H-1B Emergency Update
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Last fall, we published a new law emergency update on our web page that chronicled day to day developments with the implentation of the 1996 immigration law and the sunset of Section 245i of the Immigration and Nationality Act. The latest immigration law crisis involves the H-1B visa category for professional workers. This page is intended to keep our readers up to date with developments and inform them on how they can participate in the lawmaking process. If you would like to contact your Congressman and need to know how, go to the C-Span web site at http://congress.nw.dc.us/c-span/search.html.
October 21, 1998 - 4:24 pm Central US Time
President Clinton has signed the omnibus budget bill making the H-1B bill law. Those who worked hard on passing this bill can pat themselves on the back and know that What is next for this page? We will now report on how the bill is implemented. When will the new fees take effect? How will the INS enforce H-1B dependency rules? We will also be incorporating this page into a larger legislative and regulatory update page that will track other issues like we have tracked the H-1B bill for the last nine months. Look for that change to be incorporated before year's end.
October 21, 1998 - 9:18 am Central US Time
By a 65-29 margin, H.R. 4328, the omnibus budget bill has passed the Senate. The President should sign the bill today in order to avoid a government shutdown. We will provide a link to this bill as soon as it is available. The bill is over 4,000 pages so it may take a little time for us to sort through the immigration provisions and report to readers. The bill is not yet available to the public so readers waiting on the October issue of Siskind's Immigration Bulletin will see a delay in getting their newsletter while the bill is analyzed.
October 20, 1998 - 6:48 pm Central US Time
The Omnibus Budget Bill (H R. 4238) has just passed in the House of Representatives by a margin of 333 to 95. The Bill will be up for a vote in the Senate in the morning and the President is expected to quickly sign the bill since the stopgap spending measure keeping the government running will expire tomorrow night.
October 17, 1998 - 10:47 am Central US Time
The Congress adjourned for the weekend without voting on the budget bill. Instead, they passed a continuing resolution to keep the government operating until early next week. Congress is now expected to vote on the budget bill on Tuesday or Wednesday. The opposition to the H-1B provisions appear to have retreated so the H-1B cap should be raised by next week. We are told there were some "minor issues" to be worked out on the H-1B bill, but we have no details. If there are changes, we will, of course, let you know.
October 16, 1998 - 8:44 am Central US Time
Sources have informed us that Senator Harkin will not embarrass his party and delay a vote on the massive budget bill today over the H-1B visa legislation. That should mean that the H-1B cap will be lifted possibly as early as today. We will confirm when the vote has occurred.
October 15, 1998 - 3:40 pm Central US Time
The Clinton Administration has announced that it has completed the omnibus appropriations bill with Congress. No word yet on whether Senator Harkin will follow through with threats to use Senate delay procedures to force the H-1B language to be torpedoed from the bill.
October 15, 1998 - 12:45 am Central US Time
Congress and the White House are very close to completing the budget deal. While the H-1B bill is in the big appropriations bill and should pass under the momentum of the rest of the bill, Senator Harkin is making new threats to try and derail the H-1B provisions. Harkin is threatening "to have the whole bill read" on the Senate floor, a measure that could keep the Senate in session for several extra days.
October 13, 1998 - 4:40 pm Central US Time
The Associated Press and other news agencies are confirming that the H-1B bill is alive again and will be included in the budget bill as mentioned below.
October 13, 1998 - 4:05 pm Central US Time
The American Immigration Lawyers Association is reporting that the White House and the leaders in Congress have agreed to include the provisions of H.R. 3736, the H-1B bill in the provisions of the omnibus spending bill now being negotiated. The bill is apparently close to being finalized. Please remember, however, that anti-H-1B forces are actively trying to derail the bill and your last minute calls are vital. Please call your Congressmen as well as the White House and Congressional leaders listed in our last entry.
October 12, 1998 - 2:01 pm Central US Time
More good news on the potential revival of the H-1B bill. We have learned that Senate Majority Leader Trent Lott (R-MS) is in favor of including the H-1B legislation in the omnibus spending bill that will be voted on at the very end of the legislative session. Also, powerful Utah Republican Senator Orrin Hatch has reportedly made the H-1B bill a priority and is lobbying hard to ensure that it does not come to defeat. However, the Harkin obstruction has energized anti-immigrant forces who are lobbying hard against the bill. Your efforts today and tomorrow will make an enormous difference. The following members of Congress and the Clinton Administration are the most crucial people to contact to express your strong support for the H-1B program:
David Beyer
Domestic Policy Advisor, Office of the Vice President
202-456-6222
Ron Klain
Chief of Staff, Office of the Vice President
202-456-6805
Senator Trent Lott
Majority Leader
Contact: David Hoppe
202-224-3135
Senator Tom Daschle
Minority Leader
Contact: Pete Rouse
202-224-3232
Senator Tom Harkin
Contact: Dan Smith and/or Peter Reinecke
202-224-3254
Speaker Gingrich
Contact: Jack Howard
202-225-0600
Representative Armey
House Majority Leader
Contact: Peter Davidson
202-225-4000
Representative Gephart
House Minority Leader
Contact: Steve Elmendorf
202-225-0100
October 12, 1998 - 10:05 am Central US Time
Informed sources tell us that while the story about the Harkin block on the H-1B bill is true, the bill is NOT dead and it still has a chance of passing. We have also learned more about what happened Friday. Normally, a House bill must be formally voted on and sent to the Senate before the Senate can vote on the House bill. However, an exception is made where there is unanimous consent from the Senate's members. Unanimous consent was sought to bring the measure for a vote in a motion raised by Senator Dan Coats (R-IN). Harkin objected to the measure coming up for a vote and this single objection was enough to prevent the vote. A complete transcript of the debate on the measure is included here. Efforts are still being made to get the House to vote on the bill (the House is scheduled to adjourn this evening but is expected to extend the session by one or two days) and once this happens, unanimous consent to bring the measure up in the Senate would not be required. Senator Harkin could still try and filibuster (that is, force a vote to bring the bill up for a vote), but he would need 40 votes to keep this from happening and there is a strong likelihood that he would lose. The House does not have the measure scheduled for a vote today, but it could by tomorrow. It is absolutely crucial that you call your Congressmen and Senators TODAY and tell them to get this matter approved. If you would like to contact your Congressman and need to know how, go to the C-Span web site at http://congress.nw.dc.us/c-span/search.html.
