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May 2000, Volume 7, Number 5

Congress: H-1B

H-1B. As the American Competitiveness in the 21st Century Act, which would raise the number of H-1B visas from 115,000 a year to 195,000 a year, moved through Congress in April 2000, other changes in immigration and employment law and policy were also proposed.

For example, Vice President Al Gore said in March 2000 that the Clinton administration supported legislation that would move the registry date from 1972 to 1986, so that up to 500,000 foreigners illegally in the US as of 1986 could become legal permanent residents. Gore said that the 1986 registry date "would not only provide humanitarian relief to many long-term migrants, but also reduce or eliminate the need to continue litigating some of the large class-action suits" resulting from IRCA legalization programs.

Suits are pending that allege the INS discouraged from applying for legalization in 1987-88 unauthorized foreigners who were not "continuously present" in the US since January 1, 1982—only "brief, casual and innocent" travel outside the US was permitted. After the legalization program ended, these unauthorized foreigners came forward and said that they did not apply because the INS told them that their trips outside the US made them ineligible. Many of those suing the INS have temporary work permits that are expiring.

The H-1B debated continued. In April 2000, the House Immigration Subcommittee approved a bill (H.R. 4227) offered by chair Lamar Smith (R-TX) that would eliminate the annual cap for three years on the number of H-1B visas that can be issued to foreign professionals wanted by US employers. The bill was attacked by employers because it includes requirements that employers show that they hired more US workers and raised wages before they can receive permission to employ H-1B workers. An alternative House bill, introduced by Reps. David Dreier (R-CA) and Zoe Lofgren (D-CA) would increase the number of H-1B visas available to 200,000 a year for three years with no new conditions on employers.

The annual limit of 115,000 H-1B visas was reached in March 2000, and the INS said that 30,000 employer requests for foreign professionals will not be processed until the new federal fiscal year begins October 1, 2000, when 107,500 H-1B visas are scheduled to be available. The annual ceiling is scheduled to fall to 65,000 in FY02. In an error, the INS issued 21,888 to 23,385 more H-1B visas in FY99 then allowed under the ceiling. The INS estimated that there were 425,000 H-1B workers in the US in April 2000. Their number would rise to 750,000 in 2003 if pending legislation is approved.

The 1998 amendments that raised the annual ceiling from 65,000 to 115,000 also imposed a $500 fee on employers for each application for an H-1B worker. The fund thus created is used to provide education and training grants to US students studying science and engineering. The National Science Foundation is scheduled to release a report on the H-1B program in October 2000.

Only H-1B-dependent employers, those with 15 percent or more H-1B workers, must certify that they did not lay of US workers to hire H-1B workers. Syntel Inc. (Nasdaq: SYNT) is an example of an H-1B-dependent employer, with 44 percent of its work force, or 843 people, foreign nationals on H-1B visas. H-1B visas have generated considerable business for immigration lawyers: The American Immigration Lawyers Association says its membership nearly doubled between 1994 and 2000.

Among those interested in highly skilled immigrant workers, there is a movement to give them green cards instead of temporary visas. Since most H-1B visa holders want to and succeed in becoming US immigrants, the Immigration Reform Coalition urged Congress to issue conditional green cards to foreign professionals. US employers could, under this proposal, "sponsor" H-1B workers for green cards by obtaining a "certification" from the US Department of Labor that US workers are not available, and then the H-1B worker could "adjust" his status from temporary to permanent resident or green-card status after one or two years.

The House Judiciary Committee in April 2000 voted to make permanent the program that permits nationals of 29 countries to visit the US without visas permanent. The visa waiver was begun in 1986, and is now used by 17 million people each year. To be eligible for visa-free travel to the US, countries must permit US citizens to travel to the their countries without visas, have a nonimmigrant visa refusal rate of less than three percent, and promise to fully develop a machine-readable passport by 2006.

The Committee also proposed a new T-visa, available to up to 5,000 foreigners a year who cooperate with law enforcement to prosecute traffickers and who would face persecution or extreme hardship if repatriated. After three years, T-visa holders could apply for green cards.

Michelle Mittelstadt, "Smith introduced broader high-tech visa bill," AP, April 11, 2000.