Section-by-Section Summary of the “Technology Worker
Temporary Relief Act” (H.R. 4227), with Comments

TITLE I  - NUMERICAL LIMITATIONS ON H-1B NONIMMIGRANTS

Sec. 101 Temporary Increase in H-1B Cap

• FY2000 – Suspends the cap for the current fiscal year.
• FY2001, FY2002 – Allows unlimited visas above caps in current law (107,500 for FY2001 and 65,000 in FY2002). However, extra numbers are available only after DOL and INS implement final ACWIA regulations and only to employers who can document the following for the previous tax year:  1) more U.S. workers were on the payroll at the end of the year than at the beginning; 2) a net increase in the total wages paid to U.S. workers; and, 3) a net increase in the median wage paid to U.S. workers.
• H-1B numbers revert to 65,000 after FY2002.

Comment:  We agree that market demand and not arbitrary caps should drive the H-1B program.  However, the lifting of the cap in this bill is an illusion.  Additional visas above the caps in current law are hostage to government regulators. The proposed regulations issued by the Department of Labor in January 1999 contained many burdensome, contradictory and unauthorized provisions.  DOL and other government agencies have been reviewing and rewriting the regulations for over a year.  We still do not have final regulations from the Immigration Act of 1990.  Extra visas should not be held hostage to DOL regulations.  Employers should not be forced to accept bad regulations in order to have access to needed foreign professionals.  Finally, the requirement that employers prove they have more U.S. workers on the payroll is unduly burdensome and does not reflect business reality.  There are many reasons why a company may not be able to meet these restrictions but still have a need to hire a specific H-1B professional.  For example, a company may discontinue an unprofitable division, but need an H-1B professional to develop new technology that will result in a new product that will create thousands of new jobs!  A company’s payroll may decrease as a result of more retirees in the year than new hires, and average payroll may decrease for the same reason.  Neither of these situations would merit debarment from participation in the H-1B program!

Sec. 102 Tracking the H-1B Count

• Moves responsibility for tracking H-1B issuances from INS to the State Department.  The Secretary of State would be required to propose regulations to ensure an accurate count.  This provision would take effect beginning in the fiscal year after the date of enactment.

Comment: INS has done a poor job of tracking the number of H-1B approvals and collecting data on H-1B usage as mandated by ACWIA.  Whether the State Department desires this task or would do a better is unclear, since the Department would still need to rely on INS date regarding its approved petitions.

TITLE II – NEW REQUIREMENTS ON PETITIONING EMPLOYERS

Sec. 201 – Minimum Salary Requirement

• All foreign professionals working on H-1B visas must receive an annual salary (including cash bonuses and similar compensation) of at least $40,000.  Exception is made for employees of higher educational institutions and affiliated non-profits and nonprofit and governmental research organizations.

Comment:  This provision would, in some cases, require H-1B workers to be paid significantly higher than their U.S. counterparts.  This is an artificial minimum wage that would skew the market determination of wages.  Employers already must guarantee that they will not pay H-1B professionals any less than U.S. counterparts.  Employers in locations where the standard of living is lower than larger cities will be disadvantaged, as will employers in industries that have traditionally lower wage scales, such as academic research (not all of which is conducted at exempted institutions – many government research institutions employ contract researchers who are employed by for-profit companies who would not be exempted).

Sec. 202 – Submission of Data on H-1B Nonimmigrant to the Internet

• Within 30 days after hiring an H-1B professional, an employer must furnish personal data on the individual to the Department of Labor to be posted on the Internet.  The data must include the name of the individual, his or her position, salary, employer, academic credentials, and nationality.

Comment:  This provision is an invasion of privacy and would target these individuals for the attention of radicals on the Internet.  Employers already submit this information to the INS and Department of Labor, and must notify employees of the occupation, salary and job location of the H-1B nonimmigrant.  Internet posting is unwarranted and unacceptable.

Sec. 203 – English Language Requirement for H-1B Teachers

• This section would require all H-1B professionals who will be teaching (at any level, for any institution), to demonstrate English language proficiency.

Comment:  This provision is invasive and unnecessary.  Educational institutions already have standards for those they hire to teach.  Furthermore, teachers of foreign languages, and particularly teachers of English as a Second Language, have different language requirements.  Government regulation of these requirements would result in new bureaucracies.  It took four years for government regulators to determine that health care workers from Canada, Britain and Australia did not have to take English examinations!

Sec. 204 – Effective Date

• These provisions would take effect upon enactment for petitions filed on or after October 1, 2000.

TITLE III – ANTI-FRAUD PROVISIONS FOR H-1B NONIMMIGRANTS

Comment:  In spite of this title, these provisions have nothing to do with combating fraud and everything to do with restricting flexible work arrangements and the ability of small business and start-ups to use the program.

