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A Newsletter on Business Immigration May/June 2000

CONGRESSIONAL NEWS:

House Moves Wrong H-1B Bill; Leadership Pressed to Correct Process
Recent events in the House Judiciary Committee have demonstrated that H.R. 3983 (the Dreier/Lofgren bill) likely is the only H-1B measure that can pass the House this year. After three tries during three scheduled days of votes, the House Judiciary Committee in mid-May finally succeeded in voting on H.R. 4227, a bill sponsored by Representative Lamar Smith (R-TX).  In an 18-11, largely party-line vote, the Committee approved a substitute version of H.R. 4227, sponsored by Chairman Smith and Representative Sheila Jackson-Lee (D-TX). All Republican members voted for the bill, and all but two Democrats, Representatives Jackson-Lee (D-TX) and Rick Boucher (D-VA), opposed H.R. 4227. <

The business community opposes H.R. 4227, even as amended, and strongly supports H.R. 3983 as the only bi-partisan bill that meets the needs of industry.  The amended H.R. 4227 makes only the following minor changes:

• Drops a requirement that H-1B recipients’ names be posted on the Internet. However, the measure still would mandate that the company, salaries, positions, nationalities, and academic credentials of H-1B professionals be posted on the Internet.  Thus, people could still identify, and possibly retaliate against, specific individuals.  

• Eliminates provisions that would have shifted verification of foreign educational degrees from the INS to the Department of State (DOS) and would have required DOS to count H-1B visas.  

• Eliminates a proposed requirement that employers must demonstrate to the Department of Labor (DOL) that they had hired more American workers and raised the average salaries of those workers over the previous year. The new version of H.R. 4227 still would require employers to show that they had raised the median salaries of American workers in the previous year. This provision would impose new paperwork burdens on businesses and may subject all payroll records to DOL scrutiny.

• Eliminates the requirement that DOL issue final regulations from the 1998 law before any new visas are issued.  The new version of H.R. 4227 states that DOL still must issue final regulations by September 1, 2000, although failure to do so would not impact H-1B visa availability.  

• Inserts a new provision requiring national studies of recruitment and hiring of minorities and other under-represented groups in the high-technology industry, the training that H-1B employers undertake for their U.S. workforces, and the degree of compliance with the provisions of the 1998 H-1B law.

The rest of the measure remains as introduced, and would:

• Set a minimum salary level of $40,000 for H-1B recipients. Observers have noted that many of the same Members of Congress who now endorse setting a $40,000 minimum wage for foreigners voted against a $1.25-an-hour hike in the minimum wage for Americans. This provision also seems to violate the United States’ commitments under GATS (the General Agreement on Trade in Services).  

• Eliminate companies’ ability to bring in H-1B-qualified foreign professionals using other business visas.   Thus, international transferees, treaty traders and investors, and international exchange visitors who are in specialty occupations would be required to get H-1B status rather than L-1, E-1/2, or J-1 status.  The provision also would eliminate B-1 in lieu of H-1B.

• Eliminate a provision allowing employers to substitute work experience for the educational requirements needed to obtain an H-1B visa. While employers often consider work experience in lieu of education in their hiring decisions, under the Smith/Jackson-Lee substitute, they cannot do so when hiring H-1B professionals.  

• Require any company applying for an H-1B visa to have minimum assets of $250,000 or file additional paperwork. This provision is not only anti-small business, but also would limit the ability of start up companies to use H-1Bs.  

• Require H-1B recipients to work 35 hours a week. As noted by Representative Zoe Lofgren (D-CA), this requirement could conflict with the Family and Medical Leave Act and other federal labor laws as well as GATS.

The Committee also approved two minor amendments to H.R. 4227.  One, sponsored by Judiciary Committee Chairman Henry Hyde (R-IL), would eliminate teachers from the minimum salary levels for H-1B recipients.  The other, offered by Representative Jackson-Lee, offers a partial fee waiver for schools that sponsor H-1B applications. Committee Democrats, while supporting H.R. 3938, also used the markup and earlier Committee meetings to push for other immigration issues.  Representatives Lofgren (D-CA), Conyers (D-MI), Frank (D-MA), Berman (D-CA), and Nadler (D-NY) tried unsuccessfully to link NACARA parity and a change in the registry date to the H-1B measure (See “H-1B Plus” below).