October 10, 1998 - 10:40 pm Central US Time
One man appears to have single handedly killed the H-1B bill for this year. Senator Tom Harkin, a Democrat from Iowa, has threatened to use Senate procedures to delay a vote on the H-1B bill. The delays would also hold up all other legislation, something that Senate leaders will not allow to happen. Therefore, the bill will not be allowed to make it to the floor for a vote. Unfortunately, the chances of a bill passing before the Senate recesses early next week is now remote. Harkin is claiming that the shortage of technology workers is overstated. Perhaps the only hope now is to convince Senator Harkin to change his mind. Harkin can be reached by telephone through the Capitol Hill switchboard at (202) 224-3121 or by e-mail at tom_harkin@harkin.senate.gov . Readers of this page from Iowa are especially urged to call right away. Even if you get voicemail, be sure to let Senator Harkin know how upset you are that he has prevented the democratic process from being exercised.
October 10, 1998 - 2: 42 pm Central US Time
IS THE H-1B BILL DEAD? The Reuters News Agency is reporting that a small group of Senators was able to prevent the H-1B bill from coming to a vote yesterday and that the bill is effectively dead. The story states that a small number of Senators were able to keep the vote from occurring yesterday "killing chance of its passage this year." The story did not explain how this managed to happen nor did it explain why the bill cannot be brought up again or attached to another bill such as the continuing resolution to keep the budget operating or to one of the appropriations bills. At this point, no other major news agency is reporting this news and we are cautioning readers that we have not been able to verify the Reuters story. In fact, the reason may be because the story is wrong - there is still time for a vote. Contact your Senators' offices immediately and urge them not to let this bill die. You can find out how to contact your Senator by going to http://congress.nw.dc.us/c-span/search.html.
In related news, the Senate did vote to stay in session for three more days to continue
October 10, 1998 - 12:10 pm Central US Time
Still no completion on the H-1B legislation. Congress was scheduled to adjourn for the year yesterday, but now will remain in session, probably until mid-week. Of course, if budget bills are not passed, Congress may extend this date further rather than risking a government shutdown. Previously, we reported that the Senate would vote after the House finished with the bill. Now the opposite seems to be the strategy - the House will vote after the Senate. Senator Abraham, Chairman of the Immigration Subcommittee, tried to get the H-1B bill on the floor for a vote yesterday, but did not succeed.
The American Immigration Lawyers Association is reporting that the new $500 per worker fee required in the bill will not go into effect for several weeks. We will notify readers on specifics as they become available.
October 8, 1998 - 6:00 pm Central US Time
We thought by now we would have reported that the H-1B legislation was passed by both Houses of Congress and signed by the President. But as has been the case since this legislation was first proposed early this year, assumptions have frequently been proven incorrect. Is the H-1B in any danger? Our sources report that the bill is still a sure bet. But a few technical problems in the writing of the compromise now mean that the House must again vote on the bill. Most experts believe the billl will easily pass. But a scheduled vote in the House has been postponed twice this week (the latest was today when the vote was bumped for the Presidential impeachment vote). Speaker Gingrich promises a vote soon and the Senate vote is being held up until the House finishes with this bill. We will update readers as soon as a vote takes place.
September 24, 1998 - 5:08 pm Central US Time
VICTORY! After a ten month battle, the House of Representatives moments ago passed H.R. 3736 by a wide margin of 288-133. Shortly before this, the less desirable Watt Amendment, which would only lift the H-1B cap for two years, failed by a vote of 177 to 242. Click here to go to the Special Bulletin of Siskind's Immigration Bulletin for more information.
September 24, 1998 - 2:40 pm Central US Time
For the last hour, the House of Representatives has been debating the H-1B bill on the floor. An amendment was just passed incorporating the Administration/Senate compromise language into H.R. 3736. Debate on the amended bill is now underway.
The $500 worker fee will help provided 10,000 scholarships a year for low-income students in math, engineering adn computer science through the National Science Foundation and training for several thousand workers through the Job Partnership Act. The fees will rasie about $75 million a year and be split 65% for training and 30% for scholarships. 5% will be divided between administration and enforcement of H-1B rules. New H-1B workers can rightly claim that they are in fact will be providing the money to help Americans find good jobs.
The penalty provisions apply to all employers regardless of their level of H-1B usage.
Our latest report indicates that "industry standards" will remain the recruiting attestation standard.
In addition to offering the prevailing wage and matching benefits for American and foreign workers, companies must also offer equal access to employee bonuses as American workers.
The exemption for small companies is a little more complicated than reported earlier. Companies with fewer than 25 employees that have fewer than 7 H-1Bs are exempt. Companies with between 26 and 50 employees that have no more than 12 H-1B employees are also exempt.
Employers who have committed willful violations in the the prior five years will be subject to these new attestations.
Department of Labor will have the authority to investigate violations without a complaint being filed for companies with a history of prior violations. DOL can investigate suspected violations if it suspects willful and serious violations if it receives "specific and credible evidence" of such violations and receives the personal sign-off of the Secretary of Labor.
September 24, 1998 - 10:00 am Central US Time
The H-1B vote is still on schedule today in the House. There is some very good news to report in advance of the vote. Apparently late last night, Senator Abraham, Chair of the Senate's Immigration Subcommitte, reached an agreement with Gene Sperling, head of the White House's National Economic Council, that could prevent a threatened veto. Here are some details from the proposed compromise that we have learned (for a detailed summary of the bill as it stood before last night, go to the July 31st entry below):
The deal will lift the cap for 3 years. The program would increase to 115,000 visas for Fiscal Years 1999 and 2000 and drop the number to 107,500 in Fiscal Year 2001 (it then drops back to 65,000 unless Congress chooses to extend the lifting of the cap). The current bill increases the 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.
The H-1B dependency rules will remain largely the same - basically, the 15% threshold remains as does the small firm exemption (0-50 employees); also the exemption for workers with Master's degrees or higher or who earn $60,000 per year or more will remain.
The dependency rules will not go into effect for a year
Each application must be accompanied by an additional $500 "worker retraining" fee. This amount had not been previously set. The Administration had been seeking a fee as high as $1000 per worker so this is a compromise.
The attestation requirements will remain largely the same except that the recruitment attestation no longer uses the term "industry standards" to define what is adequate. We don't yet know what the compromise will require.
Multiple violators after the new law is enacted will be subject to the attestation requirements regardless of whether they are H-1B dependent or not.
LCA processing will remain with the Department of Labor, not the INS as the earlier bill would have required.
The White House withdrew demands for arbitration in all cases of layoffs of US workers
There will not be a "benching" provision in the bill
The health care worker cap will no longer be included
There will be a new attestation requirement stating that US employers must provide the same employee benefits to a foreign national as to a US worker
The debarment penalties on US employers will increase. For employers who wilfully violate the rules, they will be barred from filing H-1B petitions for two years. For firms paying less than the prevailing wage or who unlawfully lay off US workers, the debarment will be for three years and the fine will go up to $35,000
The Department of Labor's investigative authority in H-1B cases will increase
The Clinton Administration would like the arbitration process described in the current bill to be handled by the Department of Labor, not the INS.
