H-1B Emergency Update

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Last fall, we published a new law emergency update on our web page that chronicled day to day developments with the implentation of the 1996 immigration law and the sunset of Section 245i of the Immigration and Nationality Act. The latest immigration law crisis involves the H-1B visa category for professional workers. This page is intended to keep our readers up to date with developments and inform them on how they can participate in the lawmaking process.

June 8, 1998 - 12:07 pm Central US Time

The American Immigration Lawyers Association is reporting to its members that the House floor vote on the H-1B bill has not yet been scheduled and that it appears to be stalled over the layoff and recruitment attestation provisions that are not a part of the Senate version of the bill. This extra time should be seen as an opportunity to contact Congressmen you have considered calling, faxing, or e-mailing but have not. AILA is asking the public to urge Congressmen to support a pro-business bill. When contacting your member of the House, emphasize the following points:

Congress is hearing from those who are against raising the cap and if they do not hear from enough people supporting a raise, then don't count on it passing. If you would like to call your Congressman or Congresswoman, they can be reached at 1-800-504-0031 or 202-224-3121. You can also get more information on who is your representative at the C-Span web site at http://congress.nw.dc.us/c-span/search.html.

June 6, 1998 - 12:12 pm Central US Time

There has been no legislative news to report in the last week. The House did not take up the H-1B bill for debate on the floor as earlier expected though hopefully that will happen this coming week.

With respect to the implementation of the H-1B cap at the Immigration and Naturalization Service, members of the American Immigration Lawyers Association had a teleconference with the INS to discuss the issue. The INS reports that its four Service Centers are holding in abeyance H-1B applications that were already received when the cap was reached early last month. The agency is waiting until a decision is made by Congress on raising the limit. Petitions received after the cap was reached have been rejected by INS unless an October 1, 1998 or late start date for the position is specified (see discussion on this below).

AILA asked the INS to consider a proposal that aliens in the US during a grace period and whose grace period expires on or after October 1, 1998 be considered "in status" for purposes of filing a change of status application filed with an October 1, 1998 start date. The INS said it will research the issue and decide on it before AILA and the INS meet again. The INS has also not made decisions on how it will treat applications to change to another nonimmigrant category such as a B-2 visitor visa for individuals whose status will expire prior to October 1st.

May 29, 1998 - 4:35 pm Central US Time

Representatives of the American Immigration Lawyers Association met yesterday with staff from the INS headquarters and addressed a number of H-1B related issues. AILA informed the INS that all four INS Service Centers have been rejecting properly filed H-1B applications that were either not subject to the visa cap or that asked for an October 1st start date. INS blamed the problem on contract workers and said they will work to fix the problem. In the mean time, immigration lawyers are urged to take steps to highlight the fact that the cap does not apply or an October 1 start date is requested (such as using a highlighter pen in the relevant sections of the petition form or using a colored pen in the margins of the lawyer's G-28 form to draw attention to this issue).

The INS has not issued policy decisions on how it intends to treat cases where a person's nonimmigrant visa status expires before October 1st. It seems clear that for a person who stays in the US until October 1stthe three and ten year bars will not apply to persons who have "duration of status" I-94s (such as F-1 and J-1 students) and for others with an expiration date on their I-94 there is a 120 day grace period. However, the person would have to pick their visa up at a US Consulate abroad since the change of status part of the application will be denied (though the H-1B would be approved for issuance by a consulate). This will only affect people who have I-94s that expire before October 1st and not F-1 students and others with duration of status I-94s who should have their change of status applications approved. Hopefully, a forthcoming INS memo will provide further clarification.

AILA also pressed the INS to explain how it would implement a raising of the visa cap by Congress. AILA has proposed a streamlined process to obtain amended approval notices reflecting earlier start dates. The INS says its working on an answer.

May 28, 1998 - 10:01 pm Central US Time

A number of readers have asked us to provide links to the H-1B bills in the Senate and House. For those interested, the House's H.R. 3736 can be found in a text or pdf version. S. 1723 in the Senate is also available in a text and pdf format. The legislative history providing considerable background on the Senate bill is also available in a text and pdf format.

