| What’s
Connected? CONGRESSIONAL NEWS
- House Moves Wrong H-1B Bill; Leadership
Pressed to Correct Process
- Senate H-1B Vote Held Up
- Calls for “H-1B Plus” Come from
More Sources
- Section 110 Deal Reached between House,
Senate and Industry
SPOTLIGHT:
Employers and Senior High Tech Workers to Benefit
from Class Action Lawsuit Challenging INS Rules on
Advanced Degree Equivalency
POINT OF INTEREST
. . . Law Suit Filed on Health Care Worker
Regulations
|
CONGRESSIONAL
NEWS:
House Moves Wrong H-1B Bill;
Leadership Pressed to Correct Process
Recent events in the House Judiciary
Committee have demonstrated that H.R. 3983 (the
Dreier/Lofgren bill) likely is the only H-1B measure that can
pass the House this year. After three tries during three
scheduled days of votes, the House Judiciary Committee in
mid-May finally succeeded in voting on H.R. 4227, a bill
sponsored by Representative Lamar Smith (R-TX). In an
18-11, largely party-line vote, the Committee approved a
substitute version of H.R. 4227, sponsored by Chairman Smith
and Representative Sheila Jackson-Lee (D-TX). All Republican
members voted for the bill, and all but two Democrats,
Representatives Jackson-Lee (D-TX) and Rick Boucher (D-VA),
opposed H.R. 4227.
The business community opposes H.R.
4227, even as amended, and strongly supports H.R. 3983 as the
only bi-partisan bill that meets the needs of industry.
The amended H.R. 4227 makes only the following minor changes:
- Drops a requirement that H-1B recipients’ names
be posted on the Internet. However, the measure still
would mandate that the company, salaries, positions,
nationalities, and academic credentials of H-1B
professionals be posted on the Internet. Thus,
people could still identify, and possibly retaliate
against, specific individuals.
- Eliminates provisions that would have shifted
verification of foreign educational degrees from the
INS to the Department of State (DOS) and would have
required DOS to count H-1B visas.
- Eliminates a proposed requirement that employers must
demonstrate to the Department of Labor (DOL) that
they had hired more American workers and raised the
average salaries of those workers over the previous
year. The new version of H.R. 4227 still would
require employers to show that they had raised the
median salaries of American workers in the previous
year. This provision would impose new paperwork
burdens on businesses and may subject all payroll
records to DOL scrutiny.
- Eliminates the requirement that DOL issue final
regulations from the 1998 law before any new visas
are issued. The new version of H.R. 4227 states
that DOL still must issue final regulations by
September 1, 2000, although failure to do so would
not impact H-1B visa availability.
- Inserts a new provision requiring national studies of
recruitment and hiring of minorities and other
under-represented groups in the high-technology
industry, the training that H-1B employers undertake
for their U.S. workforces, and the degree of
compliance with the provisions of the 1998 H-1B law.
The rest of the measure remains as
introduced, and would:
- Set a minimum salary level of $40,000 for H-1B
recipients. Observers have noted that many of the
same Members of Congress who now endorse setting a
$40,000 minimum wage for foreigners voted against a
$1.25-an-hour hike in the minimum wage for Americans.
This provision also seems to violate the United
States’ commitments under GATS (the General
Agreement on Trade in Services).
- Eliminate companies’ ability to bring in
H-1B-qualified foreign professionals using other
business visas. Thus, international
transferees, treaty traders and investors, and
international exchange visitors who are in specialty
occupations would be required to get H-1B status
rather than L-1, E-1/2, or J-1 status. The
provision also would eliminate B-1 in lieu of H-1B.
- Eliminate a provision allowing employers to
substitute work experience for the educational
requirements needed to obtain an H-1B visa. While
employers often consider work experience in lieu of
education in their hiring decisions, under the
Smith/Jackson-Lee substitute, they cannot do so when
hiring H-1B professionals.
- Require any company applying for an H-1B visa to have
minimum assets of $250,000 or file additional
paperwork. This provision is not only anti-small
business, but also would limit the ability of start
up companies to use H-1Bs.
- Require H-1B recipients to work 35 hours a week. As
noted by Representative Zoe Lofgren (D-CA), this
requirement could conflict with the Family and
Medical Leave Act and other federal labor laws as
well as GATS.
