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A Legislative History of H-1B and Other Immigrant Work Visas

 

 

April 2008

Homeland Security Secretary Michael Chertoff signed off on the new regulation
to extend the Optional Practical Training period from 12 months to 29 months. OPT authorizes foreign students to work in internships before and after graduation. This action amounted to a de-facto expansion of the H-1B visa program because it allows foreign students to work in the U.S. for more than twice as many months until they get an H-1B visa. In air traffic terminology, the foreign students will be put into a holding pattern until they get an H-1B visa.

Chertoff's bureaucratic decree to change immigration policy without a vote in Congress, and without public debate.
 
 

March 2005

The Department of Homeland security admitted that due to an accounting mistake they issued 10,000 more visas than authorized by Congress. Since Congress approved an additional 20,000 to be issued in 2005 in addition to the 65,000 already mandated, this means that at least 95,000 new H-1B visas will handed out in 2005 to foreign job seekers.

The DHS has no authority to hand out more visas than Congress mandates, but that didn't stop them from doing it. After admitting to the mistake they announced that the 10,000 visas would be issued anyway.
 
 

November 2004

The omnibus spending bill passed, and with it an amendment dubbed the "L-1 Visa and H-1B Visa Reform Act of 2004".  International students who earn a Masters or PhD in the U.S. are now eligible to use an H-1B visa that is exempted from the cap. Exemptions of this type have been estimated to be approximately 20,000 per year so effectively the yearly cap was raised from 65,000 to 85,000.

Superficial reforms to the L-1 visa were put in place to limit how contract bodyshops can use L-1 visa holders.

Three senators and one representative were key players behind this legislation. The Senators are Ted Kennedy (D-MA), Saxby Chambliss (R-GA), and Chuck Grassley (R-IA). The House representative was Lamar Smith (R-TX).

 
 

2003

On October 1 the H-1B visa cap reverted from 195,000 per year to 65,000 for the fiscal year of 2004.

On July 31, 2003, the Senate approved the Singapore and Chile Free Trade agreement. The bill got wide bi-partisan support in both the House and Senate. The FTA followed precedents set by NAFTA by containing "embedded visas". The FTA contains a visa called the H-1B1 that has a limit of 6,800 visas per year that are counted against the H-1B visa cap. L-1 visas from Singapore are unlimited.

 
 

November 2002

On Friday, November 2, the President George Bush signed H.R. 2215, the 21st Century Department of Justice Appropriations Authorization Act. Out of 422 House members, 400 of them voted in favor of the Bush proposal, including 206 Republicans and 193 Democrats.

This bill includes a provision that allows H-1B visa holders to extend their stay beyond the statutory six-year period if a labor certification has been pending for at least 365 days.  This "7th Year Extension" allows H-1B visa holders to continue to get extensions until he/she gets a Green Card. They can request extensions on a yearly basis for as long as it takes to get a green card. [25]

Effectively this legislation solidified the dual-intent nature of H-1B by turning it into a de-facto permanent visa.

Another provision in the bill, the Conrad State 20 Program, was expanded from allowing 20 doctors per state to do their residency in the U.S. to 30.

 
 

2001

The INS issued the maximum number of H-1B visas that the 195,000 visa cap allowed.

President Bush visited Mexico February 2001 and proposed a comprehensive guest worker program, the largest since the braceros of 1942-64.[11] U.S. Sen. Phil Gramm met with Vicente Fox of Mexico and said we need quick action for this new nonimmigrant labor bill. Gramm said that this guest worker program could start legalizing millions of undocumented Mexican workers. [12]

 
 

2000

In April 2000 Henry Cisneros, former Secretary of Housing and Urban Development, proposed that unions and immigrant communities support expansion of the H-1B program in order to get amnesty. [20] Pro immigration elements in the union heeded Cisneros' advice and decided to support an increase of the H-1B quota. Even though the AFL-CIO was still holding to an official position that the H-1B program should not be expanded, they didn't campaign against the massive proposed increase to 195,000.[17]  "Democratic Party heavyweights tried to convince the AFL-CIO that by supporting H-1B they could achieve a much more pressing goal, namely amnesty for illegal immigrants". [16]

Union insiders inside the AFL-CIO made a tacit deal with President Clinton. The Faustian bargain was that the unions would remain quiet on the H-1B increase and in return Clinton would get them amnesty. They told Clinton that he could do whatever he wanted with the H-1B bill even though they knew that Clinton wanted to sign the H-1B increase in order to retain election campaign funding from the high-tech industry. The only concession the AFL-CIO won was to get some toothless worker protections added to the bill, but those protections were filled with loopholes.

