Connect! Newsletter, U.S. Immigration, Law Offices of Carl Shusterman

WHAT'S CONNECTED?

EMPLOYER ALERT:

H-1B Cap Reached: New I-129W Form Required for H-1B Filings

CONGRESSIONAL NEWS:

House Bipartisan H-1B Bill Has Strong Support but Difficult Path
Senate H-1B Bill Passes Committee, Heads to Floor
House and Senate Poised to Make Visa Waiver Program Permanent
Backlog Reduction Bills Proposed in Congress

SPOTLIGHT:

Immigration Advocates Urge Larger Agenda This Congress

POINT OF INTEREST . . . H-1B Statistics from INS

The INS announced in the Federal Register on March 21 that it had enough approved petitions and cap-subject cases filed at the four Service Centers to reach the FY 2000 limit of 115,000 new H-1B approvals. According to the notice, the INS no longer will accept petitions asking for a date before October 1, 2000. However, due to pending legislation, the INS has agreed that petitioners who state "October 1, 2000 or earlier" on the petition form will be eligible for any new visas made available this year. The INS also has stated that it will extend the nonimmigrant status of F-1 and J-1 students with pending H-1B change of status petitions. However, their work authorization will expire with their current practical training permission.

INS also announced in March that a new Form I-129W must be submitted with all H-1B petitions, including change of employer and extension of status cases. The INS will use this new form to collect information required by the 1998 H-1B law, and to determine whether or not the petitioner is required to pay the $500 "training fee." All petitions filed after March 30, 2000 must include this new form.

Employers are urged to consult with their immigration attorney about the impact of these announcements on any pending or future cases.

The House of Representatives following the Senate lead, took up in March the issue of increasing the H-1B cap. Representative Lamar Smith (R-TX), Chairman of the House Immigration Subcommittee, along with Representatives Tom Campbell (R-CA), Bob Goodlatte (R-VA), and Chris Cannon (R-UT), introduced H.R. 3814, the Technology Worker Relief Act of 2000. The employer community strongly denounced this measure which included provisions that would increase the number of H-1B visas (by only 45,000 visas) for the current fiscal year alone, but tie this increase to the Department of Labor issuing final regulations implementing the 1998 H-1B law, thereby holding the additional visas hostage to bureaucracy. In addition, in order to apply for the additional visas, an employer must demonstrate that in the last year it has increased its overall employment of U.S. workers, its total payroll provisions in the United States, and its median salary levels. The increased employment and payroll provisions amount to a new no-layoff attestation on all employers and make no sense in the current business climate where many companies need to let go of unprofitable departments and projects, but may still need the particular expertise of an H-1B non-immigrant in a new project. Other provisions of the bill included permanent changes to the H-1B program, requiring that H-1B non-immigrants only work full-time (at least 35 hours per week) and eliminating experience equivalence to a degree for H-1B beneficiaries.

Following the introduction of the Smith bill, a bi-partisan group of Representatives, led by David Dreier (R-CA) and Zoe Lofgren (D-CA), introduced H.R. 3983 on March 15. The Helping to Improve Technology Education and Achievement (or HI-TECH Act) has strong bi-partisan support from key Representatives, including Dick Armey (R-TX), the Majority Leader, Tom Davis (R-VA), the chairman of the Republican Congressional Campaign Committee, and Representative Patrick Kennedy (D-RI), chairman of the Democratic Congressional Campaign Committee. Minority Leader Richard Gephardt (D-MO) also has indicated his support for the measure. H.R. 3983 would:

The business community immediately hailed this bill as a balanced approach that would allow for a reasonable increase in the cap while also emphasizing the continuing need to educate and train U.S. workers for future high-tech positions. While some proponents still are concerned about the impact of the increased visa fees on non-profits, small businesses and state and local governments that are increasingly using the H-1B program, H.R. 3983 offers the best chance to successfully move an H-1B bill through the House. In fact, this measure continues to generate bipartisan support as evidenced by growing a list of co-sponsors from both sides of the aisle.

However, Chairman Smith is continuing to try to exert his influence. He recently introduced a "new" version of his H-1B bill, H.R. 4227,and scheduled a markup in the Immigration Subcommittee directly after introduction. Still named the Technology Worker Temporary Relief Act, the bill is very similar to the earlier H.R. 3814. While this new bill would eliminate the H-1B cap through FY 2002, it also would maintain most of the same restrictive provisions on the use of these visas that were in his earlier bill: tying additional visa numbers to the INS and Department of Labor (DOL) issuing regulations from ACWIA; requiring employers to attest that they have hired more U.S. workers and have a higher total and average payroll than in the previous year; eliminating part-time H-1Bs and work experience equivalencies; and requiring employers to have gross assets of at least $250,000. H.R. 4227 also adds additional poison pills, including requiring DOL to post on the Internet the name and personal data of all H-1B recipients, setting a minimum pay of $40,000 for recipients, and eliminating the use of B-1 visas in lieu of H-1Bs. The bill also would mandate that the State Department count H-1Bs and certify foreign degrees. Finally, H.R. 4227 would require that all H-1B professionals in teaching positions demonstrate English language proficiency.

