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Status of H-1B Visa and Related Legislation

Principal Legislation

There are the two main vehicles, one in the Senate and one in the House, for amending statutes that govern the professional guest worker (H-1B) visa program:

American Competitiveness in the 21st Century Act (S 2045)
Sponsor: Orrin Hatch (R-UT), Chairman, Judiciary Committee
Latest Action: amended and approved by Judiciary Committee on 3/9/00 (SRpt 106-260)
Provisions:
• would raise caps on H-1B visas to 195,000 per year for three years;
• would exempt from the cap visas granted to foreign workers who either a) are to be employed by institutions of higher education, related non-profit entities, or non-profit or governmental research organizations or b) received within the last six months a master's or higher degree from a U.S. institution of higher education;
• would increase the proportion of H-1B petitioner fees allocated to the National Science Foundation and broaden authorized activities to include support for private-public partnerships in K-12 education.

Technology Worker Temporary Relief Act (HR 4227)
Sponsor: Lamar Smith (R-TX), Chairman, Immigration subcommittee
Latest Action: amended and approved by Judiciary Committee 18-11 on 5/17/00 (HRpt 106-692)
Provisions:
• would eliminate caps on H-1B visas for three years for foreign workers with college degrees who are a) paid at least $40,000 a year or b) employed by institutions of higher education;
• would make provisions contingent on issuance of final regulations required by the 1998 H-1B legislation;
• contains several provisions placing new burdens on applicant companies to protect American workers and eliminate fraud in the H-1B visa program.

The following House bill is a complement to the Smith bill and is likely to be appended during floor consideration:

The Training and Education for American Workers Act (HR 4402)
Sponsor: Bill Goodling (R-PA), Chairman, Education and the Workforce Committee
Latest Action: amended and approved by Education and the Workforce Committee 5/10/00 (HRpt 106-642)
Provisions:
• would change the terms under which the Department of Labor distributes its portion of H-1B petitioner fees, authorizing technical skills training demonstration programs and transfer of 25 percent of funds to the Department of Education for a loan forgiveness program for mathematics, science, and reading teachers.

The provisions in the following bill are supported by key players and will likely be offered as a substitute for the Smith bill when it comes to the House floor:

Helping to Improve Technology Education and Achievement Act (HR 3983)
Sponsor: David Dreier (R-CA), Chairman, Rules Committee
Latest Action: introduced 3/15/00; referred to Judiciary, Education and the Workforce, and Science Committees
Provisions:
• would raise caps on H-1B visas to 200,000 per year for three years;
• would reserve from within the cap a) 10,000 visas per year for foreign workers who are to be employed by institutions of higher education, related non-profit entities, or non-profit or governmental research organizations and b) 60,000 visas per year for foreign workers who have obtained a master's or higher degree (or equivalent);
• would raise H-1B petitioner fee from $500 to $1000 and revise their distribution, halving the portion directed to NSF and adding allocations for the Department of Education for a loan forgiveness program for mathematics and science teachers; for DoEd's Upward Bound mathematics and science programs; and for NIST for industry-led regional skills training alliances.

Explanation and Analysis

In the Senate, the industry-supported Hatch bill is the only viable H-1B measure, but it will not come to the floor before September. Squabbling between party leaders concerning the nature and number of amendments Democrats will be allowed to offer and the priority given to appropriations bills are currently holding up the process.

The picture is more complicated in the House, as the committee of jurisdiction produced a bill — the Smith bill — that is distasteful to industry and to the leadership of both parties. The latter are trying to figure out how to bring the bill to the floor and somehow have it end up looking more like the industry-backed Dreier bill. Despite the fact that it would eliminate the H-1B cap, industry opposes the Smith bill because it contains restrictions that would reduce the impact. For instance, foreign workers would no longer be allowed to substitute work experience for a college degree in meeting eligibility requirements; companies would be required to demonstrate that they are not replacing American workers; and implementation would be contingent on the Immigration and Naturalization Service issuing final regulations that were required under the 1998 H-1B law (industry opposes the current INS draft of those regulations).

Moreover, proceedings in both chambers are complicated by legislators, mostly Democrats, who want to use the bill as an opportunity for enacting other, non-H-1B-related changes in U.S. immigration policy. The Administration, for instance, is pushing for inclusion of controversial measures concerning immigrants from Central America and the rules under which illegal immigrants can apply for amnesty, an unpopular proposal among Republicans.

To some extent, Congress and the Administration have been sold on the idea that the H-1B caps need to be lifted. The Administration's position on raising the H-1B caps is somewhere between the Smith and Dreier proposals, though closer to the latter. The policy debate centers around ensuing issues, namely terms of eligibility of foreign workers and safeguards against fraud and for protection of American workers. Of ancillary status in the debate but of interest to the computing research community is a third issue, distribution and use of H-1B petitioner fees.

Nevertheless, opposition by the major anti-immigration groups, led by the Federation for American Immigration Reform, continues and will become more strident as the November elections approach. Many reluctantly support the Smith bill because of its inclusion of provisions to safeguard American workers, but they would prefer no bill at all. Recently the Immigration Reform Coalition added a new wrinkle to the debate by suggesting that if Congress is to raise the number of foreign workers entering the U.S. it ought to do so by raising the cap on permanent visas for workers eligible for citizenship (green cards), rather than guest worker visas. Industry lobbyists think the argument is a red herring designed to kill H-1B legislation: while raising the cap on H-1B visas is controversial with the American electorate, raising green card quotas would be far more so.

Both of the industry-backed bills, Hatch and Dreier, include provisions to amend the distribution and use of H-1B petitioner fees, as including education and training initiatives gives legislators voting for H-1B legislation some political cover. Under the 1998 law, more than a third of the proceeds are distributed to NSF, for use mostly on scholarships for mathematics, computer science, and engineering students. The provisions in the Hatch bill, reflecting an amendment offered successfully in Committee by Dianne Feinstein (D-CA), would raise the NSF's allocation to more than half and authorize that some of it be used for private-public partnerships in K-12 education. The Goodling and Dreier bills would also redirect proceeds away from training programs at the Department of Labor and into K-12 education, though at the Department of Education. The Goodling bill would have no affect on the NSF's allocation; under the Dreier bill, while the NSF's proportion of the proceeds would be cut in half, total proceeds would be doubled. The Administration favors the current allocation scheme, prefering that petitioner fees continue to be spent on worker training and scholarships and not redirected into K-12 education.

While slow and subject to delay, the process to enact H-1B legislation is still expected to move forward after the August recess. Many details associated with the various provisions will have to be worked out and there's no predicting at this point how trade-offs are likely to be made. Moreover, the issue is a volatile one, as are nearly all proposed changes in U.S. immigration policy, and compromises can unravel at a moment's notice. The sooner the bills move, the less time the opposition has to mobilize its constituency in advance of the November elections.

prepared by Lisa Thompson, CRA Director of Government Affairs

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