BILL TO RAISE H-1B CAP PASSES SENATE JUDICIARY COMMITTEE

Last month we reported on the fact that the annual 65,000 H-1B cap is approaching its limit several months early and that Congress has been considering raising the annual limit either temporarily or permanently. As of the beginning of March, 42,973 H-1B visas had been issued and with the looming reaching of the annual limit, there has been a rush of H-1B filings.

We also previously reported on Senate Immigration Subcommittee hearings on the matter and analyzed the various issues being discussed in our last issue. The Senate Judiciary Committee has now passed the "American Competitiveness Act" (S. 1723), Senate Immigration Subcommittee Chairman Spencer Abraham's bill on the matter. S.1723 is linked in the Documents Collection of our web site (http://www.visalaw.com/docs). The Committee passed the bill by a margin of 12 to 6. The twelve yes votes were Republican Senators Hatch, Thurmond, Grassley, Specter , Thompson, Kyl, DeWine, Ashcroft, Abraham and Sessions as well as Democratic Senators Feinstein and Kohl. The other Democrats on the Committee - Leahy, Kennedy, Biden, Feingold, Durbin and Torricelli - all followed the lead of organized labor and voted no.

The Abraham bill allows for an immediate increase of the limit to 95,000 in 1998. The limit would drop to 85,000 the next year, but has safety valve provisions allowing for an increase to 115,000 (the bill allows for borrowing from the very under-utilized H-2B category). The increase is set for five years and then Congress must renew the raised cap. This is a compromise between the bill's original permanent increase and the Democratic proposal by Senators Kennedy (D-MA) and Feinstein (D-CA) that would have limited the increase to 90,000 visas for just a three year period. The rejected proposal also would have limited H-1B visas to three years and imposed a $250 application fee on H-1B visas to support a $100 million retraining fund for US workers.

Abraham's bill does not contain the layoff protections for American workers called for in the Democrats' bill, but it does increase by fivefold (to $5000) the penalties for violating the H-1B rules. The Department of Labor is given greater authority to initiate investigations and does not need to rely on complaints.

The bill also contains authorization for 10,000 annual H-1C visas for nurses working in health professional shortage areas. We reported on the proposed H-1C visa in our last issue.

The passage of the Abraham bill comes on the heels of a recent General Accounting Office study that challenged well-publicized recent reports of a massive shortage of high-tech workers in the US. The report did not state that there was not a shortage, but it did question the methodology used in the other reports. The Abraham bill allocates funding for a National Science Foundation study to determine the nation's high-tech worker needs over the next decade.

House Immigration Committee Chairman Lamar Smith has indicated he will hold H-1B hearings on April 21st and will then introduce his H-1B bill. Smith has indicated his desire to attach a provision to the bill which would like to attach a provision relating to family immigration that would "re-order" the backlog of adult children and siblings of U.S. citizens so that those who have not graduated from high school will be sent to the bottom of the waiting list. Many feel that this is a "poison pill" designed to get people who otherwise would not support such a provision to vote for it in order to increase the H-1B cap or, a more likely alternative, it is a backhanded way to kill the H-1B increase.

When a final up or down decision on the H-1B issue comes, we will notify our e-mail subscribers immediately in an emergency alert.

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