The AFL-CIO kept their part of the deal but Clinton was never able to deliver them the amnesty that they wanted. 

After intense lobbying by technology firms, Congress voted in October to increase the number of H-1B visas to 195,000. The Senate Oct. 3 approved legislation (S. 2045) by a vote of 96 to 1 raising the statutory cap and the House followed suit later that evening, approving the bill by voice vote. The voice vote occurred after most Members had already left the Hill. The timing of this voice vote was no accident. That evening Al Gore and George W. Bush were in a general election presidential debate. While the public and the media focused on the debate the House silently stabbed American workers in the back. 

After the Senate vote on October 3, 2000 to increase the H-1B quota, the San Francisco Chronicle reported on October 4,

`Once it's clear (the visa bill) is going to get through, everybody signs up so nobody can be in the position of being accused of being against high tech,'' said Sen. Robert Bennett, R-Utah, after the vote. ``There were, in fact, a whole lot of folks against it, but because they are tapping the high-tech community for campaign contributions, they don't want to admit that in public.''

The sequence of events in the House of Representatives was a far worse perversion of democracy.

In the morning of October 3, 2000, the Senate passed its version of the H-1B bill. At that time, two versions existed in the House, by Rep. Lamar Smith and Rep. David Dreier, both Republicans. Industry liked the Dreier bill (which was largely similar to the Senate version) and was adamantly opposed to the Smith bill, as the latter would have imposed various worker protections. The Smith bill, though, had the upper hand in the parliamentary sense, as it already passed through the proper committees.

That afternoon, it was announced in the House that no vote would be taken on the H-1B issue that day, so the congresspeople went home. Yet a vote actually was taken that evening, with only 40 congresspeople present out of a membership of 435. In addition, the vote was on the Senate bill, adopted whole, instead of either the Smith or Dreier versions, thus slickly solving the problem of what to do with the Smith bill. [18]

 

Here is how the incident was reported by the Cox News Service, dateline October 3, 2000:

WASHINGTON - The speed - and stealth - with which the House voted Tuesday to increase visas for skilled foreign workers left one lawmaker shaking his head. ``Incredible,'' said Rep. Lloyd Doggett, D-Texas, a major supporter of increased visas...

Doggett, who had co-sponsored a bill to increase the so-called H-1B visas for foreign workers, gave this account of the evening:

``At about 3:30, it was announced that there would be no further votes'' on important issues in the House, he said. Because many lawmakers wanted to get home early to watch the presidential debates, nearly everyone left, he said. 

``But at about 5:30, an e-mail was sent over here'' announcing that an H-1B debate would begin shortly. ``I didn't see the email until about 6,'' he said. Doggett said he scurried to the House floor, while other major supporters of the legislation also rushed back to Capitol Hill.

Using various procedural moves, the GOP leaders ended the debate quickly and called for a voice vote, even though the House was nearly empty. [5]

Note that Doggett, a Democrat, also advocated increasing the H-1B quota - perhaps because he reportedly accepted campaign donations from H-1Bs.

 
 

1999

The INS approved 21,888 H-1B petitions in excess of the fiscal year 1999 cap. The problem was swept under the rug by passing legislation called "AC 21" which implemented a retroactive increase for 1999 to cover all petitions approved by the INS. KPMG was hired to improve the accounting of this mess. It's not known if the INS was aware that KPMG was a major employer of H-1Bs.