The President is planning to attend a major fundraiser next week in California being sponsored by John Doerr, the head of a high tech investment firm. Clinton is said to want to have this issue behind him before that meeting and so is thought to have been more willing to compromise.
It is important to note that this compromise is between the Senate and the White House and the House of Representatives was not a party. Many in the House have been watching the Abraham-Sperling negotiations carefully and the compromise is thought to improve the chances of passage in the House. But it is still far from a sure bet that the House will pass the bill today and your last minute calls are still crucial.
September 18, 1998 - 2:00 pm Central US Time
We have received word that the vote on the H-1B bill will be next Thursday.
September 18, 1998 - 9:17 am Central US Time
We are receiving additional reports that another reason for the delay is that head counts in the House indicate that the H-1B bill does not yet have the votes to pass. We are receiving reports that the pro-H-1B forces are between 10 and 30 votes short of success. Obviously, your continued efforts at reaching Congress are vital at this point.
September 17, 1998 - 9:25 pm Central US Time
The vote on the H-1B bill has been postponed again, perhaps until next week. The reason - Senator Abraham, the champion of the H-1B cause in the upper House of Congress is still negotiating final details with the White House. This is good news as it means that the White House is actually negotiating. Hopefully that means that there is a real chance a veto will be avoided (though at what price?). You now have additional time to contact your Congressional representatives if you have not already done so.
September 16, 1998 - 8:05 am Central US Time
A vote on the H-1B bill is scheduled for tomorrow, September 17th, in the House of Representatives. Be sure to give a last minute call to your Representative to make your feelings known!
September 10, 1998 - 5:35 pm Central US Time
The American Immigration Lawyers Association has sent out an alert to its members letting them know that September 15th is National H-1B Call-In Day (obviously an indication that the H-1B vote is not expected to take place before that date though it is still expected that week). AILA is urging immigration lawyers as well as members of the public to call their Congressional Representatives in the House to urge them to support H.R. 3736 (the compromise H-1B bill that AILA as well as the editors of this web page support), to oppose the Watt Substitute bill (which is much more restrictive and anti-business/anti-immigrant than H.R. 3736) and oppose a motion to recommit (which would kill the bill by sending it back to committee). You can call the Congressional switchboard at 202-224-3121. To find out who your Congressman is, go to http://congress.nw.dc.us/c-span/search.html. You can also e-mail or fax your Congressman and can get the appropriate contact information by following the link above. A strong vote is needed in the House of Representatives to send a signal of broad support to the Senate and to the White House which, as readers may know, is threatening to veto this bill. The White House is believed to be under strong pressure to veto the bill in order to not alienate the labor unions and pro-labor Democrats. This is especially a concern with impeachment proceedings looming.
When you call or write, you might wish to stress the following points:
September 1, 1998 - 1:49 pm Central US Time
There has not been much to report since early August on the H-1B legislation since Congress has been out of session. We have learned that the H-1B vote in the Senate is now scheduled for the week of September 14th. According to Congressman Lamar Smith's office (Smith is the chairman of the House Immigration Subcommittee), no vote has yet been scheduled in the House.
The INS recently released the following memorandum outlining H-1B procedures under the cap period:
Memorandum for: Regional Directors Service Center Directors From: Michael A. Pearson Executive Associate Commissioner Field Operations Subject: Change of Status for D/S Beneficiaries of Timely Filed Petitions Subject to the FY98 H-1B Cap Purpose: Clarify issues raised by the public since the May 12, 1998, Federal Register notice.
Background
The Federal Register notified the public that the 65,000 limitation on the H-1B nonimmigrant classification (cap) had been reached for fiscal year 1998 (FY98). The notice advised that H-1B petitions filed on or after that date, for new employment commencing prior to October 1, 1998, would be rejected. With regard to H-1B petitions pending adjudication on May 12, 1998, the notice advised that the Service would notify the petitioner or attorney of record that the cap had been reached and present the option to withdraw the petition or delay the date of the beneficiary’s intended employment until new H-1B numbers become available on October 1, 1998, the beginning of fiscal year 1999 (FY99)
Issues and Discussion
Discussion: Section 248 of the Immigration and Nationality Act generally authorizes the Attorney General to grant a change of nonimmigrant status in the case of an alien who was lawfully admitted to the United States as a nonimmigrant, has maintained that status since admission, and meets the requirements of the new status. Accordingly, the beneficiary of an I-129 petition to grant H-1B status and change nonimmigrant status to H- 1B must be in valid nonimmigrant status both when the petition is filed and on the date on which the requested status change becomes effective, i.e. on or after the date on which new H-1B numbers become available for FY98 (e.g. if Congress raises the FY98 cap or INS revokes approved H-1B petitions based on FY98 numbers) or FY99 numbers become available on October 1, 1998.
Conversely, a change of status is not approvable unless the classification to which the alien seeks to change is available to the alien at the same time. For example, even if the beneficiary of an H-1B petition subject to the FY98 cap is in status as of the date on which INS adjudicates the Form I-129, change of status will be denied if that alien’s authorized period of admission will expire prior to the date on or after October 1, 1998, on which the petitioner has requested commencement of H-1B employment and on which FY99 H-1B numbers are available. In other words, a nonimmigrant seeking to remain in the United States and change status to H- 1B must meet two criteria: maintenance of valid status and availability of an H-1B visa as of the employment start date. When either or both of these criteria is not met, change of status cannot be approved.
An exception to this general rule arises where the beneficiary falls out of status while the timely filed petition is awaiting adjudication. With respect to the current H-1B cap situation, for example, the provision at 8 CFR 248.1(b)(1) will maintain the status of an beneficiary whose H-1B status and change of status are not adjudicated by the Service until on or after the date on which FY99 H-1B numbers become available.
On the other hand, Section 248 will NOT reinstate lawful status in a case where there is a gap between expiration of the H-1B beneficiary’s status and any date prior to October 1, 1998, on which the I-129 may be adjudicated for an employment start date using FY99 H-1B numbers. Where an adjudicator is aware that the beneficiary’s status has expired, or will have expired by the H-1B effective date, change of status will be denied even if the petition is approved on its merits.
As noted in the May 12, 1998, notice, H-1B petitions requesting October 1, 1998, start dates will be adjudicated in turn at the Service Centers. The Service will not hold I-129 petitions in abeyance to serve the purpose of beneficiaries whose status has expired and wish to remain in the United States and regain status, nunc pro tunc, under Section 248.1(b)(1). This provision will apply only in those cases where Service Center backlogs will not accommodate adjudication prior to October 1, 1998.
Discussion: The status of F-1 foreign students and J-1 exchange visitors admitted for duration of their approved programs (D/S) includes the respective 60- and 30-day grace periods following optional practical training, provided that those aliens have completed their approved programs and otherwise abided by the requirements and limitations of their nonimmigrant classifications. Forms I-129 naming beneficiaries in D/S classification will be accepted throughout their lawful durations of status. Likewise, changes of status will be approved for D/S nonimmigrants throughout their durations of status as long as the duration of status includes the effective dates of the new H-1B employment (see item #1 above).
