The House of Representatives, on September 24, voted in support of H.R. 3736, compromise legislation that would increase the number of H-1B workers. The vote was 288-133.
President Clinton stated that the bill "institutes new reforms to ensure that employers do not replace U.S. workers with temporary foreign workers and requires employers to recruit U.S. workers."
On the other side of the political aisle, Representative David Drier (R-CA) said that "the fundamental concept behind this bill is that skilled people create jobs, they don't take up jobs."
Even the labor unions which initially had opposed the legislation, did not oppose the compromise bill.
Preliminary Observations
A few preliminary observations: (1) Per country quotas are not relaxed for Indian and Chinese H-1B workers seeking permanent residence; (2) This is no provision in the bill which would allow for extensions beyond six years for H-1B workers in the middle of the lengthy process of applying for permanent residence; and (3) The proposed 7,500 numerical cap for healthcare workers was eliminated from the compromise bill.
Summary of the Bill
The following summary was prepared by the American Immigration Lawyers Association:
1. Increased Access to Skilled Personnel for U.S. Companies and Universities: H-1B temporary visas will be increased from the current cap of 65,000 annually to 115,000 visas in FY 99, 115,000 in FY 2000, and 107,500 in FY 2001. H-1B numbers go back to current law of 65,000 annually in FY 2002.
2. Training and Education for American Workers and Students: H.R. 3736 provides 10,000 scholarships a year for low-income students in math, engineering, and computer science through the National Science Foundation and training for many thousands of Americans through the Job Training Partnership Act. These scholarships and training programs are funded by a $500 fee per visa petition, and a $500 fee for the initial renewal of the visas. These fees are expected to raise approximately $75 million a year to fund the scholarships and training in the bill. The money is split 65% for training, 30% for scholarships, and 5% to be divided between administration and enforcement of H-1B visa program.
3. Layoff Protection for American Workers: H.R. 3736 provides three types of layoff protection for American workers. 1) A company that is H-1B dependent (see below) must attest that it will not layoff an American employee in the same job 90 days before or after the filing of a petition for an H-1B professional. 2) An H-1B dependent company acting as a contractor must attest that it similarly will not place an H-1B professional in another company to fill the same job held by a laid off American 90 days before or after the date of placement. 3) If a U.S. employer commits a willful violation and underpays an individual on an H-1B visa and replaces an American worker, that employer will be hit with a three-year debarment from all employment immigration programs and be slapped with a $35,000 fine per violation. This third provision applies to all employers, regardless of their level of H-1B usage.
4. Recruitment Requirements on Dependent Employers: H-1B dependent companies must attest they recruit according to industry-wide standards. Moreover, they must attest that the H-1B nonimmigrant was as, or more, qualified than any American job applicant. An American not hired can file a complaint with an arbitration panel, which can fine employers found to violate this provision.
5. H-1B Dependent Companies: An employer is defined as H-1B dependent in the legislation and subject to the new recruitment and layoff attestations if its workforce consists of 15% or more H-1B visa holders. H.R. 3736 includes a provision to help smaller employers and start-ups by defining as "non-dependent" an employer with 25 employees that has no more than seven H-1Bs and an employer with 26 to 50 employees that has no more than twelve H-1Bs. Employers who are found to have committed willful violations in the prior five years will be subject to these new attestations.
6. Increased Enforcement & Penalties: H.R. 3736 increases by five-fold, to $5,000, fines for willful violators of the H-1B program, and doubles the debarment period for such violation from one to two years. It gives the Department of Labor authority to initiate "spot" investigations, without a complaint filed, on those companies found to have committed prior willful violations for a period of five years. DOL also will have the authority to investigate suspected willful and serious violations of H-1B visas if it receives specific and credible evidence of such violations and receives the personal sign-off of the Secretary of Labor.
7. Administration of H-1B Visas: H.R. 3736 requires employers to offer benefits and the opportunity to earn bonuses to H-1B employees who are similarly-employed to U.S. workers if such benefits or the opportunity to earn bonuses are available to the company's U.S. employees. The bill provides for sanctions for violations of new whistleblower protections and contains provisions against unconscionable contracts. The division of labor between INS and DOL for processing the Labor Condition Applications (LCAs) will remain as in current law.
What Happens Now?
H.R. 3736 next moves to the Senate where Senator Abraham (R-MI) has indicated he will swiftly move the bill to the floor for a vote. The chances are very good that the Senate will pass the bill which then will be sent to the President for his signature. With the compromise noted above, the White House has indicated he will sign the bill.
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