There was a glut of students on F-1 and J-1 visas waiting to convert to H-1Bs. They were working for employers who were using the "practical training" part of those visas to allow these students to hold jobs. Since the cap was reached the students couldn't get H-1B visas. The foreign students were granted automatic extensions so they could keep their jobs until they got H-1B visas. [23]

 
 

1998

Senator Kennedy, in 1998, both in committee and on the Senate floor, proposed amendments to legislation so that companies must first try to fill vacancies with Americans before using H-1B labor, and to forbid companies to hire H-1B labor into positions whose skills were held by Americans who had been laid off in the past six months. On May 18, 1998, both amendments were tabled (killed) on the Senate floor; immediately thereafter, the larger bill was passed to increase the number of H-1B Visas allowed per year. The actions of the U.S. Senate prove that our politicians intended to make it legal to hire H-1B labor into positions for which Americans are available, and that it is legal for companies to lay off their American workforce and replace them with H-1B labor. 

A last-minute tactical move was used to incorporate the H-1B bill into the omnibus spending bill so that it would escape attention by the public. As signed by President Clinton on October 21, 1998, the H-1B legislation increased the number of H-1B visas from 65,000 to 115,000 in 1999 and 2000, then reduced them to 107,500 in 2001 and 65,000 in 2002 and beyond.

Prior to 1998 there was no provisions to restrict US employers from hiring H-1B visa holders until they could proved that no American could fill the job. A provision was added in 1998 that required employers to prove they looked for an American worker first but it had so many loopholes it was a worthless protection. This new provision applied to less than 1 percent of all H-1B employers. [19]

The AFL-CIO opposed the H-1B program since the early 1990s, but its involvement with the issue noticeably declined by 1998. They campaigned against the H-1B increase to 115,000 but in the end, withdrew its opposition. A decision was made within the AFL-CIO that they should not squander their political capital on white-collar workers that were for the most part not unionized and in some cases were hostile to unions.  [16]

 
 

1997

In September 1997, for the first time the annual 65,000 ceiling (called the visa cap) for H-1B workers was reached, halting H-1B admissions for the remainder of the fiscal year and providing the computer industry with new evidence of unmet demand for high-tech workers. They would use this evidence to justify increasing the quota.[4]

The INS used some accounting gimmicks to defer some visas until 1998 so that all of them could be approved without exceeding the visa cap. [23]

 
 

1996

In 1996 the AFL-CIO allied itself with the National Association of Manufacturers (NAM), Americans for Tax Reform, the National Christian Coalition, and civil libertarians to oppose immigration changes. By joining with a coalition of some of the most anti-union organizations in the country, labor leaders succeeded in blocking immigration reform designed primarily to protect the economic well-being of low skilled workers in the nation.  [15] The alliance that the AFL-CIO made with H-1B advocates such as NAM probably have been major factors that led to the unions acceptance of H-1B.
 
 

1994

The North American Free Trade Agreement (NAFTA) became law and with it the TN visa. The TN visa program allows Canadian and Mexican professionals with US job offers to work in the United States.The intending worker should present a packet containing supporting documentation to the NAFTA Officer at the port of entry. A TN visa application may require several hours for review depending on its complexity. NAFTA significantly favors Canadian professionals over Mexican professionals. Mexican professionals must submit to a more intensive application process similar to the H-1B visa application. [8]

There is no limit to the number of Canadians that can enter the United States annually, however, no more than 5, 500 citizens of Mexico can be classified as TN (Trade NAFTA) nonimmigrants each year. This NAFTA provision arguably creates a common labor market between Canada and the US labor forces. [7]

 
 

1993

1993 will become known as the year when he AFL-CIO reversed their stance on immigration.  

At their 1993 convention they adopted a resolution that praised the role that immigrants have played "in building the nation and its democratic ideas."[15] The resolution went even further by demonizing unidentified advocates of immigration reform for launching "a new hate campaign cynically designed to exploit public anxiety by making immigrants and refugees the scapegoats for economic and social problems." It concluded that "immigrants are not the cause of our nation�s problems" and stated that "the AFL-CIO reiterates its long standing commitment to�provide fair opportunities for legal immigration and�due process of law for all people who enter, or attempt to enter, the United States illegally." [14] This resolution set a new precedent for the AFL-CIO that foreign workers might be good for bolstering the unions sagging memberships. 

 
 

1990

President George H.W. Bush's signing of the "Immigration Reform and Control Act of 1990" is often considered the day H-1B was born.