Discussion: The triggering events for purposes of both of these statutory provisions are the same: overstay of admission period and/or violation of status. With respect to overstays, however, the triggering events differ for nonimmigrants admitted for a time certain and those admitted for D/S. For nonimmigrant aliens admitted for a time certain period, overstay begins to accrue on the status expiration date stamped on the Form I-94. For D/S aliens, overstay begins to accrue upon the finding of an immigration judge or an adjudication by INS revealing a status lapse.
Under a common H-1B cap scenario, for example, an F-1 beneficiary of a timely filed H-1B petition has remained in the United States after completion of the 60-day period following his or her approved optional practical training, with the result that he or she will not be in lawful status as of the October 1, 1998, effective date for FY99 H-1B employment. Since an alien must be in lawful status on the effective date of a change of status, and since a change of status for beneficiaries of H-1B petitions subject to the FY98 cap cannot be approved until FY99 H-1B numbers become available on October 1, 1998, INS will deny the change of status from F-1 to H-1B if the adjudication occurs during the gap between the end of the grace period and October 1, 1998.
Under this general scenario, unlawful presence for purposes of Sections 222(g) and 212(a)(9)(B) occurs on one of two dates. Where denial of change of status is based upon the alien’s presence in the United States beyond the period of authorized stay as of a date of adjudication prior to October 1, 1998, the event triggering unlawful presence has occurred as of the adjudication date. Alternatively, where denial of change of status is based upon the fact that the alien’s duration of approved status will expire between the date of the adjudication and October 1, 1998, (when FY99 numbers will become available), the event triggering unlawful presence is the prospective expiration of status prior to October 1, 1998.
Under either of these scenarios, unlawful presence is triggered and Sections 222(g) and 212(a)(9)(B) now apply to the D/S nonimmigrant. The consular visa under which he or she, who has been denied change of status to H-1B as beneficiary of an approved H-1B petition, was admitted to the United States is voided automatically by force of law, meaning that he or she must return to the country or nationality to obtain the H-1B visa unless an individual exemption applies. Likewise, to the extent not covered by the 120-day tolling period, the clock will start ticking for purposes of the 3-year bar under Section 212(a)(9)(B)(iv).
Discussion: The petitions of aliens who seek changes of nonimmigrant status to B-2 or other classifications to await the availability of H-1B numbers will be processed on a case-by-case basis pursuant to existing statute, regulation, and policy. Section 248 of the Immigration and Nationality Act generally authorizes the Attorney General to grant a change of nonimmigrant status in the case of an alien who was lawfully admitted to the United States as a nonimmigrant, has maintained that status since admission, and meets the requirements of the new status. The fact that the alien will remain in the United States for the express purpose of awaiting the opportunity to change status to H-1B and accept employment will not, in and of itself, undermine eligibility for visitor status.
Discussion: Unless the legislation provides otherwise, if Congress increases FY98 H-1B numbers, petitioners who missed the original cap and requested employment start dates of October 1, 1998, must file amended petitions, including fees, in order to take advantage of earlier employment start dates.
August 6, 1998 - 10:40 pm Central US Time
The House leadership decided to pull the H-1B bill from consideration until after the August recess. Two many other bills, particularly those relating to the budget, were given priority. From a practical point of view, the lack of a vote does not affect the timing of passage of a bill that much because the Senate is already in recess. Nevertheless, the future of the bill is still very much up in the air and the several week recess may give pro-H-1B forces the time needed to convince doubting members of Congress of the importance of accepting the current compromise bill.
August 6, 1998 - 12:35 am Central US Time
No vote today, though expectations are that a bill will come up for a vote before week's end. AILA released the following memo describing an effort by H-1B opponents to introduce an amendment during the House debate that would essentially kill the bill:
The Watt Substitute for H.R. 3736
A Step Backward
Members of Congress have a choice: H.R. 3736 would generate jobs for Americans, strengthen the U.S. economy, provide education, training and job protection for U.S. workers, and help ensure that this country remains the high- tech "Mecca" and retains its global competitive edge. In contrast, the Watt Substitute would defeat these goals.
If you would like to see the H-1B compromise bill, we've got it in our Documents Collection.
August 4, 1998 - 10:05 pm Central US Time
The House has rescheduled its floor vote on the H-1B bill until tomorrow or Thursday. House Republican leaders met yesterday and agreed to push for a vote, but noted that the bill is in serious danger of going down to defeat if supporters of the H-1B program do not get out and contact their congressmen and the President. Also, the House Report on the H-1B bill is on our web site at http://www.visalaw.com/docs/congressionalreport.html.
The American Immigration Lawyers Association is asking members of the public to contact their Congressional representative in Washington by calling 202-224-3121 and pass on the following messages:
H.R. 3736 is a workable compromise that will allow business to have access to skilled foreign workers that will fuel growth, create jobs and help America stay competitive.
Oppose any substitute amendment that would derail this carefully crafted compromise.
Vote against a "motion to recommit", which, by sending the bill back to the Judiciary Committee, would kill chances for a workable solution to the current crisis faced by American business.
H-1B supporters are also urged to contact the following White House staffers to urge the President to sign the compromise bill: Gene Sperling, Director, National Economic Council (Ph: 202-456-2620 and Fax: 202-456-2878) or call the Correspondent's Office, Office of the Vice President (Ph: 202-224-2424 and Fax: 202-228-2424).
August 1, 1998 - 9:45 am Central US Time
The House is now scheduled to vote on the H-1B compromise bill on Tuesday, August 4th. As we reported yesterday, the current H-1B deal is far from done and can become far worse. This bill is crucial to American business and its defeat will cause substantial harm to the economy. The keys are to contact the White House and your House of Representatives member iin the next two days to let them know that the H-1B is crucial and that enough compromises have already been made. The key advisors in the White House are
Mr. Gene Sperling, Director
National Economic Council
202-456-2620
Fax: 202-456-2878
Correspondent's Office
Office of the Vice President
Ph: 202-224-2424
Fax: 202-228-2424
To contact your Congressmen to request his or her support and need to know how, go to the C-Span web site at http://congress.nw.dc.us/c-span/search.html.
July 31, 1998 - 11:11 pm Central US Time
The H-1B roller coaster ride continues. In May, it appeared likely a cap would come any day. Then the bill appeared to be all but dead. Next Lamar Smith announced that a deal had been reached. But today the prospects for an H-1B bill appear to have taken a turn for the worse.
We now have a better idea why the House vote did not happen today. And the news is not good for those favoring passage of the H-1B compromise bill. The most important development to arise today is that the Clinton Administration made it clear that the President will veto the H-1B bill if it is sent to him in its current form.