Sec. 301 – All “Specialty Occupation” Workers Must Have H-1B Visas

• All foreign nationals working in the United States in a “specialty occupation” (as defined by the INA) or as a fashion model must have an H-1B visa.  Exception: foreign nationals in H-2A, O or P status.

Comment: This “specialty occupation” provision appears to prevent nonimmigrants in B, L, E, F or other status from holding “specialty occupations.”   It would prohibit the current B-1 in lieu of H-1B practice, under which professionals being temporarily transferred to the United States for short-term assignments, and during which they continue to remain employed by an employer abroad, enter to engage in collaborative projects, training of U.S. workers, and other joint programs.  It would also limit the ability of companies to take advantage of the more flexible intracompany transferee and treaty trader and investor classifications.  If there are multiple classifications under which an employee may enter the United States, the employer and the employee should be able to choose the most direct and advantageous.

Sec. 302 – Full-Time Employment

• H-1B employees must work at least 35 hours per week.

Comment:  There is no data to support the theory that part-time H-1B petitions are more susceptible to fraud, nor that part-time H-1B employees are more susceptible to abuse. This provision eliminates part-time H-1Bs and will have the effect of virtually eliminating concurrent employment.  It will eliminate the ability of employers and employees to negotiate flexible schedules for whatever reason, including H-1B employees seeking a better balance of career and family, and spouses of foreign nationals who wish only to supplement their income. This provision may pose particular problems for schools and other industries where a shorter workweek is standard.  

Sec. 303 – Changes in Equivalency Standards

• H-1B worker must have attained a bachelor's or higher degree in the specific specialty in which the worker will be employed.  Eliminates ability to obtain “equivalency” through a combination of education and work experience.
• Foreign degrees must be certified by the Department of State to be the equivalent of a U.S. degree.  DOS must also verify the authenticity of the degree.

Comment:  This is a major change in the H-1B law, and overturns decades of administrative practice and legal precedent.  Work/education equivalencies are common in the H-1B field, particularly where the foreign national’s college degree is not in the same specialty area as his work experience, or when an individual with little or no post-secondary education has decades of specific work experience.   Currently, the foreign national must show twelve years of professional-level experience to document equivalence to a degree.  Qualified foreign national employees with significant work experience should not be denied entry based on this rigid insistence that the beneficiary have the exact educational degree. In addition, requiring the Department of State to certify and verify every foreign degree will be cumbersome and time-consuming.   Finally, this provision may violate the United States’ commitments under the General Agreements on Trade in Services.

Sec. 304 – Anti-Fraud Fee

• A $100 fee will be imposed on each initial petition for H-1B status as well as petitions to change employers.  The money collected from this fee will be split between the INS and DOS for anti-fraud programs.  40 percent of the money will also be used to fund the credentials evaluations required of DOS under Sec. 203.

Comment:  AILA opposes imposing an additional fee on law-abiding petitioners to support the government’s investigations of fraudulent cases.  Such law enforcement activities should be supported by direct government appropriations.

Sec. 305 – New Requirements on Employers

• All H-1B employers must meet the following new criteria:  

1. Maintain a place of business in the United States that is licensed in accordance with any applicable State or local business licensing requirements and is used exclusively for business purposes.  Exception:  institutions of higher education, governmental or nonprofit entities.
2. Have gross assets of not less than $250,000 as evidenced by most recent SEC filing or regulations to be promulgated by Attorney General. If does not meet the minimum assets, must document business activity by submitting extensive documentation. Exception: governmental entities.

Comment:  This provision is anti-small business.  Small businesses and start-ups create more jobs in the economy than any other sector.  Obtaining the services of H-1B nonimmigrants is essential to the growth of these companies.   Extra bureaucracy and paperwork should not hinder the ability of these companies to grow.

Sec. 306 – Requiring filing of W-2 Forms

• Requires all H-1B employers to submit copies of the employees’ W-2 forms annually to the Department of Labor for petitions filed on or after October 1, 2000.

Comment:  This provision, while aimed at assisting the Department of Labor in investigations could be burdensome for large companies who must segregate their H-1B employee’s documents from their electronic submissions to the IRS. 

Sec. 307 – Effective Date

• The provisions of this title will apply to petitions filed on or after the date final regulations are issued to carry out these provisions.

TITLE IV – EXTENSION OF PROVISIONS FROM THE AMERICAN COMPETITIVENESS AND WORKFORCE IMPROVEMENT ACT OF 1998

Extends the new attestations and enforcement provisions in ACWIA through FY2002.