The employer community opposes the Smith/Jackson-Lee bill and is pressuring Representative David Dreier (R-CA), who is an original co-sponsor of H.R. 3983, to push for a vote on that bill.   Representative Dreier, as Chairman of the House Rules Committee, oversees the committee that determines the rules by which bills are to be considered on the House floor.  However, despite business support for H.R. 3938, House Republican Leadership has been insisting that Representative Smith control the process.  With the issue now out of the Judiciary Committee, business organizations are urging Chairman Dreier and House leadership to move H.R. 3983.  

In contrast to those lengthy and confusing proceedings, the House Education and Workforce Committee approved by voice vote and with bi-partisan support H.R. 4420, introduced by Chairman William Goodling (R-PA).  This bill would reallocate the funds received from H-1B filings to various DOL education and training programs.  Specifically, H.R. 4420 would ensure that any programs funded by these fees are used to provide education and training in H-1B qualifying occupations, and would forgive loans to math, science and technical education teachers.  Proponents of this measure argue that previously funded programs did not address the skilled worker shortages that are fueling the demand for additional H-1B visas.  Republican Members are hopeful that this measure will be attached to the final H-1B bill that goes to the floor for a vote, possibly in mid-June.

Senate H-1B Vote Held Up
When the Senate Judiciary Committee passed S. 2045, the Hatch/Abraham H-1B bill by a 18-2 vote at the beginning of March, H-1B advocates were hopeful that the Senate quickly would pass the bill.   However, the agreement to bring the needed bill to the floor has been held up by other pressing business, disagreements about proposed amendments, and individual Senators’ demands on unrelated matters. Several Senators have indicated their intention to attach to the H-1B bill other immigration and non-immigration measures, including relief for Syrian Jews, relief for certain Central Americans disadvantaged by previous legislation, a change in the registry date, agricultural worker legislation, and campaign finance.   In addition, some Senators are trying to make the lack of an agreement a partisan issue with which to bait the other party.  Senate leadership on both sides of the aisle have expressed frustration with the situation.  Negotiations are ongoing, and while not yet concluded, are expected to lead to an agreement to proceed.

This ongoing wrangling only delays passage of this much-needed legislation. H-1B advocates need to make their voices heard by contacting their Senators and urging them to press their leadership to bring S. 2045 to a vote NOW.

Calls for "H-1B Plus" Come from Many Sources
Many Members of Congress and pro-immigration advocates have been urging Congress to broaden its immigration agenda beyond H-1B visas this session. This month, the White House weighed in on the issue. In a May 11 letter to Congress, the Administration stated its support for including NACARA equity of relief and a registry date change in H-1B legislation.

In his letter to Chairman Henry Hyde (R-IL) of the House Judiciary Committee and other congressional leaders, Gene Sperling, Director of the National Economic Council and Assistant to the President for Economic Policy, wrote: “As we consider allowing more foreign temporary workers into this country to meet the needs of our high tech industry, it is critical that we take this opportunity to correct two long-standing injustices currently affecting many immigrants already in our country. The Nicaraguan Adjustment and Central American Relief Act (NACARA) should be amended to provide equitable treatment for other Central American immigrants, and the Date of Registry should be changed to offer long-term immigrants with longstanding ties to this country the opportunity to apply for legal resident status.”

Republican House Leadership responded that the proposal could complicate efforts to increase the H-1B cap by raising a partisan issue on what has become bi-partisan legislation. Representative Lamar Smith denounced the move, alleging that the Administration had “turned its back on American workers and pandered to illegal aliens.”