May 27, 1998 - 2:23 pm Central US Time

There has been little activity on the H-1B front to report over the last week. Congress is currently recessed for the Memorial Day holiday and will not be back in session until Monday. During this recess, we are urging our readers to contact their House Representatives to let them know that the bill passed by the Judiciary Committee is too extreme and should not go the House floor as passed.Arguments that you may want to emphasize are American employers' immediate need for H-1B numbers, business' support for US worker re-training and and education and the fact that the attestation requirements in the current bill will inevitably kill the entire H-1B program. If you would like to contact your Congressman and need to know how, go to the C-Span web site at http://congress.nw.dc.us/c-span/search.html.

May 20, 1998 - 8:07 pm Central US Time

The House Judiciary Committee passed Lamar Smith's H-1B bill. The bill was opposed by many business immigration advocates because of highly onerous layoff and recruitment attestation requirements that would be imposed if the law came in to force. The American Immigration Lawyers Association stated that the bill would render the H-1B program "unusable" for many employers.

Given the overwhelming defeat of the attestation requirements in Monday's Senate vote, observers were surprised by how widely the requirements were accepted in the Judiciary Committee. An amendment introduced by California Republican James Rogan to strip out the attestation requirements was defeated by a margin of 24 to 7. Aside from Rogan, the other Republicans who supported the amendment were Representatives Bryant (R-TN), Canady (R-FL), Cannon (R-UT), Chabot (R-OH), Goodlatte (R-VA) and Inglis (R-SC). Many believe that Chairman Henry Hyde's last minute opposition to the amendment swayed many of the committees members to vote against the bill.

A number of amendments were approved, however. AILA reports that they included the following:

The other provisions of the bill including the raising of the cap by 30,000 for this year, 40,000 next year and 50,000 the following year were left alone. The bill is now expected to go the entire House in the first week in June. Attempts will no doubt be made to amend the bill on the House floor to remove the attestation sections and some of the other provisions added today. After the bill passes the House floor, it will be conferenced with the Senate bill and a compromise bill will be hammered out for another vote.

May 19, 1998 - 1:46 pm Central US Time

According to the American Immigration Lawyers Association, the House Judiciary Committee will mark-up H.R. 3736 on Wednesday, May 20th. AILA opposes H.R. 3736 because of what it calls "onerous layoff and recruitment attestations." Representative Rogan (R- CA), a member of the Judiciary Committee, will be introducing an amendment in committee on Wednesday to delete the attestations from the bill (these are the same type of attestations that Senator Kennedy tried unsuccessfully to put in the Senate version of the bill yesterday). AILA is asking its members and the public call your Congressional representavives to urge them to support an increase in the H-1B cap and support the Rogan Amendment so that the bill does not include these attestations. Further, if these provisions are not removed form the bill, AILA urges people to call their Representatives to oppose the bill and work to develop an Abraham companion in the House. AILA is especially interested in getting people to call if their Representative is a member of the Judiciary Committee. Republican Judiciary Committee members, other than Lamar Smith (R-TX), the subcommittee chair, are: Henry Hyde (IL), James Sensenbrenner (WI), McCollum (FL), Gekas (PA), Coble (NC), Gallegly (CA), Canady (FL), Inglis (SC), Goddlatte (VA), Buyer (IN), Bryant (TN), Chabot (OH), Barr (GA), Jenkins (TN), Hutchinson (AR), Pease (IN), Cannon (UT), Graham (SC). Democratic members of the Judiciary Committee are: Conyers (MI), Frank (MA), Schumer (NY), Berman (CA), Boucher (VA), Nadler (NY), Scott (VA), Watt (NC), Lofgren (CA), Jackson-Lee (TX), Waters (CA), Meehan (MA), Delahunt (MA), Wexler (FL), and Rothman (NJ). Representatives can be contacted by calling 1-800-504-0031 or 202-224- 3121.

May 18, 1998 - 8:23 pm

A few moments ago, the Senate passed by a margin of 78 to 20 S. 1723 which would lift the cap on H-1B workers. One last attempt to amend the bill by Senator Dale Bumpers was defeated by a margin of 74 to 24 before the final vote. The bill would raise the H-1B cap for three years starting at a hike to 95,000 for this year. The bill would also allow Indian and Chinese employment based green card applicants to borrow numbers from other countries so those categories can become current. House action on the bill is expected later this week. The key question that remains is whether the House Judiciary Committee will strip out many of the recruiting provisions that are now in that chamber's version of the bill. If not, there could be a serious battle when the two houses must agree on a compromise bill.