In his opening statement at the subcommittee markup, Representative Smith reiterated that "there is still no objective, credible study that documents a shortage of American high-tech workers," and called for increasing the skill levels of family-based immigrants. Democratic members urged Chairman Smith to address other important immigration issues this year, including granting relief to Central Americans who were bypassed by recent laws and individuals who were unfairly blocked by the government from applying for the amnesty program in the mid-eighties. Other members of the subcommittee urged that agricultural worker issues be addressed as well. While Representative Lofgren offered H.R. 3983 as a substitute for the Chairman's bill, the amendment was withdrawn on a technicality, and H.R. 4227 was passed by a voice vote, although many Democrats voted against the bill.

Following the markup, employer groups announced that H.R. 4227 does not respond to the need for educated professionals because it makes any additional numbers virtually inaccessible, and reiterated their support of H.R. 3983. Since Representative Dreier (who is Chairman of the House Rules Committee -- which functions as the arbiter for how and which bills get to the floor for a vote) is the original sponsor of H.R. 3983, employer advocates are hopeful that his bill will be the vehicle that ultimately passes the House. However, advocacy is needed to ensure this happens. Business immigration advocates should urge their Representatives to co-sponsor H.R. 3983 and pressure House leadership to move that bill to the floor as soon as possible.

The Senate Judiciary Committee on March 9 marked-up and passed (by a 16-2 vote) S. 2045, the American Competitiveness in the 21st Century Act. S. 2045 is sponsored by Judiciary Committee Chairman Orrin Hatch (R-UT) and Senator Spencer Abraham (R-MI), among others. The two Senators voting against the bill were Edward Kennedy (D-MA) and Russ Feingold (D-WI). Senate leadership originally hoped to bring the bill to the Senate floor for a vote the week of April 10, but postponed that schedule when time constraints prohibited quick consideration before the Easter recess. However, Majority Leader Trent Lott (R-MI), has stated it will be scheduled as soon as possible after the Senate reconvenes on April 25.

During debate, the Committee adopted two amendments to the base bill: a Feinsten/Abraham provision that would redirect H-1B fees to K-12 education and National Science Foundation-run low-income college scholarship programs; and one offered by Joseph Biden (D-DE) that would address the so-called "digital divide" by providing funds to install computers and hire computer trainers at Boys and Girls Clubs nationwide. Both of these amendments, and the debate they generated, suggest the importance of education and training of U.S. workers and the need to retool our education system.

The Committee also defeated (by a 10-8 vote) a substitute amendment offered by Senator Kennedy. The substitute, which the Senator may introduce as a stand-alone bill, would:

Business advocates should continue to contact their Senators and urge their support for S. 2045 when it comes to the floor for a vote.

On April 11, the House passed H.R. 3767, the Visa Waiver Permanent Program Act, introduced in early March by Representatives Smith and Sheila Jackson-Lee (D-TX). H.R. 3767, which travel and tourism groups strongly support, makes permanent the Visa Waiver Pilot Program enacted in 1986. The Visa Waiver Program allows nationals of designated countries to apply to enter the United States as temporary visitors for business or pleasure for up to 90 days without first obtaining a visa from a consular office. Under this program, which Congress several times has routinely extended, the Attorney General designates countries to participate based on their reciprocal treatment to U.S. citizens, low denial rate at consulates for visitors visas, and low "overstay" rate in the United States for their nationals. The Visa Waiver Program hosts about 17 million visitors each year, according to the INS.

In addition to making the program permanent, H.R. 3767 requires the Attorney General develop an automated system to track the entries and departures of visa waiver program participants at airports and sea ports, and places increased restrictions on the ability of the Attorney General to parole inadmissible visa waiver applicants into the country, absent "compelling reasons in the public interest or compelling health considerations."

The Senate Judiciary Committee, by voice vote on April 13, passed its version of the visa waiver bill, S. 2367. That measure, sponsored by Senator Spencer Abraham (R-MI), Chairman of the Immigration Subcommittee, does not contain the provisions of the House bill relating to entry-exit tracking, parole restrictions, or rescission of a country's visa waiver status. The Senate bill is expected to go to the floor in late April or May.

