American Competitiveness in the Twenty-first
Century Act of 2000
(S. 2045, as reported out of Committee)

Questions and Answers

 

SECTION 1.  TITLE

“American Competitiveness in the Twenty-first Century Act of 2000”

SECTION 2.  TEMPORARY INCREASE IN VISA ALLOTMENTS.

We just raised the number to 115,000, why wasn’t that enough?  Several reasons:

  1. The economy has grown at an unprecedented and unforeseen rate.   According to the most recent  Bureau of Labor Statistics data, since October 1998, over 3.67 million jobs have been created in the United States.  Since 1994, over 1 million jobs have been created  in the high tech  alone. 
  2. Unemployment is less than 4% -- a 30 year low.  In many metropolitan areas unemployment is less than 2.5%.  It is particularly difficult for employers to find workers with science, engineering, math and other technical skills.  The unemployment rate for engineers is less than 1.6%.  U.S. student enrollment in these disciplines dropped in the early 1990s and is just beginning to rise.  In many college technical degree programs, a large percentage of graduates are foreign nationals.
  3. When the cap was raised in 1998, 115,000 was a political compromise.  Although no one predicted the economy would grow at this magnitude, we believed that 115,000 visas would be insufficient after a few years.
  4. Economists have recognized the severe labor shortage across the spectrum.  That shortage is putting pressures on wages and inflation.  Alan Greenspan has stated that increased immigration is needed to relieve these pressures.

Isn’t 195,000 too many?  H-1B usage has grown since the cap was first implemented in 1992 and in the last four years the cap has been reached months before the end of the fiscal year.  INS estimates that based on rates of filing, up to 150,000 visas could have been issued this fiscal year.  But our economy continues to grow.  U.S. employers should not have to fret every year that the cap will be reached.  Congress should provide a sufficient number of visas to meet our legitimate needs for the next several years.

SECTION 3.  SPECIAL RULE FOR UNIVERSITIES, RESEARCH FACILITIES AND GRADUATE DEGREE RECIPIENTS.

Two exemptions from the cap:

If we are raising the cap, why do we also need these exemptions? Several answers:

  1. It makes little sense to educate and train foreign students in sorely needed disciplines at U.S. universities and then send them home to compete with us.  In many science and math graduate programs, more than half of the students are foreign nationals. 
  2. U.S. universities are on a different hiring cycle than most companies.  The H-1B cap has, perhaps, hit them the hardest because they do not do their hiring until the numbers have been used up; and because of the academic calendar, they cannot wait until October 1 to put someone in the class room. 
  3. American universities are the best in the world. To maintain our preeminence, we need to continue to attract the most capable minds and talents into teaching.
  4. These exemptions are similar to those in the “T” visa bills.

How many additional visas will this be? 

Higher education associations estimate that their current demand for H-1B visas is about 10,000 per year. Department of Education data shows that approximately 46,000 foreign nationals were enrolled in all master’s programs in 1995 and an additional 11,000 were enrolled in Ph.D. programs.  Of this group, historically more than half have returned to work in their home countries and would not apply for H-1B status.

SECTION 4.  LIMITATION ON PER COUNTRY CEILING WITH RESPECT TO EMPLOYMENT BASED IMMIGRANTS.

What is this section?  This provision is meant to address “oversubcription” issues in the green card process which require some employees to be terminated or sent abroad.   In a nutshell, there are 140,000 employment-based visas available each year (this includes spouses and children).  These visas are divided by law into five preference categories.  Within each category, the same number of visas are available to every country in the world, regardless of demand or population.  Thus, China gets the same number of visas as Jamaica.  Even though we have never used all 140,000 visas in a year (last year we used only 40,000 because of INS processing delays), backlogs of up to five years have developed for Chinese and Indian skilled workers.  This makes sense as India and China are populous countries with strong scientific-engineering educational programs that produce people with skills sought by U.S. employers.

If these workers cannot reach the last stage of processing their green cards(adjustment of status) before their H-1B stay expires, they must be terminated and sent home or relocated to the company’s overseas facilities.  This is a waste of time and resources, and an unnecessary headache for the company, the worker and the worker’s family.

Doesn’t this give these workers an unfair advantage in the green card process? These workers already have an approved labor certification and INS immigrant petition.  They just are not allowed to file the last set of paperwork (adjustment of status) because too many people from their country are in line ahead of them.  Adjustment of status is essentially a process whereby INS checks the worker and his/her family’s medical history, criminal background and tax records to make sure they should not be excluded from the U.S.  Virtually no skilled immigrants are turned away at this stage.