 Under the 1990 Act Visas for employment-based immigrants rose to 140,000 from the 58,000 cap established in 1976. The 1990 Act set an annual cap of 65,000 nonimmigrants entering the U.S. under H-1B visas. H-1B workers were given a 3 year visa with a possible extension for a total of six years. It specified that H-1B workers must hold at least a bachelor�s degree or its equivalent in their specialty field. The Act also required employers to pay H-1B workers the prevailing wage. In addition, the 1990 Act created three other new visa categories for skilled temporary workers--the H-1A visa for nurses and O and P visas for prominent scientists, educators, artists, athletes and entertainers. [4] A cap of 25,000 visas per year was placed on the annual number of newly created "P visas" available for foreign workers in the entertainment industry. [14]

When the H-1B visa was created in 1990, the 1952 requirement that the visa was temporary was removed. H-1B became a dual-intent visa which allowed the foreign worker to remain in the U.S. while applying for permanent residency (green card). Politicians and pundits said that H-1B was temporary their intent to make it a permanent visa was very clear.

 
 

1989

During the AFL-CIO convention a resolution was adopted that said they were opposed to increasing the number of employment based visas. They said it was better to invest in American workers. [21]
 
 

1988

Senators Ted Kennedy (D-Massachusetts) and Alan Simpson (R-Wyoming) co-sponsored legislation that would have led to a modest reduction in family-based immigration while creating additional visas for well-educated, English-speaking immigrants employed in occupations in which the U.S. supposedly suffered from labor shortages. The Kennedy-Simpson bill passed the Senate but never made it through the House.[4]
 
 

1986

The Immigration Reform and Control Act (IRCA) of 1986 changed the name of the H-2 program to the H-2A program, and incorporated many of the regulations used to administer the program into law. This bill allowed Mexicans to move out of agricultural labor in hopes of reducing illegal immigration but that, of course, failed. Despite a detailed law and regulations, there is as much litigation over the H-2A program as all other temporary foreign worker programs combined, with lawyers representing workers suing to discourage the program's use and expansion, and attorneys for farmers suing to make it easier to obtain farm workers through the program. [7] 

The AFL-CIO supported IRCA. The union called for the careful regulation of guest worker programs and wanted visas restricted only for those situations where U.S. workers cannot be found. In 1987 AFL-CIO applauded IRCA as a far-reaching amnesty program. [22]

 
 

1976

1976 was a crucial year in the history of H-1B. The Immigration and Nationality Act Amendments of 1976 increased the total number of visas allocated specifically to employment-based immigrants and their family members from 34,000 to 58,000. 

The Association of American Universities (AAU) succeeded in slipping in a clause into Title 8 of the U.S. Code that removed universities from the uniform labor certification requirements. The universities were given the same privileges that sheep ranchers had with the 'Special Handling' regulation written in the 1952 McCarren-Walter Act. This clause was called the Eilberg Amendment, named after Democratic Rep. Joshua Eilberg. This precursor to H-1B exempted colleges and universities from the standard labor certification requirements. It also declared universities as having perpetual labor shortages.[2]

In 1979 William Safire wrote the scathing article "Big-Shot Crook Goes Free" after Joshua Eilberg pleaded guilty to accepting $100,000 from his law firm and two affiliated firms that were helping a hospital get a federal grant. He was sentenced to five years' probation, entering his plea after he was defeated for re-election in 1978 after representing his Philadelphia district for 12 years. 

 
 

1970

The L visa was created by an Act of the Congress in 1970. The specific objective of this non-immigrant visa was to make it simpler for large international companies to transfer foreign personnel to the US. The L visa was divided into two categories: L-1A and L-1B.
 
 

1961

The J-1 visa was implemented in 1961 by the Fullbright-Hays Act to promote educational and cultural exchange. There is no basic minimum qualification for the J-1 so it is generally regarded as faster and easy to obtain.
 
 

1952

The Immigration and Nationality Act of 1952 established the H-1 program, which allowed the US Attorney General "after consultation with appropriate agencies of the Government" to import needed foreign workers.[7] 

The Alien Contract Act of 1885 law and all it's amendments were repealed.

