Comparison of Current Law and H-1B Legislation in 2000

This document presents some of the major provisions of the current H-1B law from 1998 and various legislative proposals this year, as well as some of the employer community’s major concerns with some of these bills.

CURRENT LAW:

The American Competitiveness and Workforce Improvement Act of 1998 (ACWIA):

• Tripled the fines and penalties for employers who willfully violate the requirements of the program, including underpaying H-1Bs, failing to provide adequate notice, requiring the individual to pay a penalty for leaving, or failing to provide equal benefits to H-1B nonimmigrants, thus undercutting similarly situated U.S. workers.
• Required new attestations of employers who are “dependent” on H-1B professionals (more than 15% of the workforce) – must show they have taken steps to recruit U.S. workers but were unsuccessful , and must not displace any U.S. worker to hire an H-1B in the same job.
• Increased visas from 65,000 to 115,000 in FY1999 and FY2000, 107,500 in FY2001 and back to 65,000 in FY2002.
• Introduced a fee of $500 for each H-1B petition to fund NSF scholarships and DOL technology skills training grants.

PENDING LEGISLATION IN THE HOUSE:

H.R. 3983 – HI-TECH Act  (Dreier/Lofgren Bill):

• Would increase cap to 200,000 for next three fiscal years.  Would provide set-asides within the cap of 60,000 for advanced degree-holders (to ensure that an adequate number of H-1Bs are going to highly educated professionals), and 10,000 for employees of higher educational institutions (who have been disadvantaged by the early hitting of the cap).
• Would leave all attestations in ACWIA alone and would extend them through the next three fiscal years.
• Would require additionally that employers file copies of W-2s with the DOL to prove they are paying the required wages.
• Would increase the training fee to $1000 and would redirect funds to TRIO programs (Upward Bound), loan forgiveness for teachers of math and science, and Regional Skills Alliances.
  • We are concerned about the impact of increased fees on those who have the hardest time paying:  non-profit organizations, local school districts and governments, and small businesses and start-ups who may not have the capital to pay hefty fees on top of the large expense of hiring an H-1B worker.
• Provides relief for H-1B nonimmigrants harmed by INS delays in processing their green cards.
• Allows recapture of permanent visas lost due to INS delays.
• Provides relief for Asian immigrants from limits imposed by per-country quotas on employment-based immigrants.

H.R. 4227 – Technology Worker Temporary Relief Act (Smith/Jackson-Lee bill):

• Would suspend the cap for FY2000 and provide unlimited visas above the current caps in FY2001 and 2002.  HOWEVER, for visas over the current limits (107,500 for FY2001 and 65,000 in FY2002) the employer must show that its average U.S. payroll is higher than the previous tax year.

  • The “no cap” provision of the Smith bill is an illusion.  The restrictions would make any additional visas unusable

  • Additional visas would be unusable to any employer who, for even the most legitimate reasons, could not meet the condition, such as an inability to find new hires to replace retiring employees, or moving resources from an unproductive business to a newly developing one.  Further the provision would require employers to provide the Department of Labor with access to ALL of its payroll records.

• Would impose a new salary floor of $40,000 for H-1Bs (exception for employees of higher education, local elementary and secondary schools, and nonprofit and governmental research institutions).  Allows for annual Cost of Living Adjustment of the salary floor.
  • This would require employers to artificially inflate the salaries of H-1B professionals above the market in many areas of the country and industries, and above their U.S. counterparts.  This would foster rancor and discrimination, since the salaries of H-1B employees are posted for employees to see.  This provision could violate our commitments under GATS.  Many of the supporters of this minimum wage for H-1Bs have previously voted against any minimum wage increase for U.S. workers.
• Would require all foreign nationals working in specialty occupations or as a fashion model to hold H-1B status (Exceptions: foreign nationals in H-2A, O or P status).
  • This provision would eliminate B-1 in lieu of H-1B and would prevent foreign professionals from using the L­1, E-1/E-2, J-1, or any other nonimmigrant visa category, an undue restriction on the ability of those indivdiuals and their employers to select the most appropriate visa category.
• Would require details of an H-1B’s personal data to be posted to the Internet.
  • Although the bill no longer requires the individual’s name to be included in the posting, enough other information is required to make it very simple for anyone to find the individual.  This provision is an invasion of privacy and would target these individuals for extremists on the Internet.  Employers already must furnish this data to government agencies.  There is no reason to also post it to the Internet.  Furthermore, posting on the Internet would allow competitors access to details about key personnel.
• Would eliminate the ability to substitute extensive work experience for a degree.
  • Current law allows an individual with little or no post-secondary education but extensive (12 years) of professional work experience.  These equivalencies are common and allow individuals who can greatly benefit our country because of their specific experience to enter.  Elimination of this equivalency could violate our commitment under GATS.
• Would require H-1Bs to be full-time employees.
  • Another provision of law requires H-1B employees to be offered the same benefits as U.S. employees, including flexible schedules and part-time arrangements, in order not to undercut U.S. workers.  This provision would nullify that, and would eliminate flexible work arrangements for H-1B employees.
• Requires employers to document $250,000 in assets in order to sponsor an H-1B, or submit additional paperwork and be subject to additional scrutiny.
  • This provision would hamper the ability of small companies and start-ups to utilize the H-1B program.  Current INS bureaucracy already places more burdens on these companies, and often their petitions are slowed down, resulting in many months of delay.  Congress should not be hampering this segment of our economy, which creates more than half of all new jobs in the country.

PENDING LEGISLATION IN THE SENATE

S. 2045 –American Competitiveness in the 21st Century Act (Hatch/Abraham Bill)

• Would increase the cap to 195,000 for FY2000 and the next two fiscal years.  Provides an exemption from the cap for: (1) H-1B professionals employed by higher education institutions and their affiliated entities or governmental or non-profit research institutions; and (2) advanced degree graduates of U.S. colleges and universities.
  • The exemptions ensure that higher educational and research institutions are not “frozen out” of hiring H-1Bs because of the cycle of hitting the cap early each year.  These employers are assured of being able to continuously hire the best and brightest to educate our college students and pursue cutting edge research.  The exemption for graduates of U.S. schools assures that our foreign competitors do not take advantage of the training and education these individuals earn from our higher education institutions.
• Provides relief for Asian immigrants from limits imposed by per-country quotas on employment-based immigrants.
• Increases portability of H-1B status by allowing H-1B professionals to change jobs when their new employer files the petition on their behalf.
• Provides relief for H-1B nonimmigrants harmed by INS delays in processing their green cards.
• Extends worker protections from ACWIA through FY2002.
• Recovers fraudulently issued H-1B visas for the current year’s cap.
• Reallocates education and training fees to low-income scholarships and K-12 education programs, authorizes funds for after school technology programs, and requires a National Science Foundation study on the “digital divide.”