitiveness Act (Passed by the Senate)[S.1723.ES]”.
In addition, the H-1B cap bill which was reported to House of Representatives by the House Judiciary Committee on May 20 may be viewed at H.R. 3736
An amended version of H.R. 3736 will probably be approved by the House of Representatives in late June or early July. Then a Senate-House Conference Committee will attempt to iron out the differences between the two bills. Each House of Congress must approve the compromise, and the bill must be signed into law by President Clinton.
HOUSE JUDICIARY COMMITTEE PASSES H.R. 3736
MAY 20: In contrast to the Senate, which voted overwhelmingly for a pro-business and pro-immigration H-1B bill, the House Judiciary Committee today voted in favor of the H-1B measure introduced by Representative Lamar Smith (R- TX). We opposed this bill because, while it increases the number of H- 1Bs visas available for the remainder of this year and the next two fiscal years, it also includes onerous layoff and recruitment attestations that render the program unusable for many employers.
The Committee, made up of a Republican majority and Democratic minority that usually cannot agree on almost anything, exhibited today an unprecedented degree of bi-partisanship. Republicans on the Committee who normally would voice strong opposition to increased government intervention, today complimented Representative Smith for a job well done, asserting the need to protect American workers from foreign competition. Democrats strongly agreed with this message. A minority of Republicans, lead by Representative James Rogan (R-CA), pointed out that the attestations were unworkable and that Republicans should not be supporting a measure that increases government bureaucracy, especially given the fact that the Senate had just roundly defeated similar amendments championed by Senator Edward Kennedy (D-MA). Representative Rogan’s amendment to delete the attestations from the bill was defeated by a voted of 24–7. Representatives Bryant (R-TN), Canady (R-FL), Cannon (R-UT), Chabot (R- OH), Goodlatte (R-VA), Inglis (R-SC) joined Mr. Rogan. Proponents of the Rogan amendment expected to generate more votes, but Chairman Hyde’s (R- IL) unexpected statement during the debate in favor of the attestations limited Republican support.
With this bipartisan spirit, the Committee passed several amendments by voice vote. (Since no copies of the amendments were released, we do not have details yet.) As discussed in Committee, these amendments included:
* A Smith amendment to the recruitment attestation to redefine “qualified” U.S. worker as a person of “equal or better qualifications” than the H- 1B worker.
* A Pease (R-IN) amendment that would borrow numbers from the H-2B program.
* A Watt (D-NC)/Pease (R-IN) amendment to provide a limited exemption to the layoff attestation to Masters degree, professors, or researchers working under contract or grant at universities and research institutions. (This amendment does not include any recruitment attestation exemption.)
* A Berman (D-CA) whistleblower provision that would put into statute current regulations protecting individuals from retaliation for filing a complaint under the H-1B program.
* A Gallegly (R-CA) amendment that reduces the length of stay for individuals issued visas beyond the 65,000 cap to 4 years.
* A Jenkins (R-TN) amendment that reduces the number of health-care workers admitted under this bill from 7,500 to 5,000.
* A Lofgren (D-CA)/Pease (R-IN) amendment to require INS to provide more detailed statistics about H-1B and H-2B nonimmigrants.
Several amendments were withdrawn, including a Lofgren amendment that would have mandated a $50,000 compensation floor, and a job training/education amendment that would have included a fee for LCAs. Members discussed working on both these provisions and bringing them to the House floor for a vote.
Several amendments were defeated including Representative Rogan’s amendment, noted above, and a Conyers (D-MI) provision that would have reduced the increase in H-1B visas to 25,000 for this fiscal year and the next two years (The Smith bill increases visas by 30,000, 40,000 and 50,000 respectively.)
We have been told that this bill may be sent to the floor of the House as early as the week of June 1st. The House bill will be conferenced with the very different Senate bill shortly thereafter.
SENATE PASSES S. 1723
MAY 18: The Senate today debated and passed S. 1723, the American Competitiveness Act, introduced by Senator Spencer Abraham (R-MI), by a vote of 78-20. Along with Senator Abraham, Senators Brownback (R-KS), DeWine (R-OH), Gorton (R-WA), Gramm (R-TX), and McCain (R-AZ) spoke in support of the program. The Senate voted on, and defeated, three amendments, the layoff and attestations amendments introduced by Senator Kennedy and an amendment to end the investor visa program introduced by Senator Bumpers (D-AK).
By a vote of 60-38, the Senate voted against the layoff attestation. They also voted against the recruitment attestation, by a vote of 59-39. Senator Bumpers’ attempt to end the investor visa program also failed. The Senate then passed S. 1723 by a vote of 78-20.
HOUSE JUDICIARY COMMITTEE ACTION ON WEDNESDAY
Congratulations! Thank you for your hard work in the Senate. We need your continued help in the House. The House Judiciary Committee will mark-up H.R. 3736 on Wednesday, May 20. We oppose H.R. 3736 because of the onerous layoff and recruitment attestations. Representative Rogan (R- CA), a member of the Judiciary Committee, will be introducing an amendment in committee on Wednesday to delete these attestations from the bill. Please call your Representatives to urge them to support an increase in the H-1B cap and support the Rogan Amendment so that the bill does not include these attestations. Further, if these provisions are not removed form the bill, please urge your Representatives to oppose the bill and work to develop an Abraham companion in the House.
It is especially important to call if your Representative is a member of the Judiciary Committee. Republican Judiciary Committee members, other than Lamar Smith (R-TX), the subcommittee chair, are: Henry Hyde (IL), James Sensenbrenner (WI), McCollum (FL), Gekas (PA), Coble (NC), Gallegly (CA), Canady (FL), Inglis (SC), Goddlatte (VA), Buyer (IN), Bryant (TN), Chabot (OH), Barr (GA), Jenkins (TN), Hutchinson (AR), Pease (IN), Cannon (UT), Graham (SC). Democratic members of the Judiciary Committee are: Conyers (MI), Frank (MA), Schumer (NY), Berman (CA), Boucher (VA), Nadler (NY), Scott (VA), Watt (NC), Lofgren (CA), Jackson-Lee (TX), Waters (CA), Meehan (MA), Delahunt (MA), Wexler (FL), and Rothman (NJ).
Please contact your Representative by calling 1-800-504-0031 or 202-224- 3121.
MAY 14, 1998: The Senate vote on Senator Abraham’s H-1B bill, S. 1723, has been delayed until Monday. It is important that everyone call Senate Majority Leader Trent Lott’s office (202-224-3135) today or tomorrow urging that S. 1723 be brought to the floor on Monday.
The House Judiciary Committee probably will mark up H.R. 3736, introduced by Representative Lamar Smith (R-TX), next Tuesday or Wednesday. H.R. 3736 should be opposed in its current form because of the layoff and recruitment attestations included in the bill. They would render the H-1B program useless for U.S. employers.
Please continue to call your Senators and Representatives to urge them, respectively, to support S. 1723 and oppose all weakening amendments, and support in the House Judiciary Committee amendments to H.R. 3736 that would strip from the bill the layoff and recruitment attestations.
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Carl Shusterman served as an INS Trial Attorney (1976-82) before opening a firm specializing exclusively in US immigration law. He is a Certified Specialist in Immigration Law who has testified as an expert witness before the US Senate Immigration Subcommittee. Carl was featured in the February 2018 edition of SuperLawyers Magazine.