The Committee also approved two minor
amendments to H.R. 4227. One, sponsored by Judiciary
Committee Chairman Henry Hyde (R-IL), would eliminate
teachers from the minimum salary levels for H-1B recipients.
The other, offered by Representative Jackson-Lee, offers a
partial fee waiver for schools that sponsor H-1B
applications. Committee Democrats, while supporting H.R.
3938, also used the markup and earlier Committee meetings to
push for other immigration issues. Representatives
Lofgren (D-CA), Conyers (D-MI), Frank (D-MA), Berman (D-CA),
and Nadler (D-NY) tried unsuccessfully to link NACARA parity
and a change in the registry date to the H-1B measure (See
“H-1B Plus” below).
The employer community opposes the
Smith/Jackson-Lee bill and is pressuring Representative David
Dreier (R-CA), who is an original co-sponsor of H.R. 3983, to
push for a vote on that bill. Representative Dreier, as
Chairman of the House Rules Committee, oversees the committee
that determines the rules by which bills are to be considered
on the House floor. However, despite business support
for H.R. 3938, House Republican Leadership has been insisting
that Representative Smith control the process. With the
issue now out of the Judiciary Committee, business
organizations are urging Chairman Dreier and House leadership
to move H.R. 3983.
In contrast to those lengthy and
confusing proceedings, the House Education and Workforce
Committee approved by voice vote and with bi-partisan support
H.R. 4420, introduced by Chairman William Goodling (R-PA).
This bill would reallocate the funds received from H-1B
filings to various DOL education and training programs.
Specifically, H.R. 4420 would ensure that any programs funded
by these fees are used to provide education and training in
H-1B qualifying occupations, and would forgive loans to math,
science and technical education teachers. Proponents of
this measure argue that previously funded programs did not
address the skilled worker shortages that are fueling the
demand for additional H-1B visas. Republican Members
are hopeful that this measure will be attached to the final
H-1B bill that goes to the floor for a vote, possibly in
mid-June.
Senate H-1B Vote Held Up
When the Senate Judiciary Committee
passed S. 2045, the Hatch/Abraham H-1B bill by a 18-2 vote at
the beginning of March, H-1B advocates were hopeful that the
Senate quickly would pass the bill. However, the
agreement to bring the needed bill to the floor has been held
up by other pressing business, disagreements about proposed
amendments, and individual Senators’ demands on
unrelated matters. Several Senators have indicated their
intention to attach to the H-1B bill other immigration and
non-immigration measures, including relief for Syrian Jews,
relief for certain Central Americans disadvantaged by
previous legislation, a change in the registry date,
agricultural worker legislation, and campaign finance. In
addition, some Senators are trying to make the lack of an
agreement a partisan issue with which to bait the other
party. Senate leadership on both sides of the aisle
have expressed frustration with the situation. Negotiations
are ongoing, and while not yet concluded, are expected to
lead to an agreement to proceed.
This ongoing wrangling only delays
passage of this much-needed legislation. H-1B advocates need
to make their voices heard by contacting their Senators and
urging them to press their leadership to bring S. 2045 to a
vote NOW.
Calls for “H-1B Plus” Come
from Many Sources
Many Members of Congress and
pro-immigration advocates have been urging Congress to
broaden its immigration agenda beyond H-1B visas this
session. This month, the White House weighed in on the issue.
In a May 11 letter to Congress, the Administration stated its
support for including NACARA equity of relief and a registry
date change in H-1B legislation.
In his letter to Chairman Henry Hyde
(R-IL) of the House Judiciary Committee and other
congressional leaders, Gene Sperling, Director of the
National Economic Council and Assistant to the President for
Economic Policy, wrote: “As we consider allowing more
foreign temporary workers into this country to meet the needs
of our high tech industry, it is critical that we take this
opportunity to correct two long-standing injustices currently
affecting many immigrants already in our country. The
Nicaraguan Adjustment and Central American Relief Act
(NACARA) should be amended to provide equitable treatment for
other Central American immigrants, and the Date of Registry
should be changed to offer long-term immigrants with
longstanding ties to this country the opportunity to apply
for legal resident status.”
Republican House Leadership responded
that the proposal could complicate efforts to increase the
H-1B cap by raising a partisan issue on what has become
bi-partisan legislation. Representative Lamar Smith denounced
the move, alleging that the Administration had “turned
its back on American workers and pandered to illegal aliens.”
