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Summary of the New Technology Worker Temporary Act

Additional Visas

• fy 2000, 2001, 2002 No cap on the number of visas available

Conditions

In 2001-02, additional requirements to be met for those visas above current law are as follows:

The petitioning company must demonstrate that it has:

a) increased its number of American employees over the last year (disregarding spun-off divisions),

b) increased the total compensation to American employees over the last year, and

c) increased the average compensation to American employees over the last year.

The high-tech companies that are calling for more H-1Bs visas are growing at a fast rate, hiring all the Americans they can find, and sharing their extraordinary profits with their employees. These companies need additional H-1B aliens in order to keep up these growth rates and to continue to provide new opportunities for American workers. The H-1B quota increase is intended to benefit these companies.

However, companies that are laying off large numbers of American employees or slashing their salaries should not have the opportunity to use an H-1B visa worker.

Final regulations implementing all provisions of the American Competitiveness and Workforce Improvement Act of 1998 must be in effect.

The 1998 compromise H-1B legislation (the American Competitiveness and Workforce Improvement Act) increased the annual H1B cap and at the same time added safeguards for American workers. While the extra visas became immediately available, the substantive protections have never been implemented because the Administration has never issued final regulations. Thus, the 1998 compromise has not been carried out.

Additional Requirements for All H-1B Visas

H-1B visas will only be available to aliens who will be paid over $40,000 a year (unless working at universities).

High-tech companies need H-1B visas to employ “the best and the brightest” aliens.

Employers shall provide to the Labor Department in electronic form specified information about each H-1B alien employed (including name, country of origin, academic degree, job title, start date and salary level). The Labor Department shall make such data available on the Internet.

The H-1B program will become completely transparent when information on the use of the program becomes widely available to Americans. This will increase the confidence of the American people in the program. It will also provide information about the demand for technology worker visas.

Fraud Prevention

H-1B aliens must work full time (other than those employed at universities).

Employers currently can petition for part-time workers. Companies doing this may be marginal operations that have trouble meeting the requirements of the H-1B program.

Companies filing H-1B petitions that do not have assets of $250,000 must provide documentation of their business activity such as a copy of a lease, business contracts, and tax ID numbers.

Under current law, there are no minimum requirements for an employer to file an H-1B petition. H-1B petitions are sometimes filed by questionable companies that have few, if any, assets. These may be “front” companies set up solely to apply for H-1B visas to circumvent the family reunification process or are marginal companies whose level of business activity may be insufficient to pay the required salary to an H-1B alien.

The provision of current law that allows aliens to substitute work experience for a degree is eliminated.

Current provisions encourage overstated and specious claims as to work experience. Assuring that H-1B professionals have college degrees will assure that only well-qualified true professionals will come here to work. The alien of extraordinary skills who does not have a college education can come on an “O” temporary visa.

When an alien applies for an H-1B visa based on a degree from an educational institution outside of the United States, it must be verified by a consular office or its designee located in the country where the degree was granted.

The H-1B program is vulnerable to fraudulent claims of foreign degrees -- counterfeit diplomas from real and fictitious foreign universities and diplomas from institutions not meeting the standards of an American college education. The individuals most able to verify foreign degrees are Department of State officers working in the countries where the diplomas are supposedly or they can consult private credentialing services working for the State Department.

An H-1B petition must be filed on behalf of any alien who is coming to the United States to work in a specialty occupation regardless of the source of the alien’s pay.

Current Department of State regulations for “B” visitor visas permit the issuance of visas to certain aliens “normally classifiable as H-1B.” Employers who pay aliens from a source outside the U.S. can use this provision to avoid labor attestations and other requirements of the H-1B program designed to protect U.S. workers.

Employers must submit to the Department of Labor each year the “W-2" wage withholding statements for their H-1B employees.

This provision will help enforce current provisions of the law.

H-1B petitioners must pay a special fee ($100). The funds will be earmarked for H-1B anti-fraud work and split evenly between the INS and the State Department.

The anti-fraud efforts of the Department of State and INS with respect to the H-1B program often falter for lack of resources. The anti-fraud fee would provide more funding for field investigations and joint inter-agency anti-fraud projects. It would also provide funding to pay for deportations of aliens who were admitted to the country based on a fraudulent H-1B application.

State Department Tabulation of H-1Bs

The Department of State would be responsible for counting H-1B visas.

The INS has consistently had problems tabulating usage of the H-1B program. The Department of State, conversely, has been keeping records for the various numerically limited immigrant visa categories for more than 40 years without problems.

Extension of Expiring Provisions

Provisions of the American Competitiveness and Workforce Improvement Act of 1998 that expire after fy 2001 will be extended through fy 2002.

If we are extending additional H-1B numbers through 2002, we should also extend the expiring worker protection provisions from the American Competitiveness and Workforce Improvement Act.

Standards for Issuance of H-1B Visas

Aliens seeking H-1B visas to teach American students must demonstrate proficiency in English.

We should not subject students in college to teaching assistants who cannot speak English well.

Contact: Allen Kay/Chairman Lamar Smith
202-225-4236 (O)
202-225-2659 (cell)
301-990-3749 (H)

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Committee on the Judiciary, Chairman, Subcommittee on Immigration and Claims * Chairman, Committee on Standards of Official Conduct * Committee on Science