H-1B EMERGENCY UPDATE: NEW H-1B LEGISLATION INTRODUCED IN SENATE

This past week the long anticipated H-1B visa bill was finally introduced in the Senate.  Although the bill’s three primary sponsors, Senators Orrin Hatch (R-UT), Spenser Abraham (R-MI) and Phil Gramm (R-TX), are each powerful and respected members of Congress, and the bill is supported by two dozen other Congressmen, it will undoubtedly face an uphill battle to approval.  Opposition from labor unions, traditional opponents of foreign workers, will be strong, and this will in turn have an effect on the votes of many Democratic Senators who themselves traditionally support the efforts of unions.

In many ways, this battle could herald a new era in labor involvement in politics.  Throughout the 20^th century, labor unions were among the most powerful political organizations, although their influence waned after the 1960s as extensive corruption was revealed in many unions and the workforce became increasingly white collar.  As union power and membership was declining, the growing high-tech industry became more politically savvy.  If the H-1B bill, which is strongly supported by high-tech lobbying groups, is passed, it could signal the creation of a new political power.

Summary of the new H-1B Bill

Section 1. Title of the Act is the “American Competitiveness in the Twenty-First Century Act of 2000.”

Section 2. In addition to the numbers of H-1Bs already authorized, the bill raises the H-1B visa cap as follows:

FY 2000 – 80,000 (plus 115,000 already authorized)

FY 2001 – 87,500 (plus 107,500 already authorized)

FY 2002 – 130,000 (plus 65,000 already authorized)

In effect this would raise the annual cap to 195,000 visas through 2002.

Section 3. Creates new rules for universities, research institutions and graduate degree recipients.

First, the H-1B cap will not apply to anyone employed (or who has an offer of employment) at a college or university or a related nonprofit entity. It will also not apply to a nonprofit research organization or a government research organization. If someone leaves this job, then they will be become re-subject to the H-1B cap unless the next employer is also exempt.

Second, the cap will not apply to anyone who has received a master’s or higher degree from a college or university in the six months prior to the application being submitted.

Section 4. Changes rules on per country quotas for employment-based green card applicants.

If the total number of visas available in the five employment-based green card categories is more than the number of applications submitted, then requirements that prevent countries from having more than 7% of the allotment of employment-based green cards will not apply. That way, immigrant visas will not go unused if there are applications pending that would otherwise be subject to the per country limit.

This section also contains a provision that says that notwithstanding the H-1B visa cap, if an H-1B visa holder is the beneficiary of an employment-based immigrant visa petition and would be subject to the per country limit, the applicant may apply for an extension of their H-1B status until the applicant’s adjustment of status case is completed.

Section 5. This section makes H-1B visas more “portable.”

Under this section, an H-1B visa holder is allowed to begin work for a new employer at the time of submitting an H-1B petition. The INS currently holds that the change of status must be approved before work can begin for a new employer. If the change of status is denied, employment authorization will end. This rule only applies to applicants who have non-frivolous applications pending and who have not otherwise been employed illegally before or while the petition is pending.

Section 6. Extension of stay when applications are delayed by the INS. 

The H-1B visa six year time limit is not applicable to people with I-140 employment-based immigration applications or adjustment of status applications if a year or more has passed since the labor certification was filed or the I-140 was filed. H-1B visas may be extended pursuant to this section in one year increments until the final decision comes in on the green card petition.

Section 7. Extensions of parts of 1998 H-1B law.

The attestation requirements for H-1B dependent employers are extended from October 1, 2001 to October 1, 2002. The new 0 retraining fee for H-1B visa petitions is extended from October 1, 2001 to October 1, 2002.  And Department of Labor investigation provisions in the 1998 law are extended for an additional year to September 30, 2002.

Section 8. Recovery of fraudulently used visas.

If an alien issued a visa subject to the H-1B visa cap is found to have gotten the visa by fraud or willful misrepresentation and the visa is then revoked, then a visa shall be added back to the H-1B visa quota for the year in which the visa is revoked. It does not matter if the visa was originally counted for an earlier fiscal year.

Section 9. National Science Foundation study.

The NSF is required to conduct a study on the “digital divide.” This is the term used to define the gap in access to high technology between the haves and the have nots in society. The study is due no later than a year and a half after this bill passes.