May 18, 1998 - 5:37 pm

Minutes ago, the Senate has voted largely on party lines 59 to 37 to table the second amendment introduced by Senator Kennedy that would impose many of the same recruiting requirements on the H-1B visa process contained in the Smith Bill. The amendments, like the ones passed a few minutes before, were opposed by the American Immigration Lawyers Association.

May 18, 1998 - 5:25 pm

Minutes ago, the Senate has voted largely on party lines 60 to 38 to table the first amendment introduced by Senator Kennedy that would impose many of the same recruiting requirements on the H-1B visa process contained in the Smith Bill. The amendments call for a much tougher H-1B visa process. This is good news for people seeking a clean raising of the H-1B cap.

May 15, 1998 - 12:50 pm

The Senate was supposed to vote on Senator Abraham's H-1B cap bill this week, but the vote has now been put off until Monday. The American Immigration Lawyers Association is urging everyone to call Majority Leader Trent Lott's office (202-224-3135) today or tomorrow urging that S. 1723 be brought to the floor on Monday. The Smith bill in the House (definitely the more problematic of the two) is scheduled for markup next Tuesday or Wednesday.

May 11, 1998 - 11:10 pm

The Senate is expected to vote tomorrow on Senator Abraham's bill to raise the H-1B cap. Senators Feinstein and Kennedy are expected to propose amendments on amendments and layoff attestations. According to the American Immigration Lawyers Association, other amendments may include increased DOL enforcement, changing the length of stay from six to three years, and changing the increase in the H-1B cap from five years (in the Abraham bill) to three years.

The House of Representatives Judiciary Committee is expected to begin marking up Congressman Smith's HR 3736. The bill is much more restrictive than the Abraham bill (see the summary below) and is being opposed by AILA. Readers are urged to contact their Congressmen, particularly those that serve on the Judiciary Committee to let them know that the restrictive provisions in the Smith Bill would render the H-1B visa useless and make it tought for American companies to compete globally.

May 11, 1998 - 8:09 am

The following notice was published today by the INS in the Federal Register regarding procedures for implementing the H-1B cap:

[Federal Register: May 11, 1998 (Volume 63, Number 90)]
[Notices]
[Page 25870-25871]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr11my98-97]

=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service
[INS 1926-98]


Fiscal Year 1998 Numerical Limitation Reached for H-1B
Nonimmigrants

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Notice.

-----------------------------------------------------------------------

SUMMARY: The Immigration Act of 1990 (IMMACT), provided that beginning
with fiscal year 1992, the total number of aliens who may be issued
visas under the H-1B category during any fiscal year could not exceed
65,000. Based on all available data, the 65,000 limit has been reached
for fiscal year 1998. This notice describes the procedures the Service
will use for processing H-1B petitions for new or initial employment in
the remainder of fiscal year 1998.

DATES: This notice is effective May 11, 1998.

FOR FURTHER INFORMATION CONTACT: John W. Brown, Adjudications Officer,
Adjudications Division, Immigration and Naturalization Service, 425 I
Street, NW., Room 3214, Washington, DC 20536, telephone (202) 514-3240.

SUPPLEMENTARY INFORMATION:

Background

    Section 205 of the Immigration Act of 1990 (IMMACT), Public Law
101-649, dated November 29, 1990, imposed a 65,000 numerical limitation
beginning in fiscal year 1992 on the number of aliens who could be
accorded H-1B nonimmigrant status in a fiscal year.
    The regulation at 8 CFR 214.2(h)(8)(ii)(E) provides that ``If the
total numbers available in a fiscal year are used, new petitions and
the accompanying fee shall be rejected and returned with a notice that
numbers are unavailable for the particular nonimmigrant classification
until the beginning of the next fiscal year.''

Which H-1B Petitions Will Be Affected by This Notice?