Support for the inclusive proposal has come from different organizations.  Less than a week after the Administration later, on May 16, a new left-right coalition announced its support at a Capitol Hill press conference organized by Jack Kemp, former Republican vice presidential nominee and co-director of Empower America, and Henry Cisneros, the President of Univision and former Secretary of the U.S. Department of Housing and Urban Development in the Clinton Administration.  More recently, the National Restaurant Association, noting that its members are experiencing problems both in hiring enough personnel and ensuring the legal status of the employees they do hire, sent a letter to Senator Henry Reid (D-NV) endorsing his bill that would change the registry date to allow eligible individuals present in the US since before 1986 an opportunity to obtain permanent residence.   The National Restaurant Association is a member of the Essential Worker Immigration Coalition (EWIC), a group of employers and associations interested in reforms to the immigration system for the “essential workers” of our economy, i.e., unskilled and lesser skilled workers in all sectors of the economy. These initiatives have raised these issues’ profiles both in Congress and nationwide and have helped push them to the top of the agenda for the upcoming elections.

Section 110 Deal Reached Between House, Senate and Industry
Following months of negotiations between industry representatives, the Administration and Members of Congress, Representative Lamar Smith (R-TX) and Senator Spencer Abraham (R-MI) announced an agreement to amend Section 110 of the Illegal Immigration and Immigrant Responsibility Act of 1996 (IIRAIRA) to no longer require an automated entry-exit system at all ports of entry to the United States.  Instead, the INS would create an integrated database of all entry and exit data that currently is collected.  Then Representative Smith and Senator Abraham quickly introduced the “Immigration and Naturalization Service Data Management Improvement Act” concurrently in the House and Senate that reflects this agreement.   Both the House and Senate have approved the bill, which awaits the President’s signature.

This measure expressly prohibits INS from using the legislation to introduce new entry or exit documentary requirements on any visitors to the country.  Instead, it would phase in implementation of the new searchable database system at land borders, seaports, and airports.  The measure also would create a new task force of government agencies and private sector interests to evaluate the need and costs of any additional measures.

All parties hailed the agreement as a victory. Senator Abraham stated, “The agreement strikes the right balance in enhancing our security and immigration enforcement needs while ensuring that we preserve the jobs and other economic benefits….” Representative Smith also praised the agreement.  Passage of this legislation represents a victory for the Americans for Better Borders (ABB) coalition, which was formed three years ago to eliminate the entry-exit control requirements of Section 110.  Business leaders, trade, travel, tourism and legal organizations and representatives of the Canadian and Mexican governments worked to achieve this victory.

SPOTLIGHT:

Employers and Senior High Tech Workers to Benefit from Class Action Lawsuit Challenging INS Rules on Advanced Degree Equivalency by Ron Wada, Esq. and Warren R. Leiden, Esq., Berry, Appleman & Leiden LLP

Senior level high tech workers and their attorneys won a significant victory in May in a lawsuit filed over the Immigration and Naturalization Service’s interpretation of “equivalence to an advanced degree” for certain employer-sponsored immigrants.   This case demonstrates the power of the courts as the place of last remedy to agency actions, and will have far-reaching effects on future interpretations of degree equivalency in immigration law.

For the last couple of years, INS Service Centers have been denying some cases filed in the employment-based second preference (EB-2) category for individuals who, in lieu of an actual master’s degree, presented evidence of a bachelor’s degree and five years of professional experience in the field (the test required under INS regulations).   The legislative history specifies that Congress intended a bachelor’s degree plus five years of relevant experience to be considered equivalent to a master’s degree.  However, the Department of Labor (DOL) and INS interpretations of the requirements have been anything but clear.  As a result, immigration attorneys sought clarification of the requirements, both individually and through informal liaison mechanisms established with the INS and DOL by the American Immigration Lawyers Association (AILA).   But such clarification proved elusive.  The two agencies could not agree on a consistent set of requirements and would not specify what set of job requirements and employee qualifications would pass muster for EB2 petitions. 

Because these denials were contrary to the statutory requirements for the category, a lawsuit was filed in federal court in February 2000, requesting that the agency be enjoined from continuing to deny these cases.  On May 4, the U.S. District Court in San Francisco, California issued an Order granting class certification and entering a permanent injunction against INS. The court order requires INS to reconsider its previous decisions denying EB2 status to individuals in the defined class according to more liberalized standards announced by INS in response to this lawsuit.  The order also compels INS to accept applications for permanent resident status filed by class members in advance of the approval of their EB2 petitions, so that class members will not have to leave the U.S. when their temporary work visas expire, and will not be prevented from applying for permanent residence at a later date due to a rollback in visa availability. 