Support for the inclusive proposal has
come from different organizations. Less than a week
after the Administration later, on May 16, a new left-right
coalition announced its support at a Capitol Hill press
conference organized by Jack Kemp, former Republican vice
presidential nominee and co-director of Empower America, and
Henry Cisneros, the President of Univision and former
Secretary of the U.S. Department of Housing and Urban
Development in the Clinton Administration. More
recently, the National Restaurant Association, noting that
its members are experiencing problems both in hiring enough
personnel and ensuring the legal status of the employees they
do hire, sent a letter to Senator Henry Reid (D-NV) endorsing
his bill that would change the registry date to allow
eligible individuals present in the US since before 1986 an
opportunity to obtain permanent residence. The National
Restaurant Association is a member of the Essential Worker
Immigration Coalition (EWIC), a group of employers and
associations interested in reforms to the immigration system
for the “essential workers” of our economy, i.e.,
unskilled and lesser skilled workers in all sectors of the
economy. These initiatives have raised these issues’
profiles both in Congress and nationwide and have helped push
them to the top of the agenda for the upcoming elections.
Section 110 Deal Reached Between
House, Senate and Industry
Following months of negotiations between
industry representatives, the Administration and Members of
Congress, Representative Lamar Smith (R-TX) and Senator
Spencer Abraham (R-MI) announced an agreement to amend
Section 110 of the Illegal Immigration and Immigrant
Responsibility Act of 1996 (IIRAIRA) to no longer require an
automated entry-exit system at all ports of entry to the
United States. Instead, the INS would create an
integrated database of all entry and exit data that currently
is collected. Then Representative Smith and Senator
Abraham quickly introduced the “Immigration and
Naturalization Service Data Management Improvement Act”
concurrently in the House and Senate that reflects this
agreement. Both the House and Senate have approved the
bill, which awaits the President’s signature.
This measure expressly prohibits INS
from using the legislation to introduce new entry or exit
documentary requirements on any visitors to the country.
Instead, it would phase in implementation of the new
searchable database system at land borders, seaports, and
airports. The measure also would create a new task
force of government agencies and private sector interests to
evaluate the need and costs of any additional measures.
All parties hailed the agreement as a
victory. Senator Abraham stated, “The agreement strikes
the right balance in enhancing our security and immigration
enforcement needs while ensuring that we preserve the jobs
and other economic benefits….” Representative Smith
also praised the agreement. Passage of this legislation
represents a victory for the Americans for Better Borders
(ABB) coalition, which was formed three years ago to
eliminate the entry-exit control requirements of Section 110.
Business leaders, trade, travel, tourism and legal
organizations and representatives of the Canadian and Mexican
governments worked to achieve this victory.
SPOTLIGHT:
Employers and Senior High Tech
Workers to Benefit from Class Action Lawsuit Challenging INS
Rules on Advanced Degree Equivalency by Ron Wada, Esq.
and Warren R. Leiden, Esq., Berry, Appleman & Leiden LLP
Senior level high tech workers and their
attorneys won a significant victory in May in a lawsuit filed
over the Immigration and Naturalization Service’s
interpretation of “equivalence to an advanced degree”
for certain employer-sponsored immigrants. This case
demonstrates the power of the courts as the place of last
remedy to agency actions, and will have far-reaching effects
on future interpretations of degree equivalency in
immigration law.
For the last couple of years, INS
Service Centers have been denying some cases filed in the
employment-based second preference (EB-2) category for
individuals who, in lieu of an actual master’s degree,
presented evidence of a bachelor’s degree and five years
of professional experience in the field (the test required
under INS regulations). The legislative history
specifies that Congress intended a bachelor’s degree
plus five years of relevant experience to be considered
equivalent to a master’s degree. However, the
Department of Labor (DOL) and INS interpretations of the
requirements have been anything but clear. As a result,
immigration attorneys sought clarification of the
requirements, both individually and through informal liaison
mechanisms established with the INS and DOL by the American
Immigration Lawyers Association (AILA). But such
clarification proved elusive. The two agencies could
not agree on a consistent set of requirements and would not
specify what set of job requirements and employee
qualifications would pass muster for EB2 petitions.
Because these denials were contrary to
the statutory requirements for the category, a lawsuit was
filed in federal court in February 2000, requesting that the
agency be enjoined from continuing to deny these cases.