The McCarren-Walter Act was passed. This law reversed the prohibition against contract laborers into the U.S. and expanded the classes of eligible nonimmigrants that were exempted from the immigration quotas. It authorized the admission of temporary workers during labor shortages. The "Western Range Association" and the "California Woolgrowers Association" lobbied for and got authority from congress to import Basque Sheepherders to alleviate their declared shortage of sheepherders.[3] The sheep ranchers were allowed to recruit foreign herders, exempted by "Special Handling", from the immigration quotas, for three-year contracts.[2] This law set a precedent for the admission of skill-based temporary workers and was later used as a model for H-1B. 

Foreign workers were required to go back to their home countries if they lost their job, or if the visa expired. The H-1 program was mandated to be TEMPORARY.

 
 

1944

Florida sugar cane farmers obtained permission to hire Caribbean workers to cut sugar cane on non-immigrant temporary visas.[1] Both the Bracero and this new visa had a common denominator and that is that the workers� didn't have economic and political bargaining power. This lack of bargaining power arises largely from the foreign workers� status as "non-immigrants" on temporary visas. They are dependent on the employers for their ability to stay in the country and their opportunity to obtain a visa in the following year. 
 
 

1942

Farmers appealed to the US government for Mexican workers to produce "food to win the war."[7] Their argument worked in 1917 and it worked again in 1942. They won when the Bracero program allowed the importation of Mexican contract laborers to work in agriculture and on the railroads. The Contract Labor Law of 1885 was  repealed to allow indentured servitude, once again. This set the precedent for all future indentured labor programs. The Bracero program was extended until 1964.
 
 

1932

The Immigration Act of 1924 was amended so that the specified classes of nonimmigrant aliens be admitted for a prescribed period of time and under such conditions, including bonding where deemed necessary, as would ensure departure at the expiration of the prescribed time or upon failure to maintain the status under which admitted. [9] This set actual timelines for the length of time the alien could work in the US and set the precedent that is still used for temporary visas such as H-1B. It also gave employers immense power over workers because termination of employment was a prelude to deportation. 
 
 

1917

The Immigration Act of 1917 denied admission to all "persons...who have been induced ...to migrate to this country by offers or promises of employment." The 1917 Immigration Act also imposed a head tax on immigrants and excluded immigrants over 16 who could not read at least 40 words in any language.

California farmers complained of labor shortages, and with "Food to Win the War" as a motto, they persuaded the US Department of Labor (DOL) in May 1917 to suspend the head tax and the literacy test for temporary Mexican farm workers. Thus, as an exception to the Immigration Act of 1917, US farmers who could demonstrate that they faced labor shortages were permitted to recruit Mexican workers who could remain in the United States for up to one year. These Mexican workers had contracts that required them to remain with the farmer who recruited them, but they had to repay growers if they grower paid their transportation. Many Mexican workers many arrived in debt, and piled up more debt at stores operated by US farmers. There was a great deal of Mexican dissatisfaction with the program by the time it ended in 1922. [10]

 
 

1907

The Immigration Act of 1907 required aliens to declare intention of permanent or temporary stay in the United States and officially classified arriving aliens as immigrants and nonimmigrants. [9] This classification has been used up to the present time.
 
 

1885

Indentured Servitude was outlawed when the Alien Contract Act of 1885 was passed to prohibit the importation of aliens under contract for the performance of labor or services of any kind. This was a reaction to the importation of "coolie" labor from China, a practice itself a successor to the institution of indentured servitude that was widespread in the 17th and 18th centuries.[6] This law didn't accomplish much because there were no enforcement provisions. [14]
 
 

1868

The National Labor Union (NLU) successfully repealed government support for the Contract Labor Law but private employers still were allowed to use indentured labor. [21] 
 

1864

The Act to Encourage Immigration Law was passed. It is also known as the Contract Labor Law. It required employees to reimburse their employers for transportation costs. The workers were indentured and received no pay during their repayment period. [21]
 
 

1855

The Passenger Act of 1855 required that there be separate reporting of the number of permanent and temporary entrants.
 
 

1819

The Steerage Act of 1819 established the official collection of immigrant arrival data and was the first Federal law to distinguish permanent immigrants from alien visitors not intending to stay in the United States. The numbers of permanent and temporary visitors was counted together as one sum.