These are extraordinary remedies that would not have been possible in the absence of federal court action.  Equally remarkable is the speed with which the suit progressed to a final order and permanent injunction, which effectively resolves an issue that has plagued U.S. employers, especially high tech workers in the information technology industry for the past two years.  Hundreds of senior level professionals, especially those from India and China who are facing restrictions in visa availability for their countries and their employers, will benefit from the court’s order.

What did the court order?  

• Members of the certified class (and their spouses and children) may file adjustment of status applications with the INS without waiting for INS to approve the underlying EB2 I-140 petition.  

• INS must expeditiously readjudicate I-140 petitions for a limited number of class members who are currently abroad and had to depart the US because their EB2 petitions were denied and their nonimmigrant status in the US expired.

What are the eligibility criteria for obtaining the benefits of the court order?

To obtain the benefits of the court order, an individual must satisfy the definition of one of the two defined sub-classes:

• EB2 I-140 petition was filed on or before March 20, 2000;  

• the employer must have stated a minimum job requirement on Form ETA 750A of a bachelor’s degree plus at least five years experience;

• if the I-140 petition was still pending, either at a service center or at the AAO, on March 20, 2000, the individual is in sub-class 1;  

• if the I-140 petition was subject to a final order denying the petition (denied by the service center and not appealed, or appealed and subsequently denied by the AAO), then the individual is in sub-class 2.

An individual is not eligible for the class benefits if any of the following conditions apply:  

• The ETA 750A states a minimum education and experience requirement of a bachelor’s degree plus less than 5 years of experience (e.g., BS plus 2 years experience).  

• The ETA 750A does not include a bachelor’s degree as a minimum education requirement (e.g., MS or equivalent only).  

• The individual’s priority date is not current.  

• The EB-2 petition was denied by the INS before July 1, 1997, and no appeal was timely filed.  

• The individual fails to file applications for adjustment, employment authorization or advance parole by November 1, 2000  

• The individual is subject to an administratively final decision (EB-2 petition was denied by a service center and was either not appealed, or was appealed and denied by the AAO) and fails to file a motion to reconsider the petition by November 1, 2000.  

• The individual meets the class definition but is outside the United States and fails to submit a completed questionnaire and all necessary supporting documents to class counsel at Berry, Appleman & Leiden before August 8, 2000.

What should employers and individuals do to receive the benefits of the court order?

• For most individuals, it is no longer necessary to formally join the class; instead, if you meet the definition of either sub-class, you may receive the benefits of the court order by filing the appropriate documents with the INS.  

• Certain individuals may be eligible for expedited processing of their EB2 petitions.  

For further information:

Further information on eligibility and status of the suit is available on the Berry, Appleman & Leiden website at www.USABAL.com, or by sending an email inquiry to eb2litigation@USABAL.com.  

POINT OF INTEREST . . .

American Immigration Law Foundation tells INS: Let My Healthcare Workers In!
The American Immigration Law Foundation (AILF) filed suit this month in federal court against the INS seeking regulations to allow thousands of healthcare workers to become permanent residents.

A 1996 law required all healthcare workers applying for green cards to obtain certification form U.S. credentialing organizations.  Following passage of the law, INS stopped processing all pending healthcare cases pending issuance of regulations regarding the certifications.  The INS failed to issue regulations until 1998, following a prior lawsuit by AILF on behalf of nurses and occupational therapists.  However, those regulations only addressed those occupations in the lawsuit, leaving foreign Speech/Language Pathologists, Medical Technologists, Medical Technicians, and Physical Therapists and other healthcare workers out in the cold, and in legal limbo.

The current lawsuit seeks to force the INS to issue the regulations that will allow these cases to be decided.   Employers or employees seeking more information should contact their immigration attorney.