    H-1B petitions filed for new or initial employment for the
remainder of fiscal year 1998 will be affected by this notice as well
as petitions pending with the Service on the date of this notice.

[[Page 25871]]

Which H-1B Petitions Will Not Be Affected by This Notice?

    Petitions filed for sequential H-1B employment, concurrent H-1B
employment, extension of H-1B stay, and amended H-1B petitions are not
affected by this notice.
    Sequential employment is where an alien assumes one H-1B position
after another. For example, an H-1B chemist completes his or her
assignment with ``Company A'' and then assumes a new position the very
next day as an H-1B chemist with ``Company B''.
    Concurrent employment is where an alien holds two H-1B positions at
the same time. For example, an H-1B computer system analyst works for
``Company A'' full-time during the week and works for ``Company B''
part-time on the weekends.
    An extension of stay is where the alien's current employer submits
a petition to extend the alien's temporary stay.
    An amended petition is where there has been a change in the
conditions of the alien's employment, but the alien remains employed by
the same petitioner.

How Will H-1B Petitions Submitted For New or Initial Employment for
Fiscal Year 1998 be Processed?

    Based on 8 CFR 214.2(h)(8)(ii)(E), the Service will return, with
fee, any H-1B petition filed with the Service on or after the date of
this notice for new or initial employment in fiscal year 1998. The
petitioner will be advised in a notice to either resubmit the petition
when numbers are available on October 1, 1998, or to resubmit the
petition and request employment commencing on or after October 1, 1998.
    In the case of those petitions pending with the Service on the date
of this notice, the Service will contact the petitioner or the attorney
of record and advise him or her that the 65,000 limit has been reached.
The petitioner will then be given the option of either withdrawing the
petition or requesting that the Service change the date of the
beneficiary's intended employment to on or after October 1, 1998, the
beginning of fiscal year 1999, when H-1B numbers will again become
available.

How Will H-1B Petitions Submitted For New or Initial Employment
Beginning in Fiscal Year 1999 be Processed?

    H-1B petitions filed for employment commencing on or after October
1, 1998, which is the beginning of fiscal year 1999, are not affected
by the procedures described in this notice and those petitions will be
adjudicated when received by the Service.

What Will Happen if the Numerical Limitation is Raised by Congress?

    The Congress is currently considering whether to raise the
numerical limit for fiscal year 1998. The procedures described in this
notice will be modified if the limit is raised through legislation
enacted by the Congress and signed by the President.

    Dated: May 6, 1998.
Doris Meissner,
Commissioner, Immigration and Naturalization Service.
[FR Doc. 98-12448 Filed 5-8-98; 8:45 am]
BILLING CODE 4410-10-M

May 9, 1998 - 1:06 am

The American Immigration Lawyers Association reports today that all remaining H-1B visa numbers will be used up by Monday the 11th. The INS has stated that it will publish a notice on its policies regarding the H-1B cap in the May 11th Federal Register. The guidelines will be consistent with what was has already been described on this page.

AILA is urging its members to take special measures to ensure that cases are not improperly counted toward the cap. It recommends using a yellow highlighter pen over the Basis for Classification in Part 2 of the I-129 (items 2(b),(c) or (d) or writing in the margin with red ink.

In H-1B legislative news, the Senate bill is now expected to be voted on by the whole Senate next week, possibly as early as Tuesday. A few changes to the Senate bill are now in the works. Senator Edward Kennedy (D-MA) is pushing for a $250 H-1B application fee to support worker re-training. Bill sponsor Senator Abraham is said to be working with Kennedy to craft an amendment to the bill.

In the House, the Judiciary Committee markup will hopefully occur on May 13th.

May 7, 1998 - 6:15 pm

The American Immigration Lawyer's Association has issued a press release criticizing provisions in the House H-1B bill.

 

May 7, 1998 - 5:52 pm

- Reaching of H-1B cap

Under the Immigration Act of 1990, Congress has limited the number of H-1B visas which may be awarded in a single fiscal year to 65,000. As of May 4th, the INS reportedly stopped issuing visas in order to make an accurate count of petitions to apply to the cap. The INS believes that the reaching of the cap is imminent and we are told that there are just a small number of H-1Bs still remaining. There has been some confusion regarding the reaching of the cap. Some people have reported that the halting of the issuance of visas meant that the cap had been reached. In fact, no official announcement of the reaching of the cap has come. However, it is best to plan now since it is obvious there are only days (or hours left) before the cap is reached.