By yesterday, the House and Senate had agreed on the bill described earlier today. Votes in both Houses were hoped for today and then the bill would be sent to the President for his signature. But it has now become clear that the President will veto the current version of the bill and the Administration will need to see changes before it will go along.
Jake Siewert noted the President's concerns - "Unfortunately, this Republican agreement fails to provide adequate training and protections for U.S. workers. 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." Of course, it is now too late to beat the recess and one could reasonably question how sincere the President is about wanting to hammer out a bill based on his actions over the last 24 hours. According to House Majority Leader Dick Armey, Clinton's threatened veto is "ill-advised" and is the result of "Big Labor politcs."
The Administration's efforts to thwart the H-1B bill were accompanied by similar actions by the left and the right. Massachusetts Democratic Senator Edward Kennedy is apparently threatening to filibuster (block debate) on the bill when it reaches the Senate floor. Kennedy has been a long-term critic of the H-1B program. And Senate Majority Leader Daschle prevented the vote from the Senate from even coming to the chamber's floor.
In the House, Representative Elton Gallegly, a conservative California Republican has begun a campaign among House Republicans to bolt from the party line and vote against the H-1B bill. Even if the President had not threatened a veto, House Republican leaders were concerned enough about the votes to hold off on putting the question to the House floor.
But at least one key
player in the H-1B debate remains confident an H-1B bill will
pass. `Immigration Subcommittee Chairman Senator Spencer
Abraham's spokesman Joe McMonigle stated earlier today that
"While they have delayed passage, they haven't prevented
passage and they won't be able to,'' said
Joe McMonigle, a spokesman for Sen. Spence Abraham, R-Mich.
July 31, 1998 - 2:21 pm Central US Time
The House of Representatives concluded its legislative business today without consideration of the H-1B Bill. As noted earlier today, the bill will be on hold until September when both Houses of Congress reconvene from the August recess.
July 31, 1998 - 11:20 pm Central US Time
The American Immigration Lawyers Association Board of Governors meeting today at the American Bar Association annual meeting in Toronto, this afternoon voted to support the H-1B bill, but noted that it has serious reservations with the bill and reserves the right to withdraw its ensorsement if there are further erosions in the bill.
AILA also released the following very detailed summary of the H-1B deal. AILA representative Judy Golub reported to the association's Board of Governors that the deal was still being negotiated as of yesterday and that the summary below reflects the latest version of the agreement. She also reported that while the goal is still to get a deal final before the Senate recesses tomorrow, this is a pretty unlikely result. Therefore, the bill will probably not be passed until the Congress is back in session in September. And there is still the possibility that immigration restrictionist forces will be able to change provisions in the bill. One late piece of news - the proposal to allow Indians and Chinese subject to the employment-based per country limits to be able to extend H-1B visas until their priority dates become current has not been included in the final version of the compromise.
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 FY99 for applications filed this fiscal year but not yet adjudicated.
Section 102:
(a) Attestations on H-1B dependent employers
(b) H-1B dependent employer and other definitions
(c) Electronic Poasting. Where there is no bargaining representative, the LCA 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:
(b) Arbitration for Disputes Involving the Qualification of U.S. Workers
(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 sections imposes a fee of [not final: $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.
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 Attorney General 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 set forth the 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 must include the countries of origin, occupations education levels, and compensation of H-1Bs in the last year. Also requires a sub-count of number of petitions filed by higher education 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 technomogy 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 or governmental research organization. Foreign national 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.
July 30, 1998 - 4:24 pm Central US Time
The House is scheduled to vote on the H-1B compromise bill tomorrow. The House will convene at 1 pm Eastern Time. The bill's number is H.R.3736. We will report back tomorrow with news on the results.
July 29, 1998 - 4:45 pm Central US Time
American Business for Legal Immigration, a lobbying organization that pushed hard for an H-1B bill, has issued a memorandum providing more information on the H-1B compromise as well as some information that appears to contradict what the American Immigration Lawyers Association is reporting.
According to ABLI, in addition to companies that are "H-1B Dependent" (see the explanation from yesterday), companies that have been found to have violated other provisions of the H-1B program will also have to meet the new attestation and recruitment rules.
ABLI and AILA appear to differ on the attestation/recruitment exemption for small employers. According to ABLI, firms with fewer than 50 employees are not subject to the attestation/recruitment rules AT ALL. AILA is reporting that these companies are subject if they have more than 50% of their workers on H-1B visas.
With respect to the layoff attestation, it will only cover situations where the laid off worker and the H-1B worker are performing essentially the same job.
Another point where AILA and ABLI appear to contradict eachother involves recruiting and employee contracting firms. According to ABLI, these firms do not have to attest that there client companies have not laid off workers, but they are required to obtain specific information from their clients. ABLI does not mention any liability to the job contracting firm if it turns out that the client company was not being truthful. AILA has indicated that the H-1B petitioner would be liable for such misstatements.
ABLI reports that the arbitration process will involve a three person panel comprised of one person named by the petitioner, one by the complainant and a third agreed by both.
ABLI expects the House to vote this week or next. It is urging the public to contact their Congressmen (especially Democrats) and ask them to support this compromise legislation.
AILA is also reporting new details today -
AILA is reporting that a potential deal is in the works on the per country employment green card limits that have hit the Indian and Chinese communities so hard. While the per country limits may not be eliminated, a proposal to allow H-1B visas to be extended until adjustment of status is available IF THE EMPLOYMENT-BASED PETITION WAS FILED PRIOR TO THE DATE OF ENACTMENT OF THE H-1B BILL. This will obviously benefit many.
AILA also reports that the White House is unhappy with exemptions from the attestation rules for employees with masters degrees or higher or who are earning $60,000 or more. The White House also wants to include a per worker surcharge for H-1B visas in order to fund education and retraining iniatives. A fee as high as $1000 per worker is being considered.
Both AILA and ABLI are asking members of the public to contact the White House and urge them to support the deal and to support a more modest per worker fee or no fee at all. The following people are the appropriate contacts there:
Mr. Gene Sperling, Director National Economic Council 202-456-2620 Fax: 202-456-2878 Correspondent's Office Office of the Vice President Ph: 202-224-2424 Fax: 202-228-2424
July 28, 1998 - 8:30 pm Central US Time
The American Immigration Lawyers Association is providing its members with more details on the H-1B deal. According to AILA, the deal will have the following elements:
1. The numbers are what we described earlier - 20,000 new visas for this fiscal year, 30,000 next year, 40,000 the year after that and 50,000 additional visas for the next two years. One new detail is that any unused visas from this year's additional 20,000 will spill over to next year. But with the backlog in applications at INS being so large, this point may be merely academic. Another detail not previously reported is that 7,500 of the H-1B visas will be reserved for health care workers. Which health care workers are covered has yet to be determined.
