Summary of the
“Technology Worker Temporary Relief Act” (H.R. 3814),
with Comments

TITLE I  - NUMERICAL LIMITATIONS ON H-1B NONIMMIGRANTS

Sec. 101 One Year Increase in H-1B Visa Quota

FY2000 – Makes 45,000 additional visas available after the current 115,000 cap is reached.  However, extra numbers available only after DOL implements 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 current law after this fiscal year (107,500 in FY01 and 65,000 thereafter).

Comment:  The strong economy combined with the lowest unemployment rate in 30 years has led to an increased demand for skilled professionals, including H-1Bs, in all industrial sectors.  This bill does not provide sufficient numbers of visas for this year or the foreseeable future.  Further, the extra visas this year will be unusable if DOL does not issue final ACWIA regulations.  The proposed regulations issued 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.  Finally, the requirement that employers prove they have more U.S. workers on the payroll is unduly burdensome and reflects a profound misunderstanding of why employers use H-1B professionals.   Employers hire H-1B professionals because they have skills and knowledge needed by the employer.  In some cases, this need is a consequence of a shortage of domestic workers in those fields, but in many cases the foreign national’s expertise is needed for other reasons, such as expansion into global markets, use of a foreign product or process not available in the United States or other reasons.  Furthermore, this provision does not accord with business reality.  For example, a large multinational employer may restructure business operations and reduce overall payroll but still have a need for core H-1B professionals.

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 – ANTI-FRAUD PROVISIONS FOR H-1B NONIMMIGRANTS  

Comment:  This Title, in spite of its stated intent, has less to do with combatting fraud than restricting the ability of small- and medium-sized employers to use the H-1B program.

Sec. 201 – 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.”   The underlying intent of this provision is unclear.

Sec. 202 – 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 higher education or other industries where a shorter workweek is standard.  

Sec. 203 – 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.  Currently, the foreign national must substitute three years of work experience for every year of college.  It is troubling that qualified foreign national employees with significant work experience may 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. 

Sec. 204 – 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:  Sponsors should 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. 205 – New Requirements on Employers

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

• 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.
• Have gross assets of not less than $5,000,000 as evidenced by most recent SEC filing or regulations to be promulgated by Attorney General. Exception: governmental entities.

Comment:  This provision is anti-small business.  It would exclude many small- and medium-sized businesses and start-ups from obtaining the services of H-1B nonimmigrants, many of whom are essential to the growth of these companies.   It also would impose additional paperwork burdens on all employers.  The Government should not restrict access to this program on this basis.

Sec. 206 – 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 III – EXPEDITED PROCESSING FOR CERTAIN EMPLOYERS

Sec. 301 – Expedited Processing

Employers meeting the conditions outlined below are eligible for expedited processing of H-1B petitions.  Such petitions will be handled at a special office.  Properly filed applications will be automatically approved if the INS has not acted within 30 days.

• The Attorney General will establish procedures for employers to apply to participate in this program.  Employers must meet the following criteria:
• Have been doing business continuously for at least 5 years.
• Have reported at least $100,000,000 in gross receipts or sales on a U.S. income tax return in each of the 2 most recent tax years.  Exception: higher education and related nonprofit entities, nonprofit research organizations and governmental entities.
• Not be H-1B dependent.
• Never had a petition denied or revoked because of fraud.  Exception: if denial or revocation was done in cooperation with employer.
• Never been found in willful violation of LCA attestations.
• Not found to have made misrepresentation of material fact on LCA in previous five years.
• Employer shall pay a $250 fee for each expedited petition.  This fee will be deposited in INS’ Examinations Fee Account.

This provision is not effective until final regulations are issued.

Comments:   While supporting INS efforts to speed up processing of cases, there are many concerns with paid “expedite” proposals.  Specifically, in the H-1B context, it appears that the law mandating that H-1B visas be issued (or H-1B status be granted) strictly in the order that petitions are filed could make any type of expedite for H-1B cap cases problematic.  Furthermore, sponsors could not support any expedite proposal without protections to ensure that the processing of other filing types will not be further neglected in order to meet the expedite goals.  Furthermore, this proposal is particularly egregious in that it would restrict the availability of expedited processing to only the largest of large employers. 

TITLE IV – COLLECTION AND USE OF H-1B NONIMMIGRANT FEES FOR SCHOLARSHIPS

Sec. 401 -  Increase in H-1B Fees

The H-1B fee shall be increased from $500 to $1,000 per petition for petitions filed after the date of enactment of this bill through September 30, 2001.

Comment:  Sponsors are concerned about additional fee increases in the H-1B program.  Sponsors are concerned that ever increasing fees would also mean a burden to smaller employers that use the program.  Furthermore, H-1B employees do not displace American workers; in fact, H-1B employees often generate many new jobs in our economy by creating new projects, products, and programs.  Employers already spend billions of dollars each year to educate and train U.S. workers. Therefore, sponsors do not believe that employers that hire foreign nationals should be “penalized” with an additional tax for their sponsorship. 

Sec. 402 – Repeal of DOL Program

The fee revenues that now go to the Department of Labor for operation of the Job Training Partnership Act shall instead go toward scholarships.

Sec. 403 - Scholarships

Scholarships shall be awarded by the National Science Foundation on the basis of merit  directly to students who will be graduate students or undergraduate students in their junior or senior years pursuing bachelor's or graduate degrees with majors in computer science, computer programming, information sciences, systems analysis, computer engineering, electrical engineering, electronics engineering, or electronic commerce.  Scholarships are currently awarded to “low-income” students studying “mathematics, engineering or computer science.”

Comments:   Sponsors do not have specific positions on the best means to educate and train U.S. workers.  However, Sponsors do believe that fees paid by employers for adjudications services should first and foremost go to support those services.  The INS has tremendous backlogs and has stated that it will face a $151 million shortfall in funds for adjudication this year.  Sponsors believe that education and training funds should be the focus of other legislation.  Immigration legislation should focus on immigration priorities.