What is the solution?  This section provides two fixes to this problem: 1) It allows unused visa numbers to roll over from one country to another to help clear up the backlogs regardless of the per country limits.  2) It extends time in H-1B status beyond six years for workers caught up in this situation.   If these are workers the U.S. government has already certified that the country needs, why do we care what country they are from as long as visas are available?

SECTION 5.  INCREASED PORTABILITY OF H-1B STATUS.

How is this different from current law?  Currently, an H-1B worker may only switch employers after the new employer’s petition has been approved – a process that used to take less than 30 days and now takes several months.  Like U.S. workers, H-1B workers, especially those with hot skills, frequently change employers to take advantage of better pay and benefits across the street.  This will facilitate this move and make it easier for all parties to plan.

What happens if the new petition is denied?  If the new petition is denied, the worker must immediately terminate H-1B employment. 

SECTION 6. EXTENSION OF AUTHORIZED STAY IN CASES OF LENGTHY ADJUDICATIONS.

What is the intent of this provision? Critics of the H-1B program often say “Give them green cards, not H-1Bs.”  This provision helps address that concern by encouraging the government to process green card applications in less than a year.  Most H-1Bs must go through three steps to become a permanent resident:

  1. Labor Certification.  The Department of Labor must certify that the employer has attempted to recruit qualified U.S. workers for the job but that none are available.  Certain workers with exceptional or unique skills are exempt from labor certification and can start at step 2.
  2. Immigrant Petition (form I-140). The INS must review the worker’s credentials to ensure she qualifies for admission in one of the employment-based preference categories.
  3. Adjustment of Status through INS (Form I-485) or Consular Processing abroad.  The INS or a U.S. overseas consulate must certify that the worker and his/her family are not excludable because of  medical problems, criminal background, moral turpitude, welfare dependency  or similar grounds.

Currently, the green card process takes up to six years. It is difficult for H-1B workers to change jobs during this time.  Just a few years ago, DOL backlogs were over two years but INS was able to process forms I-140 and I-485 in less than six months.  Now, DOL has improved its processing times but INS takes 3-4 years to process its petitions.  Employers and employees alike should not be penalized by these unconscionable delays.

What is the solution?  This provision provides a limited fix by allowing H-1B workers to stay beyond their six year maximum if they have been stuck in the green card process for more than one year.  For most H-1Bs, this process begins with the filing of a labor certification application.  This LCA must be approved and the immigrant petition pending for the worker to be eligible for an extension.  For workers exempt from labor certification, their immigrant petition must have been pending for at least one year.  This provision will still require employers to plan ahead and file the appropriate paperwork with the government.  However, employers will no longer be penalized by the government’s inability to process paperwork in a timely manner.

SECTION 7.  EXTENSION OF CERTAIN REQUIREMENTS AND AUTHORITIES THROUGH FISCAL YEAR 2002.

Why extend these provisions?  The Department of Labor and INS have not issued regulations implementing several of the attestations from the 1998 law.  These regulations were required for those provisions to become effective.  Since more than half of the period of ACWIA’s effectiveness is passed, lawmakers want to extend the provisions to evaluate their effectiveness based on final regulations.  However, employers, attorneys and Members of Congress opposed many provisions of the proposed regulations issued by the Department of Labor in January 1999, and are hopeful that final regulations will be closer to Congressional intent and not subject all employers to additional burdens and demands.

SECTION 8.  RECOVERY OF VISAS USED FRAUDULENTLY.

Critics of the H-1B program allege that there is rampant fraud in the program, both with fraudulent credentials presented by employees and employers who fail to place workers in the promised jobs or pay appropriate wages.  Documented instances of abuse are rare, although there have been a few widely publicized instances of abuse.  Employers expend great resources to comply with the complex H-1B laws.  Any fraud or abuse hurts legitimate users of the program and should be severely sanctioned. However, government efforts to combat fraud should not impose new burdensome requirements on all employers.  H-1B numbers used fraudulently should be recovered for legitimate users.

SECTION 9.  NSF STUDY AND REPORT ON THE “DIGITAL DIVIDE”.

SECTION 10. MODIFICATION OF NONIMMIGRANT PETITIONER ACCOUNT PROVISIONS

SECTION 11. KIDS 2000 CRIME PREVENTION AND COMPUTER EDUCATION INITIATIVE