2. As reported earlier, "Dependent" H-1B employers will have to comply with new attestation and recruitment requirements. The definition of a dependent H-1B employer is one that has a work force with greater than 15% of its workers being in H-1B status. But there are some important exceptions:
a. H-1B employees with master's degrees or who make $60,000 per year or more are not counted in the 15%.
b. There will be a more liberal rule for small employers. Those with 50 or fewer employees will not be subject to the attestation and recruitment requirements unless 50% or more of the work force is comprised of H-1B employees.
3. The provisions in the Smith Bill that would have limited to four years H-1B visas for workers over the 65,000 cap have been eliminated.
4. More information on the recruiting requirement is now available. The Department of Labor would not be the enforcer of the new recruiting requirements (which appears to be a response to earlier reported Republican leadership objections to giving more power to that agency). Enforcement will be based on the filing of complaints against employers to arbitration panels. The panels will be able to request evidence in a case, but the details on this provision remain to be written as are the details on how a complaint is to be submitted. AILA reports that the DOL will still be responsible for setting recruiting standards.
5. The new layoff attestations have the following elements:
a. the attestation will be limited to layoffs in the same statistical metropolitan area (as opposed to just the same worksite)
b. there must not have been layoffs in the 90 days prior to the attestation and the employer must attest that it will not layoff workers within 90 days of filing the H-1B petition
c. for job contractors, the H-1B petitioner must attest that they have checked with their clients and that they have no reason to believe layoffs have taken place at the client firms. If it is determined that a client company has laid off workers, the H-1B petitioner will be held liable.
The rest of the differences between the Smith and Abraham bills have not been worked out yet.
While this deal is far from perfect, AILA as well as the editors of this page are urging the public to support this deal. If you would like to contact your Congressmen to request his or her support and need to know how, go to the C-Span web site at http://congress.nw.dc.us/c-span/search.html.
July 27, 1998 - 5:05 pm Central US Time
Leaders in both Houses of Congress have promised to finish up most of the work on an H-1B bill by the end of this week. The hope is to have the bill ready to go to the President for a signature before the House breaks for recess in two weeks. The Senate breaks for recess at the end of this week, so unless the bill is put on an extremely fast track, it will be delayed until the Senate's recess ends on August 30th.
According to our sources, the ambitious goal this week is to produce the amendments and have a full vote on HR 3736 in the House of Representatives, then have a Conference Committee meeting between representives of both the Senate and the House in order to hammer out a compromise bill and then have a vote of the full Senate on the revised bill. Presumably, the revised bill would be voted on by the full House again next week and then be sent off to President Clinton for his signature.
The major problem with this schedule is the unfortunate shooting which took place Friday in the US Capitol Building. Both Houses of Congress were in recess today in order for memorial services to take place. Some backers of the bill are concerned that the fast-track schedule could be in jeopardy.
There seems to some discrepancy as well between what Senator Abraham's office is reporting on the compromise and what Congressman Smith is reporting. Smith's office has stated that the deal includes an agreement that H-1B dependent job contracting firms would also have to attest that their clients have not had layoffs. Abraham's description of the deal would appear to only require firms to attest as far as their own layoff history.
In other news, Allen Kay, a spokesman for Congressman Smith, indicated the deal did have a worker retraining component and will meet with the approval of the Clinton Administration.
July 26, 1998 - 3:10 pm Central US Time
While exact details are still unavailable on the H-1B deal, bits and pieces are starting to become known. As pushed for by Congressman Smith, new attestation and recruiting requirements will be in place for some US firms. Firms with more than 15% of their workforce comprised of H-1B workers will be covered. Six of the top 25 H-1B petitioning firms in the country would fit this category. Recruiting firms that contract out employees are the companies most likely to be impacted. Large companies like Microsoft and Intel are less likely to be impacted since even though they have many H-1B workers, those workers comprise less than 15% of the work force.
We believe the proposed bill will fine any company found to have laid off Americans before hiring foreigners and will create arbitration panels to handle disputes over the attestation requirement. It will also penalizing recruiting firms that place workers at firms that have recently laid off Americans. The amount of the penalties has not been decided yet.
Another question that remains open is whether the compromise will be acceptable to President Clinton. The President has threatened to veto an H-1B bill that does not contain satisfactory attestation and recruiting language as well as a retraining component. How the compromise bill will address the retraining issue is not yet known. An additional filing fee to be designated for retraining US workers has been one idea circulating in Congress, but it is far from a settled question. Barry Toiv, a spokesman for the President, said Friday that the compromise "made some progress" but that the President wanted to know the details before committing to sign the bill.
Leaders in both houses expect a bill to be sent to the President before the August recess which is scheduled to begin August 10th. A draft of the bill may be available as early as this coming week.
July 24, 1998 - 11:27 pm Central US Time
Rumors abound on what's in the new H-1B deal. We are pretty certain that the bill will increase the cap by 20,000 for this fiscal year. Next year the cap increases from 65,000 to 95,000. It goes to 105,000 in 2000 and to 115,000 in years 2001 and 2002. The increase in the cap would have to be renewed by Congress at that point.
We also know that there are some recruiting and attestation requirements in the deal. But what they are has yet to be revealed. More news soon...
July 24, 1998 - 3:55 pm Central US Time
A DEAL HAS BEEN REACHED.
The following is a press release issued by House Immigration Subcommittee Congressman Lamar Smith's office within the last few minutes:
Smith Announces H1-B
Agreement
FOR IMMEDIATE RELEASE July 24, 1998
WASHINGTON, D.C. -- Congressman Lamar Smith, announced Friday
that an initial agreement on
temporary foreign worker legislation containing meaningful
safeguards for American workers was
reached late Thursday.
"This agreement is good for business, good for workers, good
for America", Smith said. "It targets likely abusers of
the system with stiff penalties".
The compromise House-Senate bill was agreed to by House and
Senate immigration policy-makers and by the House and Senate
leadership.
The legislation will require companies who are heavy users of
foreign temporary workers to attest thatthey have recruited
American workers and that they have not laid off an American
worker to hire a foreign worker.
"These same companies also will have to attest that they do
not provide temporary workers to othercompanies who then use them
to replace laid off workers," Smith, Chairman of the House
Immigration Subcommittee, said. "If found to have done so,
the companies could be fined and face debarment fromusing the
H-1B program for one year."
In the most recent listing of the top 25 users of H-1B visas, at
least six are publicly identified as heavyusers of foreign
workers, with at least 15 percent of their employees being
temporary foreign workers.
CONTACT: Allen Kay
202-225-4236 (O)
301-990-3749 (H)
We will provide more details very soon.