Fed up with continuing reports of growing backlogs and delays at the INS, several Members of Congress are looking at legislative solutions. Senator Dianne Feinstein (D-CA) has announced that she shortly will introduce a bill to address the huge backlogs plaguing the INS. The bill would authorize appropriations for INS backlog reduction, set mandatory minimum processing times for immigration benefit applications, and require INS to report regularly on its progress toward eliminating the backlogs. In the House, Representative John Conyers (D-MI) also is considering legislation to address the backlogs, as is Representative Zoe Lofgren (D-CA). Along with several colleagues from California, Representative Lofgren held a February hearing in San Jose at which a dozen witnesses chronicled their frustrations and difficulties dealing with delays and backlogs at the INS offices in that state.

Senator Feinstein's bill, and the interest shown by the other Members of Congress, will send an important message to the INS that immigration customers no longer will tolerate tremendous backlogs that hurt millions of people seeking to become U.S. citizens, fleeing political persecution, trying to reunite with their families, and businesses seeking to employ foreign workers who are needed for our continued economic growth. This measure is an important first step in getting the INS to provide quick, effective and fair adjudication for the millions of people whose applications have languished in the bureaucracy.

While the bill sends the signal that money is the major problem, it does not actually appropriate needed funds. For the past few years, Congress has provided directly appropriated funds to INS enforcement, while the adjudications branch has been subsisting on user fees – the funds that people and businesses pay when they file applications. At the same time, Congress has imposed numerous unfunded and conflicting mandates on the INS for which the agency has paid from the only pot of money they have access to: the fees paid by applicants for immigration benefits.

Employers frustrated with the long delays and backlogs at the INS should continue to make their concerns heard to their Senators and Representatives and urge them to support constructive measures to reduce processing times and backlogs, and to appropriate funds to support the important mission of servicing INS customers.

As reported in previous issues of Connect!, this year's elections, the growing importance of immigrant voters, and the booming economy have contributed to an increasingly favorable political climate for immigrants and immigration issues. While opponents of immigration still abound and wield significant power in Congress, the confluence of factors already has resulted in organized labor's shift in policy toward immigrants and open discussions of such issues as legalization for undocumented workers.

As illustrated in the recent House Immigration Subcommittee hearing on H-1Bs, there is a growing desire to broaden the Congressional immigration legislative agenda this year to include a number of immigration issues that have the support of family-based, religious and ethnic groups. While not trying to derail the H-1B bills, many in Congress are hoping that there will be room on this train for such issues including equity of relief for people from Central America, restoring Section 245(i), and legalizing currently undocumented workers. The business community has responded with caution, not wanting to disrupt the sometimes-fragile bipartisan alliance supporting their H-1B bill, but also acknowledging that addressing these issues could generate additional support for final passage of the H-1B bill. Some business organizations, especially those in the service sector, actively support these measures, arguing that they will both benefit many of their employees and help address the growing problems of shortages and a largely undocumented workforce.

Whether or not there ultimately will be room on this or other legislation for these provisions remains to be seen. However, what is certain is that these issues, and other pro-immigration agendas, are likely to continue to force their way into the public debate. Furthermore, the resolution of many of these issues benefit business. For example, harsh provisions from the 1996 immigration laws have led to the deportation of many long-term permanent residents, including valuable employees, for minor offenses for which they long ago paid their dues. The elimination of Section 245(i) has meant that many employees, for whom well-meaning employers have filed for green cards, will be unable to acquire that status because there is no longer any flexibility in the law. Providing equity of relief to Central Americans and the ability to legalize status for current undocumented workers will mean a more stable workforce in those industries increasingly suffering from shortages and fraudulent documents.

These issues are of concern to business immigration advocates who are urged to add their voices to those of the immigration communities who are advocating with Congress for change.

In October 1999, INS informed Congress that it may have issued as many as 20,000 too many H-1B visas in the previous fiscal year. Following this announcement, the agency contracted with KMPG to conduct an audit of its counting process and computer systems to determine the extent of the overissuance, and to make recommendations on ways to improve future counts. On April 6, the INS made public the results of the audit. Based on its investigations and a sampling of actual cases, KPMG reported that the INS issued between 21,888 and 23,285 petitions above last year's 115,000 cap.

Congressional critics of the INS have used this report as an excuse to point out the agency's ineptitude. Others have emphasized that the audit did not take into account errors in the methods INS used to determine which cases were to be counted toward the cap. In fact, the KPMG report discusses several areas in which the agency's current counting methodology is flawed, including inadequate methods for eliminating multiple petitions filed on behalf of the same beneficiary and for rescinding approved petitions that are never used. Employer groups have stated that the overissuance indicates the "desperate need to increase the number of temporary visas for skilled professionals."

For More Information...Connect! is published monthly by the American Immigration Lawyers Association and distributed to you as a service by its member attorneys. For more information about the stories in this newsletter, or how to get involved in advocacy on these and other issues, please contact your immigration attorney.