Remember, it's spelled H-1B, not H1B

 

References

[1]  "The Basics About Guest Worker Programs" By Bruce Goldstein, Farmworker Justice Fund, Inc,  Feb 2001 http://www.fwjustice.org/talking.htm]
[2]  "Issues of Legislation and Merit in Scientific Labor Markets by Eric Weinstein - Mathematics Department, MIT
http://www-nber9.nber.org/~peat/PapersFolder/Papers/Sloan.html]
[3] Ethnicity In Festival Landscapes: An Analysis fo the Landscape of Jaialdi '95 As a Spatial Expression of Basque Ethnicity Chapter 3" - by Michael S. Yatsko
http://scholar.lib.vt.edu/theses/available/etd-2230102449761431/unrestricted/etd7_chap3.pdf by 
[4]   "The H-1B Visa Debate in Historical Perspective: The Evolution of U.S. Policy Toward Foreign-Born Workers" By Margaret L. Usdansky Princeton University and Thomas J. Espenshade Princeton University Working Paper No. 11 May 10, 2000
http://www.ccis-ucsd.org/PUBLICATIONS/wrkg11.PDF
[5] "Doggett Annoyed by Stealth House Vote" Cox Washington Bureau 10-04-00
http://coxnews.com/washingtonbureau/staff/geewax/10-04-00DOGGETT1004COX.html]
[6] Captive Workers A Disturbing Trend in Immigration Policy" by Mark Krikorian, 1998
http://www.cis.org/articles/1998/IR33/captive.html
[7] "US Guest Workers: Experience and Issues" by Philip Martin University of California, Davis, 1999  http://www2.smu.edu/tower/P_Martin.html
[8] Overview of NAFTA/TN Visas - US Visa Law -  http://www.usvisa-law.com/nafta.htm
[9] "Immigration and Naturalization Legislation" Appendix 1 by the INS
http://www.ins.usdoj.gov/graphics/aboutins/statistics/statyrbook96/appendix.pdf
[10] Correspondence with Dr. Philip Martin, a UC Davis professor and expert on farm labor issues.
http://www.agecon.ucdavis.edu/Faculty/Phil.M/Martin.html
[11] "Make a Green Card the Real Payoff for Guest Workers" - by Paul Donnelly  LA Times Feb 12, 2001
[12] "Senate ready to tackle guest worker treaty, Gramm says" - Agricultural Personnel Management Program University of California 1/1/01
[13] "Summary of Results Worldwide IT Trends & Benchmark Report 2001" by Dr. Howard A. Rubin http://www.metricnet.com/analysis2001.pdf
[14] "American Unionism and U.S. Immigration Policy" By Vernon M. Briggs, Jr. August 2001
http://www.cis.org/articles/2001/back1001.html
[15] "Immigrants and the Labor Movement," Policy Resolutions Adopted October 1993 by the AFL-CIO Convention (Washington: AFL-CIO, 1994), p. 13.
[16] "H-1B and the AFL-CIO" - Dr. Norman Matloff's Age Discrimination/H-1B Newsletter 7/5/2001 
[17] "Debunking the Myth of a Desperate Software Labor Shortage", by Dr. Norman Matloff, Section 2.5.2 Others: AFL-CIO, AEA, APG, Washtech, Etc. http://heather.cs.ucdavis.edu/itaa.real.html
[18] "Debunking the Myth of a Desperate Software Labor Shortage", by Dr. Norman Matloff, Section 2.3.5 A Bill Passed in Stealth 
http://heather.cs.ucdavis.edu/itaa.real.html
[19] Email conversation with Dr. Norman Matloff 12/16/2001
[20] "Labor Fights for Immigrants" by David Bacon - The Nation May 21, 2001
[21] "American Unionism and U.S. Immigration Policy" by Vernon M. Briggs
[22] "Immigration Reform," AFL-CIO Policy Resolution Adopted 1985 pp 45-46
[23] H-1B Series: The H-1B "Cap" by George N. Lester IV 
www.ilw.com/lawyers/colum_article/articles/2002,0812-lester.shtm
[24] "21st Century Homesteading Act (Introduced in Senate) S 1342 IS 107th CONGRESS, 1st Session, S. 1342, To allocate H-1B visas for demonstration projects in rural America, In the Senate of the United States, August 2, 2001
[25] "New Guidance Memo on AC21 and H-1B 7th Year Extension"
http://www.uslawnet.com/Englishhome/News/messages/195.htm

 

04/13/09