July 22, 1998 - 3:55 pm Central US Time
Amidst reports that negotiations on the H-1B cap have collapsed, the San Francisco Chronicle has reported that two Silicon Valley Congressmen - Democrat Zoe Lofgren and Republican Tom Campbell are involved in a last ditch effort to broker a compromise. But with only 22 work days left in this session of Congress, many are skeptical that anything will happen this year. The Chronicle reports that Campbell is trying to arrange for lobbyists for computer industry giants Hewlett-Packard, Sun Microsystems and Intel to negotiate directly with House Immigration Subcommittee Chairman Lamar Smith, the main opponent of a straight raise in the H-1B cap.
Lofgren, on the other hand, is focusing her efforts on trying to reverse the Clinton Administration's veto plans. The chances for this happening, however, are considered quite remote.
The San Francisco Chronicle managed to obtain a copy of an e-mail from Intel lobbyists indicating that as of July 7th, Smith's House bill had 240 to 270 votes, well in excess of the 218 needed to pass.
The Chronicle report also indicates that Representative Dick Armey will this week push Senator Abraham and Congressman Smith to accept a compromise bill which would keep the existing rules for the first 65,000 visas issued each year and impose the Smith Bill's requirements on new visas issued over the current limit.
In other news, THE SCIENTIST magazine published an article this week outlining the difficulties the university research communities are facing as a result of the freeze on H-1B visa issuance.
July 18, 1998 - 1:24 pm Central US Time
Grim news on the H-1B front. After it appeared that Lamar Smith was willing to compromise on an H-1B bill, the Texas Republican and Chairman of the House Immigration Subcommittee sent clear signals this week that he is not willing to budge on the H-1B issue. On Thursday, Lamar Smith held a press conference where he was quoted as saying ``The most simple, most basic protection we can give American workers is to guarantee they won't be fired by their employers and replaced by foreign workers.'' Smith was surrounded at the press conference by three men who claim their employment in the computer industry has been harmed by foreign workers. Smith reiterated his commitment to requiring companies to certify that they have not laid off American workers before hiring foreign nationals in the same field and to requiring firms to attest that they first tried to hire American workers.
The news from Smith was paired with bad news from the Clinton Administration. Clinton spokesman Mike McCurry released a statement indicating the President will veto an H-1B bill if it does not include the retraining and attestation provisions favored by Smith. The Clinton statement is as follows:
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.
Discussions among Congressional leaders are expected to continue this coming week. For those readers who are taking for granted that the cap will be lifted by legislation, this news should be a wake up call. Estimates show that after FY1999 numbers are released in October and new H-1Bs start to be issued, the cap could again be reached as early as December of this year and new H-1Bs would not be available again until October 1999. And now there are only 35 working days left in this session of Congress. So if you are going to act, this is really the last chance to do so.
If you would like to contact your Congressmen, consider urging them to support a raising of the cap WITHOUT new anti-business attestation requirements. If you would like to contact your Congressman and need to know how, go to the C-Span web site at http://congress.nw.dc.us/c-span/search.html.
July 14, 1998 - 11:09 pm Central US Time
There is still no important news to report on the legislative front. Regretably, the longer the negotiations take, the more likely it is that there will be no lifting of the cap since there is not a lot of time left in this session of Congress and the attention of both bodies of Congress will turn to the appropriations process. As we continue to remind readers, it is vital to contact your Congressional representatives now to urge them to support a lifting of the cap on H-1B visas AND to vote against any legislation which would impose drastic new attestation and recruiting requirements on H-1B employers. American business, especially small businesses, will suffer dearly without Congressional action.
July 11, 1998 - 7:19 am Central US Time
Readers have been wondering why its been so long since the last update. There really has been nothing to report. The House of Representatives has been out of session since late June and no news has emerged on the interpretation of the cap or further negotiations by Congressional leaders. I still urge readers to contact your Congressional representatives to let them know that you are in favor of raising the cap without burdensome new restrictions. This may be the last opportunity since the House comes back into session on Monday. Please read earlier entries on this page for more information on this.
July 1, 1998 - 9:13 am Central US Time
News is emerging from the series of meetings which took place last week amongst Congressional leaders to work out a compromise on the H-1B issue. It appears that House Republican leaders are rejecting the idea of including attestation requirements as a key part of any compromise legislation especially since the Smith Bill would appear to strengthen organized labor's efforts to make inroads into the technology sector. An interesting proposal was put to Congressman Lamar Smith that might be a way out of the crisis. The proposal would work as follows:
The existing H-1B program would remain intact with 65,000 visas;
A new visa would be available with a cap of 60,000 for people with masters degrees (or higher) or who earn $60,000 per year;
Another new visa would be created which would include the attestation requirements currently in the House bill (the number of visas in this category has not yet been stated).
Congressman Smith has not accepted the proposal yet, but he did indicate that he would consider it and confer with his constituencies.
Readers are reminded that Congress is currently in recess and it is a most opportune time to contact your Congressmen to urge them to support a raising of the cap WITHOUT new anti-business attestation requirements. If your Congressman is a conservative, you might remind him or her that the Smith Bill in its current form will only serve to increase the power of the US Department of Labor and the AFL-CIO. If you would like to contact your Congressman and need to know how, go to the C-Span web site at http://congress.nw.dc.us/c-span/search.html.
June 26, 1998 - 12:08 am Central US Time
More interpretations on the H-1B cap today. According to the INS, persons who applied for a change of status to an H-1B visa prior to the date the cap was reached (May 9) will continue to have their applications held in abeyance. The INS will begin processing H-1B petitions requesting an October 1 start date soon. The prioritization given to these cases by each Service Center will depend on available resources, according to a report issued by the American Immigration Lawyers Association today. In related news, AILA reports that the INS will approve change of status applications by F-1 students whose grace periods will remain effective after October 1st and who request start dates on their H-1B visas of October 1st or later.
June 24, 1998 - 12:08 am Central US Time
The Congressional leadership meeting referred to in our last two entries occurred this morning and continued into the afternoon, but there is still no agreement on how the H-1B bills will proceed. The good news is that Lamar Smith was put on notice that the House Republican leadership had no intention of proceeding with a bill that would concentrate new and considerable power in the hands of the AFL-CIO and other unions as well as the Department of Labor. The meetings are expected to go on for several days to see if a compromise to raise the cap on H-1B visas can be reached.
The good news is that our message seems to be getting through - American needs more H-1B workers, not new burdensome recruiting requirements that will effectively kill the H-1B program altogether. The word is that Representative Armey and Senators Phil Graham and Spencer Abraham are with the pro-H-1B side. And Congressman Hyde and Smith are feeling the pressure from the business community to raise the cap without the excessive new requirements. Congressman Hyde is starting to sway on the issue and your continued communication with him as well as the others noted below will be very important.