On May 4, the U.S. District Court in San Francisco,
California issued an Order granting class certification and
entering a permanent injunction against INS. The court order
requires INS to reconsider its previous decisions denying EB2
status to individuals in the defined class according to more
liberalized standards announced by INS in response to this
lawsuit. The order also compels INS to accept
applications for permanent resident status filed by class
members in advance of the approval of their EB2 petitions, so
that class members will not have to leave the U.S. when their
temporary work visas expire, and will not be prevented from
applying for permanent residence at a later date due to a
rollback in visa availability.
These are extraordinary remedies that
would not have been possible in the absence of federal court
action. Equally remarkable is the speed with which the
suit progressed to a final order and permanent injunction,
which effectively resolves an issue that has plagued U.S.
employers, especially high tech workers in the information
technology industry for the past two years. Hundreds of
senior level professionals, especially those from India and
China who are facing restrictions in visa availability for
their countries and their employers, will benefit from the
court’s order.
What did the court order?
- Members of the certified class (and their spouses and
children) may file adjustment of status applications
with the INS without waiting for INS to approve the
underlying EB2 I-140 petition.
- INS must expeditiously readjudicate I-140 petitions
for a limited number of class members who are
currently abroad and had to depart the US because
their EB2 petitions were denied and their
nonimmigrant status in the US expired.
What are the eligibility
criteria for obtaining the benefits of the court order?
To obtain the benefits of the court
order, an individual must satisfy the definition of one of
the two defined sub-classes:
- EB2 I-140 petition was filed on or before March 20,
2000;
- the employer must have stated a minimum job
requirement on Form ETA 750A of a bachelor’s
degree plus at least five years experience;
- if the I-140 petition was still pending, either at a
service center or at the AAO, on March 20, 2000, the
individual is in sub-class 1;
- if the I-140 petition was subject to a final order
denying the petition (denied by the service center
and not appealed, or appealed and subsequently denied
by the AAO), then the individual is in sub-class 2.
An individual is not eligible for
the class benefits if any of the following conditions apply:
- The ETA 750A states a minimum education and
experience requirement of a bachelor’s degree
plus less than 5 years of experience (e.g., BS plus 2
years experience).
- The ETA 750A does not include a bachelor’s
degree as a minimum education requirement (e.g., MS
or equivalent only).
- The individual’s priority date is not current.
- The EB-2 petition was denied by the INS before July
1, 1997, and no appeal was timely filed.
- The individual fails to file applications for
adjustment, employment authorization or advance
parole by November 1, 2000.
- The individual is subject to an administratively
final decision (EB-2 petition was denied by a service
center and was either not appealed, or was appealed
and denied by the AAO) and fails to file a motion to
reconsider the petition by November 1, 2000.
- The individual meets the class definition but is
outside the United States and fails to submit a
completed questionnaire and all necessary supporting
documents to class counsel at Berry, Appleman &
Leiden before August 8, 2000.
What should employers and
individuals do to receive the benefits of the court order?
- For most individuals, it is no longer necessary to
formally join the class; instead, if you meet the
definition of either sub-class, you may receive the
benefits of the court order by filing the appropriate
documents with the INS.
- Certain individuals may be eligible for expedited
processing of their EB2 petitions.
For further information:
Further information on eligibility and
status of the suit is available on the Berry, Appleman &
Leiden website at www.USABAL.com,
or by sending an email inquiry to eb2litigation@USABAL.com.
POINT
OF INTEREST . . .
American Immigration Law Foundation
tells INS: Let My Healthcare Workers In!
The American Immigration Law Foundation
(AILF) filed suit this month in federal court against the INS
seeking regulations to allow thousands of healthcare workers
to become permanent residents.
A 1996 law required all healthcare
workers applying for green cards to obtain certification form
U.S. credentialing organizations. Following passage of
the law, INS stopped processing all pending healthcare cases
pending issuance of regulations regarding the certifications.
The INS failed to issue regulations until 1998, following a
prior lawsuit by AILF on behalf of nurses and occupational
therapists. However, those regulations only addressed
those occupations in the lawsuit, leaving foreign
Speech/Language Pathologists, Medical Technologists, Medical
Technicians, and Physical Therapists and other healthcare
workers out in the cold, and in legal limbo.
The current lawsuit seeks to force the
INS to issue the regulations that will allow these cases to
be decided. Employers or employees seeking more
information should contact their immigration attorney.