What does this really mean? First, the INS has indicated that all applications pending as of the date the cap is reached will be approved with a start date of October 1, 1998. The INS will continue accepting H-1B petitions after that date, but only if the petitioner indicates that it wants a start date of October 1st. Those applications listing a start date prior to October 1st will be rejected and returned to the petitioner without prejudice. This means that one can simply resubmit the petition with a request for an October 1, 1998 start date without a problem. It is therefore very important to prominently mark the package stating that the October 1st date should apply and to again prominently state this in the cover letter.

Second, the cap only applies to those who seek to file a new H-1B visa, not person who are filing applications for a change of H-1B petitioners or who are seeking visa extensions.

For those caught in the middle of this, one question which is bound to come up is whether the new three and ten year bars to entering the US apply to cases where a person is waiting for a visa but the person’s first visa expires. The bars apply to persons out of status in the US for at least 180 days who seek to reenter the US. According to Section 212(a)(9), in the case of an alien who has been lawfully admitted or paroled into the United States and has filed a nonfrivolous application for a change or extension of status before their authorized stay expires and who has not been employed without authorization in the United States before or during the pendency of such application, the calculation of the period of time applying to the bar shall be tolled. However, the clock will be again if no decision has been reached on the case after 120 days. The INS has already indicated that F or J visa holders with duration of status ("D/S") I-94s will not be affected by the 3 and 10 year bars. But for others, it is important to not illegally work during the waiting period. And if your application was already pending for a while for some other reason (for example, a request for additional evidence was sent), then the 120 day tolling may run out sooner and the 180 day clock could be a big problem.

- Congress may act

The reaching of the H-1B cap so early has, fortunately, caught the attention of Congress and there is a strong likelihood that more H-1B visas will soon be made available for this fiscal year. Unfortunately, there may be amendments to the H-1B program that will make the visas far more difficult to obtain.

In the US Senate, Immigration Subcommittee Chairman Spencer Abraham has introduced S.1723 and House Immigration Subcommittee Chairman Lamar Smith has introduced HR 3736 in his chamber.

The Senate bill has passed the Judiciary Committee and is now ready to go the Senate floor. The bill includes the following major provisions:

Congressman Smith’s bill has passed his committee and is now with the House Judiciary Committee. The bill was supposed to be marked up earlier this week, but has not yet seen any action. Congressman Smith’s prediction that the bill would be passed by the end of April has Except for the lifting of the H-1B cap itself, the Smith bill in the House is much harsher on H-1B employers and employees. It includes the following:

The Clinton Administration is said to favor a third approach that is even more restrictive than Lamar Smith’s bill. Siskind, Susser & Haas has obtained a draft of the Administration’s bill and the following are highlights (or lowlights depending on your perspective):

The next major step in the legislative process is the markup of the Smith bill in the House Judiciary Committee. That was supposed to happen this week, but as of yet there is no news. Both the Senate and House versions of the bill will need to be passed on the floor and further amendments could be introduced at that time. Then a conference committee with members from both Houses will meet to hammer out a compromise bill and the bill must then be voted on again by each chamber. If all this happens, then the President has to sign the bill. Fortunately, the urgency of the situation now that the H-1B cap has been reached will likely mean that we should know a lot more in the coming days.

On the political side of the equation, the Administration has issued figures that it claims shows that companies applying for the most visas are using them for the kind of jobs that Americans could easily perform or be trained to perform. The report claims that for the 10 firms that used the most H-1B visas last year, all provide contract labor for jobs not requiring college math and science degrees. Critics of raising the H-1B cap are pointing to the report as evidence that foreign workers are not needed for many of the jobs being filled by H-1B workers.

On the other side, Andrew Grove, CEO of Intel, called on the government to relax H-1B rules in order to address the looming Year 2000 computer bug crisis. With only a year and a half left until potential doomsday, Congress should not be standing in the way of recruiting vital programmer labor.