June 23, 1998 - 12:02 am Central US Time
While there is no news to report over the last two days on legislative issues, we wanted to once again urge readers to fax the numbers below regarding the lifting of the H-1B visa cap.
I did learn at the American Immigration Lawyers Association meeting last week in Texas that about 9,000 H-1B petitions are being submitted each month and the number of visas waiting for approval on October 1st is expected to range from 30,000 to 45,000. That means the H-1B cap could be hit as early as December of this year for all of fiscal year 1999 - a disasterour scenario.
June 20, 1998 - 11:00 am Central US Time
Judy Golub, advocacy director for the American Immigration Lawyers Association, addressed the membership of the organization yesterday regarding the current H-1B battle at the organization's annual meeting in Houston, Texas. Golub noted that no date has yet been scheduled for floor consideration of the House bill to raise the cap. However, this is considered to be a good thing for pro-H-1B forces since a floor vote now would probably be for a very restrictive version of the bill which could render the H-1B program useless for employers.
AILA noted today that Republican leaders in the Congress will be meeting this coming Monday or Tuesday possibly to make a determination on the H-1B visa bill. IT IS ABSOLUTELY CRUCIAL THAT READERS CONTACT BY FAX EACH OF THE FOLLOWING INDIVIDUALS TO LET THEM KNOW THE FOLLOWING MESSAGE:
Don's stifle American business, especially small business. Support a pro-business, pro-competition, pro-job growth H-1B bill.
Oppose H.R. 3736 in its present form.
The fax numbers are as follows:
Rep. Newt Gingrich - 202-225-4656
Rep. Richard Armey - 202-226-8101
Rep Tom Delay - 202-225-5241
Rep. Henry Hyde - 202-225-1166
June 19, 1998 - 10:29 am Central US Time
The annual meeting of the American Immigration Lawyers Association is taking place this week in Houston, Texas and a number of high level government officials are here to deliver information on the latest developments in immigration. Of course, the H-1B cap is one of the hot topics at the conference and there is some news to report on how the cap is being interpreted by the INS. According to Jackie Bednarz, Acting Assistant Commissioner of the INS, the INS is indeed considering sequential employment - that is, changing from one H-1B employer to another - as outside of the cap. HOWEVER, the INS is using a 30 day rule to determine if the employment is really sequential. That is, if there is a break of more than 30 days between when employment ends with one employer and a new application is put in for H-1B status, then the petition will be considered subject to the cap. Also, the INS indicated that for those who filed for a change of status before May 11th when numbers were still available, they MAY consider these people in status through the release of new numbers on October 1st. But this issue has not firmly been decided by INS and we will report when a decision is rendered. But for people applying after the cap was reached, if there status ends prior to October 1st, they will definitely have to process at a consulate. And if a person wants to be able to process at a consulate in a third country, such as Canada or Mexico instead of their home country, then they must leave the US while they are currently in status. However, students and others with duration of status I-94s would not be subject to the third country consular bar even if there status is not longer valid. The INS noted that they are very open to working with AILA in coming up with a more workable interpretation of the cap.
Bednarz also informed the attendees that there were 10,000 H-1B applications in the pipeline when the cap was hit last month. They are going to first work on extension and concurrent employment applications before getting to the cases subject to the cap or those seeking post-October 1 start dates. The INS hopes that perhaps Congress will settle the question of whether more visas will be made available while the agency is clearing out the first backlog that is not subject to the cap. The INS also indicated that it will not look unfavorably on applications to change to visitor visa status for people who would otherwise fall out of status if the visitor visa application is, in fact, bona fide. Basically, the person would submit the B-2 change of status application and indicate that the H-1B change of status application is no longer wanted. The person would presumably need to reapply for H-1B status later, but at least there visa status would remain legal.
June 16, 1998 - 10:29 am Central US Time
Still no news to report on the lifting of the cap. However, we have learned that the 800 telephone number for the Congressional switchboard is not working and you will need to dial 202-224-3121 to reach your representative in order to express your concerns about lifting the cap. Remember, your actions are critical in not only lifting the H-1B cap, but preserving the H-1B as a viable visa program.
June 8, 1998 - 12:07 pm Central US Time
The American Immigration Lawyers Association is reporting to its members that the House floor vote on the H-1B bill has not yet been scheduled and that it appears to be stalled over the layoff and recruitment attestation provisions that are not a part of the Senate version of the bill. This extra time should be seen as an opportunity to contact Congressmen you have considered calling, faxing, or e-mailing but have not. AILA is asking the public to urge Congressmen to support a pro-business bill. When contacting your member of the House, emphasize the following points:
In order to remain competitive in the global marketplace, American employers must have access to skilledforeign workers under the H-1B program. The program allows U.S. companies and employers to take advantage of the best talent available from around the world.
Business is deeply committed to educating and training American workers. They know that American employees constitute their current and future labor market and are committed to education and training programs that will equip U.S. workers with needed skills to help solve current shortages. Such a commitment is consistent with employing H-1B foreign professionals for their needed skills.
The H-1B program, which brings to this country highly-skilled foreign professionals to work for American employers and make our country more competitive, should not be undercut by regulatory provisions that will negate the benefit conferred by increasing the cap on H-1Bs. These regulatory provisions will allow the Department of Labor to micromanage the human resource policies of U.S. employers who wish to employ H-1B professionals. These permanent changes are being proposed without any evidence of wide-spread abuses of the current system.
Congress is hearing from those who are against raising the cap and if they do not hear from enough people supporting a raise, then don't count on it passing. If you would like to call your Congressman or Congresswoman, they can be reached at 1-800-504-0031 or 202-224-3121. You can also get more information on who is your representative at the C-Span web site at http://congress.nw.dc.us/c-span/search.html.
June 6, 1998 - 12:12 pm Central US Time
There has been no legislative news to report in the last week. The House did not take up the H-1B bill for debate on the floor as earlier expected though hopefully that will happen this coming week.
With respect to the implementation of the H-1B cap at the Immigration and Naturalization Service, members of the American Immigration Lawyers Association had a teleconference with the INS to discuss the issue. The INS reports that its four Service Centers are holding in abeyance H-1B applications that were already received when the cap was reached early last month. The agency is waiting until a decision is made by Congress on raising the limit. Petitions received after the cap was reached have been rejected by INS unless an October 1, 1998 or late start date for the position is specified (see discussion on this below).
AILA asked the INS to consider a proposal that aliens in the US during a grace period and whose grace period expires on or after October 1, 1998 be considered "in status" for purposes of filing a change of status application filed with an October 1, 1998 start date. The INS said it will research the issue and decide on it before AILA and the INS meet again. The INS has also not made decisions on how it will treat applications to change to another nonimmigrant category such as a B-2 visitor visa for individuals whose status will expire prior to October 1st.
To see updates from before June 1998, click here.