Section-by-Section Summary of the
“Technology Worker Temporary Relief Act” (H.R. 4227)
as passed House Judiciary Committee, 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 to employers who can document a net increase in the median wage paid to U.S. workers in the previous tax year.  Exception if the employer has “sold or otherwise legally transferred . . . the assets of a division or other severable portion” of the business before the end of the tax year.
• H-1B numbers revert to 65,000 in FY2003.

Comment:  Supporters 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 and an unduly burdensome requirement that does not reflect business reality.  There are many legitimate reasons why an employer may not be able to meet the median salary requirement, such as discontinuation of an unprofitable division, but still need an H-1B professional, perhaps to develop new technology that will result in a new product that will create thousands of new jobs!  A company’s median salary may decrease as a result of more retirees in the year than new hires.  Neither of these situations should merit debarment from participation in the H-1B program!  Finally, this provision would allow the Department of Labor to have access to all of an employer’s payroll records because it employs one H-1B professional.

Section 102  State Department Counting of H-1B Numbers (Deleted).

Section 103. Increased Portability of H-1B Status

• Allows H-1B nonimmigrants to begin working for a new employer as soon as that employer files a “nonfrivolous” petition for new employment or extension of status with the INS.  The H-1B nonimmigrant must not have been employed without authorization before or during the pendency of the petition.  If a petition is subsequently denied, work authorization is immediately terminated.

Comment:  The recent development of six-month waiting times for processing of change of employer petitions at the INS makes this provision extremely important to H-1B professionals and their prospective employers.  This provision is also in the Senate H-1B bill, S. 2045.

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.
• Amendment at Committee added an annual Cost of Living Adjustment to the $40,000 minimum beginning in FY2001
• Amendment at Committee also exempted public and private elementary and secondary schools from the minimum salary requirement.

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 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 extremists.  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 (DELETED)

NEW Sec. 203- Processing Fee

• Imposes a new $200 fee, on top of the current filing fee, the current $500 training fee, and the new $100 “noncompliance fee” (See Sec. 304) on employers for an initial petition or a petition to change employers.
• 50% of the fee shall go to INS for processing of business nonimmigrant petitions and to decrease the processing time for those petitions.
• 50% of the fee will go to DOL for decreasing the processing times for LCA filings and for enforcement activities with respect to LCAs.

Comment:  These fees are not necessary and pose exceptional hardships on nonprofit, governmental, small business and start-up employers.  H-1B petitioners should not pay for other types of visa petitions, and Congress must recognize the importance of adjudications and appropriate adequate funds to ensure that backlogs are addressed and current filings are processed in acceptable time frames.  Enforcement activities should be paid for by appropriations, not levying new taxes on the majority of law-abiding employers.

Sec. 204 – Degree Qualifications for Physical Therapists (Added in Subcommittee)

• Requires foreign nationals performing services as Physical Therapists to have a degree recognized by the Secretary of Education as equivalent to a master’s degree from an accredited U.S. physical therapy program.

Comment: Supporters believe this provision is unnecessary, and could require foreign physical therapists to possess higher credentials than what may be required for U.S. physical therapists.  The 1996 Immigration Law mandated that all foreign physical therapists obtain certification from an accredited agency that their education is equivalent to that of U.S. programs in order to obtain any nonimmigrant or immigrant status. Legislation in this area is not required.  However, the INS has delayed almost four years in promulgating regulations for physical therapists, and has been sued twice to do so.  Prompt issuance of these regulations should assure that foreign physical therapists have equivalent credentials to U.S. physical therapists.  Further, this provision may violate our commitments under GATS.

Sec. 205 – Effective Date

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

TITLE III –NONCOMPLIANCE PROVISIONS FOR H-1B NONIMMIGRANTS

Comment:  In spite of this title, these provisions have nothing to do with ensuring compliance with the H-1B program, 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.
• Exception for higher educational institutions and related nonprofits, governmental and nonprofit research institutions.

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. It would contradict provisions in the 1998 H-1B law that mandated that employers offer the same benefit and working conditions to H-1B workers as it would to U.S. workers.  This provision may violate the Family Medical and Leave Act, other labor laws and GATS.

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.
• Exception: an individual with a degree in a different specialty may use work experience to qualify in the specialty position offered.

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 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. Finally, this provision may violate the United States’ commitments under the General Agreements on Trade in Services.

Sec. 304 – Noncompliance 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:  Supporters oppose 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.   (This provision is also in H.R. 3983)

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

Sec. 401 – Extension of Displacement Attestations

• Extends the non-displacement attestation of ACWIA through FY2002.

Sec. 402 – Extension of DOL Investigative Authority

• Extends authority of DOL to initiate an investigation based on “credible evidence” through FY2002.

TITLE V – STUDIES AND REPORTS

Sec. 501 – Studies and Reports by General Accounting Office

• Requires GAO study of recruitment of underrepresented groups by H-1B employers, including African-Americans, Hispanics, women, and individuals with disabilities.
• Requires report to contain recommendations for changes to the H-1B program to improve recruitment among these underrepresented classes.
• Requires GAO to also study the education and training programs for incumbent workers of H-1B employers.

Sec. 502. –Study of H-1B Count

• Requires GAO to conduct a study to determine INS complance with the ACWIA requirement of an accurate count of H-1Bs visas and other information required under that Act.